Kifer v. School District No. 394

SHEPARD, Justice,

dissenting.

In the usual and ordinary course of events, and in an ordinary and usual case, I would be inclined to join the majority and dismiss the appeal. I believe that this case, however, is neither usual nor ordinary. As indicated in the title of the cause, this action, insofar as reflected in the record, is between plaintiff-appellant and defendant-respondent. The record does not reveal any service of process on any other person (although the majority denominates one Steven Stanley as a co-defendant), and no other person, insofar as the record indicates, has made an appearance. .

Whether or not there were or are other parties to the proceedings below was neither mentioned in the briefs of the parties nor argued on this appeal. Neither party addresses the appealability of the judgment with prejudice which was entered by the trial court in favor of defendant-respondent School District.

I am at a loss to understand the posture which the case will assume on the issuance of this Court’s remittitur. The trial court has rendered judgment in favor of the only party before this Court (and, insofar as we know, the only party before the trial court). Evidently, the cause is to remain in limbo forever or the plaintiff must now produce a *413party before the trial court (assuming the statute of limitations has not run), attempt to litigate, being aware at all times that he has already lost what is apparently the only deep-pocket defendant.

If the merits of the cause were to be reached, I would hold that the trial court erred in the selection of the ground on which summary judgment was based. Here, the record does not disclose if the trial court gave consideration to the minority of the Kifer boy. As indicated in Larson v. Emmett Joint School Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978), minority and incapacity are factors required to be considered in the ascertainment of when a claim against a political subdivision of the state reasonably should have been discovered.

In my opinion, however, the respondent School District correctly asserts that the order of the trial court is nonetheless correct on an alternative theory and, hence, should be affirmed. See, e. g., Robison v. Compton, 97 Idaho 615, 549 P.2d 274 (1976); City of Weippe v. Yarno, 96 Idaho 319, 528 P.2d 201 (1974). I.C. § 6-904(4) excepts a governmental entity from liability for any claim which “[ajrises out of assault, battery, false imprisonment, false arrests, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” Although this provision of the statute has not yet been interpreted, see Haeg v. City of Pocatello, 98 Idaho 315, 563 P.2d 39 (1977); Ralphs v. City of Spirit Lake, 98 Idaho 225, 560 P.2d 1315 (1977), it is virtually identical to 28 U.S.C. § 2680(h) prior to the amendment of the federal statute in 1974.

The language “arises out of” has been construed by several federal courts in factual contexts reasonably similar to that presented here. I find such reasoning persuasive. In Collins v. United States, 259 F.Supp. 363 (E.D.Pa.1966), the plaintiff had been pushed, hit, and struck by an employee of the Post Office. He had alleged that the government was negligent in hiring and retaining an employee when it knew of his violent propensities. The court stated:

“Plaintiff argues that his claim is not founded on the assault and battery, but rather on the negligence of the Government. We have found no case reaching this precise question, nor is the legislative history at all helpful. We are left, then, with the words of the Act as our only guide. It is true that the claim here is predicated on negligence. However, that negligence would have been without legal significance absent the alleged act of Brosz. Without that, there would have been no actionable negligence. It was the attack which served to attach legal consequences to defendant’s alleged negligence. Congress could easily have accepted claims for assault. It did not; it used the broader language excepting claims arising out of assault. It is plain that the claims arose only because of the assault and battery, and equally plain that it is a claim arising out of the assault and battery. This being so, the United States has not waived its immunity as respects this claim.” Id. at 364. (Emphasis in original.)

Neither the theory upon which plaintiff proceeds nor the precise language of the pleading is decisive. Rather, the controlling factor is whether the claim arises out of an assault. Lambertson v. United States, 528 F.2d 441 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976); Gaudet v. United States, 517 F.2d 1034 (5th Cir. 1975); Blitz v. Boog, 328 F.2d 596 (2d Cir.), cert. denied, 379 U.S. 855, 85 S.Ct. 106, 13 L.Ed.2d 58 (1964); Coffey v. United States, 387 F.Supp. 539 (D.Conn.1975); Nichols v. United States, 236 F.Supp. 260 (N.D.Miss.1964).

In the instant case, it is clear to me that the claim of the plaintiff against the School District is one which “arises out of assault” and, therefore, is barred by the provisions of I.C. § 6-904(4). I would affirm the judgment entered by the trial court.

SCOGGIN, J. Pro Tem., concurs.