dissenting:
The majority’s opinion on denial of petition for rehearing purportedly relies on this Court’s recent decision in Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986), to support its decision in this case. However, Durtschi is readily distinguishable from the present case. In Durtschi, the alleged negligence of the school district occurred several months before Durtschi’s tortious acts, and was allegedly what made possible the injury inflicted by Durtschi upon the plaintiffs in that case. However, in the present case the rebranding and selling of Oppenheimer’s cattle by Bolen occurred prior to any alleged negligent inspection by the deputy brand inspector. It is clear that Durtschi is totally inapposite to the present case.
The majority opinion on denial of petition for rehearing, however, goes much further than the holding in the initial opinion in this case. The opinion on rehearing, without citing any authority for the proposition, now holds that the “brand inspector had the ... duty to insure that Bolen had not *432fraudulently rebranded someone else’s cattle.” While it is a proper role of government to protect its citizens from unlawful conduct of individual members of society via the law enforcement and police powers of the state, government does not have a “duty to insure” against damage caused by the unlawful conduct of third parties. Government was never intended to be an “insurer” or guarantor of the safety of the person or property of the general public.
In the past few months today’s majority, by its interpretation of the Idaho Tort Claims Act, has taken the Court, and indeed the state, on a path which is leading toward total governmental responsibility for any injury to any person. The majority has overruled the cases of Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979), and Chandler Supply Co., Inc. v. City of Boise, 104 Idaho 480, 660 P.2d 1323 (1983). More critically, however, after eliminating much of the immunity contained in the Tort Claims Act, the Court has then created new torts which never existed before and which were never contemplated by the legislature when it enacted the Tort Claims Act. See Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986); Jones v. City of St. Maries, 111 Idaho 733, 727 P.2d 1161 (1986); Lewis v. Estate of Smith, 111 Idaho 755, 727 P.2d 1183 (1986). Today in its opinion on denial of petition for rehearing, the majority goes one giant step further by now holding that the state has a responsibility to “insure” against the tortious acts of private individuals. There is no justification either in the common law or in the statutes for such an expansion of tort liability.
When the consequences of the language in today's opinion on denial of rehearing fully materialize, the resulting fiscal obligation which it will impose upon both state and local governmental units will inevitably cause a major shift of government funding away from other essential government services, such as education and health and welfare, to meet the new tort responsibility created by today’s opinion. While the legislature has limited the amount to which a governmental unit can be held liable in tort, I.C. § 6-926, such limits still impose a significant burden upon the smaller governmental units found in the state, such as school districts and the smaller cities and counties of the state. However, it is the rapid expansion of the circumstances giving rise to liability, as much as the excessive amount of the claims awarded, which is creating the tort law crisis which the state faces today. Governmental entities such as cities and school districts certainly do not have the ability to self-insure against such risks, and many governmental units are finding that insurance from the private sector is entirely unavailable or prohibitively expensive. Furthermore, it is important to note that the limitation on the amount recoverable as damages in I.C. § 6-926 does not in any way limit the litigation costs in defending such suits, which costs are themselves a huge burden on the operation of government, often exceeding the ultimate liability imposed.