dissenting:
To reach their result in the present case, the majority has overturned our prior case law interpreting the Idaho Tort Claims Act (ITCA). But that is not all. To achieve their result, the majority has also had to make fundamental tort law changes, overturning our prior case law and creating a new tort (negligence supervision) which, prior to the present opinion, was non-existent under the laws of this state. Finally, the majority makes all these changes retroactively, contrary to the express language of the Idaho Tort Claims Act and our prior case of Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970). For all these reasons I dissent.
I.
Governmental Immunity
A. The “parallel function” test.
The “parallel function” or “parallel liability” test enunciated in Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979), contrary to the majority’s assertion, is founded on the express wording of the ITCA and is in harmony with the decisions of both the federal courts and the courts of our sister states interpreting similar language in their counterparts to our tort claims act.
It was the United States Supreme Court’s decision in United States v. Feres, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which established that the statutory language “in the same manner and to the same extent as a private individual under like circumstances” contained in both the Federal and the Idaho Tort Claims. Acts required a parallel liability or parallel function analysis. Feres was a case involving three combined claims, two for medical malpractice by military doctors and a third for negligent maintenance of a heating plant in an Army barracks in New York state. In applying the above quoted language, the Court in Feres stated:
“One obvious shortcoming in these claims is that plaintiffs can point to no liability of a ‘private individual’ even remotely analogous to that which they are asserting against the United States. We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. Nor is there any liability ‘under like circumstances,’ for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command. The nearest parallel, even if we were to treat ‘private individual’ as including a state, would be the relationship between the states and their militia. But if we indulge plaintiffs the benefit of this comparison, claimants cite us no state, and we know of none, which has permitted members of its militia to maintain tort actions for injuries suffered in the service, and in at least one state the contrary has been held to be the case. It is true that if we consider relevant only a part of the circumstances and ignore the status of both the wronged and the wrongdoer in these cases we find analogous private liability. In the usual civilian doctor and patient relationship, there is of course a liability for malpractice. And a landlord would undoubtedly be held liable if an injury occurred to a tenant as the result of a negligently maintained heating plant. But the liability assumed by the Government here is that created by ‘all the circumstances, ’ not that which a few of the circumstances might create. We find no parallel liability before, and we think no new one has been created by, this Act. Its effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities.” Feres, 340 U.S. at 141-142, 71 S.Ct. at 157 (emphasis added.)
That analysis in Feres was further supported by the fact that 28 U.S.C. 2680(j) *252contained an exception to liability under the Tort Claims Act for “any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” (Emphasis added.) Thus, Congress had specifically excepted the waiver of immunity of the military forces, but only for “combatant activities ... during time of war.” The Feres case arose from circumstances which were “noncombatant activities in peace,” and accordingly the conduct in question in those three combined cases did not fall within any exception in Section 2680 of the Tort Claims Act. If anything, the negative inference of subsection (j) would be that, when the country was at peace, claims arising out of the non-combatant activities of the military would be subject to the tort claims waiver of immunity. Nevertheless, the Supreme Court held that, “We find no parallel liability before, and we think no new one has been created by, this Act.” 340 U.S. at 142, 71 S.Ct. at 157.1
Thus the “parallel liability” or “parallel function” analysis commenced, not with our Idaho Dunbar case as the majority opinion mistakenly asserts, but with the Supreme Court’s first analysis of the Federal Tort Claims Act in Feres. The decision in the Feres case has been reaffirmed by the United States Supreme Court in every case since that time to, and including, its most recent unanimous pronouncement (8-0), in United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). The sole wavering in an otherwise straight line of cases was the United States Supreme Court’s 5-4 decision in Indian Towing, which was critical of the earlier case of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). However, the Dalekite decision was based entirely upon the Supreme Court’s prior decision in Feres, which has been reaffirmed continuously by the United States Supreme Court from its inception through the Court’s most recent decision in United States v. Shearer, supra. Thus, it is that Court’s decision in Indian Towing which is out of step with all of the remainder of the United States Supreme Court decisions.2 In United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), in reaffirming its prior decision in Dalekite and, in effect, substantially overruling its decision in Indian Towing, the United States Supreme Court, referring to Indian Towing, stated “the Court’s reading of the Act admittedly has not followed *253a straight line____” United States v. Varig Airlines, 104 S.Ct. 2755, 2764.3
Thus, from the very first United States Supreme Court case, United States v. Feres, supra, to the most recent United States Supreme Court case, United States v. Shearer, supra, and every case in between, with the exception of Indian Towing, the United States Supreme Court has followed the parallel function, or parallel liability analysis of Feres.
Neither is the parallel function analysis of Dunbar an aberration among state court decisions interpreting tort claims acts, as the majority suggests. That analysis has been employed by the other state courts which have adopted the Federal Tort Claims Act language, including the states of Washington, Ohio and Florida.
The Washington Tort Claims Act, similar to the Idaho and federal acts, waives the immunity of the state “to the same extent as if it were a private person or corporation.” Wash.Rev.Code § 4.92.090.4 However, the Washington act contains none of the exceptions to waiver listed in the Federal Tort Claims Act at 28 U.S.C. 2680 or the Idaho act. The Washington act is a total waiver of immunity, without listing any exceptions, creating liability on the state “to the same extent as if it were a private person or corporation.” Nevertheless, in the case of Edgar v. State of Washington, 92 Wash.2d 217, 595 P.2d 534 (1979), the Washington Supreme Court applied the parallel function analysis to the claim of a member of the Washington Air National Guard, who sued the state for damages which he claimed to have suffered as a result of being suspended from certain assignments of duty with the Air National Guard. The complaint alleged mental distress, humiliation, harassment and threats by the plaintiff’s superior officers, all viable torts under Washington law. The Washington Supreme Court, noting the “private person or corporation” language of the Washington Tort Claims Act, stated the issue in the case to be as follows: “The question is, does the plaintiff seek to hold the State liable ‘to the same extent as if it were a private person or corporation’ or does he seek to impose upon it a liability which has no parallel in the private sector?” 595 P.2d at 538 (emphasis added). The court held that, because of the “private person” language of the state act, plaintiff was required “to show that the conduct *254complained of constitutes a tort which would be actionable if it were done by a private person in a private setting.” 595 P.2d at 539. After analyzing the United States Supreme Court’s decision in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Washington Supreme Court applied the Feres parallel function analysis to the facts of the case and stated, quoting Feres, “[T]here is no comparable function in the private sector and thus no common law action in which a private person would be liable under similar circumstances.” 595 P.2d at 538. The Washington court upheld the trial court’s dismissal of plaintiff’s action based upon its parallel function analysis. This is the very same analysis which this Court applied in Dunbar, where we held, in language almost identical to the Washington court, that “[t]here are not parallel functions in the private sector” to the duties of the state mine inspector, and thus “[a] finding of liability for breach of those ‘duties’ running to plaintiffs would result in the creation of a new cause of action which we deem not to be contemplated by our legislature, and foreign to traditional concepts of the law of torts.” Dunbar v. United Steelworkers of America, 100 Idaho at 546, 602 P.2d at 44.
Three years prior to our Dunbar decision, the Ohio Supreme Court also applied a parallel function rationale in dismissing a case against their Industrial Commission for failure to conduct safety inspections. Shelton v. Industrial Commission, 51 Ohio App.2d 125, 367 N.E.2d 51 (1976). In Shelton, the plaintiff had alleged that the Industrial Commission of Ohio and other state agencies "were negligent in the performance of their statutory duties to make various inspections and investigations,” 367 N.E.2d at 51 (emphasis added), and that as a result plaintiff was injured when a boiler exploded at an Ohio sugar processing plant. Plaintiff’s claim was based upon certain statutory provisions which placed upon the governmental agencies the affirmative duty to investigate and set reasonable standards for hours and working conditions in the plants, and to “ascertain, fix, and order such reasonable standards for the construction, repair, and maintenance of places of employment as shall render them safe____” 367 N.E.2d at 52. The plaintiff alleged that the defendants had breached their duties under the statutes and therefore were liable under the Ohio Tort Claims Act. The Ohio Court, noting that the state’s waiver of immunity was limited to “the same rules of law applicable to suits between private parties ...,” 367 N.E.2d at 53, held that: “[A] private party’s duty to inspect and to enforce safety standards is not created by statute, but only by virtue of some other legal relationship and, hence, there is no rule of law making a private party liable for a failure to perform statutory duties of inspection and enforcement of safety standards which were enacted to protect the health, safety and welfare of all the citizens of Ohio.” 367 N.E.2d at 54. The Court then held that the statutes did not create a duty toward any particular person and accordingly held that since a private person could not recover on them there was no new cause of action created against the state. There being no parallel responsibility to a private party as to that imposed upon the Industrial Commission, and there being no private duty or liability based upon those statutes, the Court found no liability to the state.
Finally, the Supreme Court of Florida in Trianon Park v. City of Hialeah, 468 So.2d 912 (Fla.1985), upheld the dismissal of plaintiff’s action against the City of Hialeah for damages to condominium units as a result of the alleged negligence of the city building inspectors in their inspections of the condominiums during construction. The Supreme Court of Florida framed the issue as follows:
“Whether a governmental entity may be liable in tort to individual property owners for the negligent actions of its building inspectors in enforcing provisions of a building code enacted pursuant to the police powers vested in that governmental entity.” 468 So.2d at 914.
Utilizing a parallel function analysis, the court held that the government was not *255liable and dismissed plaintiff’s action. The court stated:
“How a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care.
“We find that the enactment of a statute giving a governmental entity the power to enforce compliance with the law does not, in and of itself, give individuals a new right of action that previously never existed.” 468 So.2d at 919, 922.
Thus, the parallel liability test did not, as asserted by the majority, “first surface in Dunbar.” Ante at 215, 723 P.2d at 759. Nor is the parallel function test an “implied exception” conjured up by a “self-constituted guardian of the [state] treasury,” as the majority opinion intimates.5 Ante at 223, 723 P.2d at 767. Furthermore, as the above cases indicate, derivation of such a test from the language of the ITCA is a legitimate interpretation of the express wording utilized by the legislature. Liability of a governmental entity under the ITCA exists only “if a private person or entity would be liable ... under the laws of the state of Idaho” and then only if none of the enumerated exceptions contained in I.C. § 6-904 apply.6
It is at once abundantly clear that there is no parallel in the private sector to defendant Board of Corrections (Board). There being no such parallel, there can be no parallel liability under I.C. § 6-903(a). Dunbar v. United Steelworkers of America, supra. Furthermore, as discussed later, there never has existed a cause of action at common law in this state in favor of a private citizen for failure of a law enforcement or quasi-judicial agency such as defendant Board of Corrections to perform its statutory duty of supervising probationers placed in its custody by court order. Jacobson v. McMillan, 64 Idaho 351, 132 P.2d 773 (1943); Worden v. Witt, 4 Idaho 404, 39 P. 1114 (1895).
B. The discretionary function exception.
In the present case, the trial court, as one of its reasons for dismissing the action, found that the discretionary function exception, I.C. § 6-904(1) applied. The majority’s analysis regarding the application of the discretionary function exception found at I.C. § 6-904(1) is flawed because it fails to properly focus on the conduct asserted by plaintiff as the basis of her claim against defendant Board. As will be more fully discussed in Part II.A(2), once the dross is removed from the allegations of plaintiff’s complaint it becomes clear that the essence of the alleged negligent conduct is not “negligent supervision” (an extremely imprecise term), as discussed by the majority; rather, the conduct alleged to have proximately caused plaintiff’s injuries is either: (1) failure to arrest defendant Bloom for violation of the terms of his probation; or (2) failure to cause Bloom’s probation to be revoked.7
*256Insofar as the second is concerned, plaintiff’s complaint clearly states no cause of action as to defendant Board. The Board of Corrections is simply without authority to revoke an order of probation. Revocation of probation is a purely discretionary function entrusted entirely to the courts, I.C. § 20-222, and such discretionary function falls within the ambit of I.C. § 6-904(1).
Insofar as the failure to arrest Bloom is concerned, the Board and its probation officers do have authority to engage in such action. I.C. § 20-227. However, a probation officer’s exercise of that authority is purely discretionary. The express wording of that statute indicates that use of the arrest power conferred therein is permissive rather than mandatory. “Any parole or probation officer may arrest a parolee or probationer without a warrant ... [if] the parolee or probationer has, in the judgment of said parole or probation officer, violated the conditions of his parole or probation.” I.C. § 20-227 (emphasis added).
Furthermore, the non-liability of law enforcement agencies for failure to arrest a lawbreaker or otherwise enforce the laws of a given jurisdiction (which perforce include court orders) is a rule of law accepted in nearly all jurisdictions which have addressed the issue. Dauffenbach v. City of Wichita, 233 Kan. 1028, 667 P.2d 380, 385 (1983) (police have immunity from liability on claims arising from performance or nonperformance of general duty to enforce laws of state); Zavala v. Zinser, 123 Mich. App. 352, 333 N.W.2d 278 (1983) (no liability for officer’s failure to intervene in fight which ultimately resulted in a gunshot wound to plaintiff); Crouch v. Hall, 406 N.E.2d 303 (Ind.App.1980) (police officers not liable for failure to properly investigate and apprehend rapist who one week later raped and murdered plaintiff's daughter); Everton v. Willard, 468 So.2d 936 (Fla. 1985) (no liability for failure to arrest drunk driver who is later involved in collision producing fatalities); Parker v. Sherman, 456 S.W.2d 577 (Mo.1970) (failure of police to enforce non-gambling statute not actionable); Tomlinson v. Pierce, 178 Cal. App.2d 112, 2 Cal.Rptr. 700 (1960) (no liability for failure of police officer to arrest individual even though he knew the individual was intoxicated and intended to drive an automobile); see generally Annot., 41 ALR 3d 700. The rationale for such a rule of non-liability was adequately expressed by the Fifth Circuit in United States v. Faneca, 332 F.2d 872 (5th Cir.1964), and in Smith v. United States, 375 F.2d 243 (5th Cir.1967).
“Just as the tasks of carrying out the orders of this Court ... are among the responsibilities of the [particular law enforcement agencies] ... so is the choice of means for performing these tasks peculiarly within their discretion.” Faneca 332 F.2d at 874.
And as stated in Smith, where plaintiff had alleged negligence on the part of the United States for failure “to arrest or prosecute the persons injuring his business.” Smith 375 F.2d at 244.
“The federal government’s decisions concerning enforcement of its criminal statutes comprise a part of its pursuit of national policy. If the government could be held liable for [failure to enforce its laws] ... its choices in this area could quite conceivably be affected by such a suit. Thus, a policy decision of the federal government might be influenced by a plaintiff with no governmental responsibility.
“Another holding [other than non-liability] could diffuse the government’s control over policies ... and irrationally concentrate political responsibility in fortuitous lawsuits.
*257“Whatever else [the discretionary function exception] may do, ... [it] prevents this diffusion of governmental power into private hands. ” Smith 375 F.2d at 247-48 (emphasis added).
Apart from my objections to the majority’s failure to properly focus on the alleged negligent conduct involved for purposes of analyzing the applicability of the discretionary function exception, I believe the Court errs in adopting the so-called “planning-operational” distinction. Answering questions regarding the applicability of the discretionary function exception is admittedly a difficult process. This difficult process will not be aided by the “planning-operational” standard. Such a distinction, in practical application, will prove to be illusive, if not specious. There is no discernible line of demarcation between where planning stops and operations begin. And, as the United States Supreme Court stated in United States v. Varig Airlines,
“ ‘[T]he “discretionary function or duty” that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities____ Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.’ [Dalehite v. United States, 346 U.S. 15, at] 35-36, 73 S.Ct. at 968.” United States v. Varig Airlines, 467 U.S. 797, 811, 104 S.Ct. 2755, 2764 (1984).
The utility of the “planning-operational” distinction will arise only in cases where it is not needed, i.e., easy cases where it undoubtedly will be used as makeweight. In the difficult cases it will only “prove to be another example of a distinction ‘so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation.’ ” Smith v. United States, 375 F.2d at 246.
This Court has traditionally been called upon in past decisions to draw the distinction between discretionary and ministerial action by governmental entities. We have adequately discharged this function in the past without the aid of a “planning-operational” test, and I fail to see why such a test is now called for. It seems entirely reasonable to me that when the legislature utilized the term “discretion” in I.C. § 6-904(1) it presumed that the term would be interpreted or applied in the same manner that this Court has traditionally made the determination of whether or not activity was discretionary. The holding in Chandler Supply Co. v. City of Boise, 104 Idaho 480, 660 P.2d 1323 (1983), is nothing more than a recognition of those prior determinations of whether or not challenged action constitutes discretionary action will be made in the same manner as it has always been made by this Court. The majority’s failure to recognize the import of our holding in Chandler has worked a great disservice in the present case, namely the adoption of the so-called “planning-operational” test.
The majority opinion finds this Court’s interpretation of the discretionary function exception contained in I.C. § 6-904(1), as set forth in Chandler, to be out of step with federal case law interpreting the equivalent provision in the Federal Tort Claims Act. I believe that conclusion is erroneous. The majority correctly notes that there is no unresolved inconsistency among the line of United States Supreme Court cases interpreting the discretionary function exception. Ante, at 226, 723 P.2d at 770. That consistent position of the United States Supreme Court was recently reaffirmed in the case of United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). In that case the court stated that in applying the discretionary function exception the following two principles must be followed:
“First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case____ Thus, the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee — whatever his or her rank — are of the nature and *258quality that Congress intended to shield from tort liability.
“Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals.” 467 U.S. at 813-14, 104 S.Ct. at 2765.
Additionally, in the Court’s earliest decisions regarding the discretionary function exception, it expressly refuted the very position or interpretation taken by the majority in the present case, i.e., the exception applies only to the planning or policy formation stages of governmental activity and not to the “operational” aspects of such activities. The Varig Court stated, quoting from Dalehite, “It is enough to hold, as we do, that the ‘discretionary function or duty’ that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities____ Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.” Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 968 (1953) quoted with approval in United States v. Varig Airlines, 467 U.S. 797, 811, 104 S.Ct. 2755, 2764 (1984).
In short, under the facts of this case, it can hardly be argued that defendant Board of Corrections was not “acting in its role as a regulator of the conduct of private individuals.” If the supervision of probationers does not constitute the regulation of the conduct of private individuals, then nothing does.8
II
Tort Law Analysis
The majority’s overturning Dunbar and Chandler is not sufficient to prevent dismissal of plaintiff’s action in the present case. Without more, plaintiff’s complaint is still subject to dismissal for failure to state a cause of action. It is not enough to prove that the state has consented to be sued, i.e., waived its immunity to suit. In waiving immunity, the ITCA does nothing more than waive the state’s immunity to action; it does not create a cause of action where none previously existed. I.C. § 6-903(f) states in part, “Nothing in this act shall enlarge or otherwise adversely affect the liability of an employee or a governmental entity. Any immunity or other bar to a civil lawsuit under Idaho or federal law shall remain in effect.” The majority chooses to ignore this directive of the Idaho legislature, stating, “It has been argued that the 1971 Idaho act was not intended to create new causes of action against the government in its business of governing.” Ante at 223, 723 P.2d at 766. Responding to that argument, the majority opinion, quoting from the United State Su*259preme Court’s opinion in Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 377, 1 L.Ed.2d 354 (1957), then states, “But the very purpose of the Tort Claims Act was to waive the government’s traditional all-encompassing immunity from tort actions and to establish novel and unprecedented government liability.” Ante at 222, 723 P.2d at 766.
However, I.C. § 6-903(a) specifically rejects this Rayonier “novel and unprecedented liability” doctrine. There is no comparable provision in the Federal Tort Claims Act to I.C. § 6-903(f), which rejects Rayonier’s “novel and unprecedented liability” doctrine, and therefore the majority’s reliance upon the Rayonier decision of the United States Supreme Court to the effect that “the very purpose of the Tort Claims Act was to ... establish novel and unprecedent governmental liability” is contrary to the express directive of the Idaho legislature in I.C. § 6-903(f). The basic premise motivating the majority in this case having been expressly rejected by the Idaho legislature in I.C. § 6-903(f), the entire tort analysis of the majority opinion is thus flawed. Because the majority erroneously approaches the tort law aspect of this case from the doctrine borrowed from the Rayonier case that the purpose of the Tort Claims Act was to establish “novel and unprecedented governmental liability,” when in fact the Idaho legislature stated that “[njothing in this act shall enlarge ... the liability of an employee or a governmental entity,” the whole basic approach of the majority opinion is wrong. If the majority opinion were true to the directive of I.C. § 6-903(f), and it followed the doctrine of our existing tort law cases of Worden v. Witt, 4 Idaho 404, 39 P. 1114 (1895), and Jacobson v. McMillan, 64 Idaho 351, 132 P.2d 773 (1943), the Court would be compelled today to affirm the district court and dismiss plaintiff’s complaint. Once the shield of immunity to suit is removed, a plaintiff must still affirmatively establish that the governmental entity, “if a private person or entity, would be liable ... under the laws of the State of Idaho” prior to a finding of liability as to the State of Idaho and the Board of Corrections. The majority’s analysis regarding this aspect of plaintiff’s case ignores our prior case law. Since the plaintiff seeks to hold the board liable for the negligence of its agent/employee (probation officer Housley), the doctrine of imputed negligence or respondeat superior is clearly implicated. To succeed under this doctrine, plaintiff must establish: (1) that the agent/employee’s conduct constituted actionable negligence, i.e., for all practical purposes plaintiff must make out a cause of action for negligence against Housley; and (2) that the agent/employee’s negligent acts were “within the course and scope of employment.” I.C. § 6-903(a); Restatement (Second) Agency § 243.
A.
Turning first to the cause of action for negligence against the agent/employee, it is by now axiomatic that the allegation of plaintiffs complaint, in order to state a cause of action for negligence, must set forth the following “concepts fundamental to any negligence action: duty, breach, proximate cause and damages.” Blake v. Cruz, 108 Idaho 253, 257, 698 P.2d 315, 319 (1985). Careful analysis of plaintiff’s complaint reveals that it is deficient as to two of the four fundamental elements, namely, duty and proximate cause. Thus, plaintiff has not stated a cause of action for negligence against employee Housley and, therefore, states no cause of action against defendant State Board of Corrections.
1. Duty
The primary element in a cause of action for negligence is the existence of a duty owed by defendant to the particular plaintiff. Prosser & Keeton, Torts, § 30 (1984). Thus, while “it may be said that the defendant was negligent ... [he may not be] liable because he was under no duty to the plaintiff not to be.” Id. The question of existence of a duty under the particular facts of the case is a question of law for the courts. Prosser & Keeton, Torts, § 37 (1984). As stated by the Supreme Court of *260California in a tort claims act against the State of California:
“The existence of ‘duty’ is a question of law. (Citations omitted.) ‘[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage.’ Tarasoff v. Regents of University of California, [17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976).]” Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 74, 614 P.2d 728, 732 (1980).
Essentially the question of the existence of a duty involves a legal determination that some relationship exists between the defendant and the plaintiff which gives rise to an obligation of conduct toward a particular person in the first instance. “[D]uty is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.” Prosser & Keeton, supra at § 53.
Furthermore, a determination of the existence of a duty in a particular case involves consideration of several factors, including the following:
“[T]he extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved---When public agencies are involved additional elements include the extent of the agency’s powers, the role imposed upon it by law and the limitations imposed upon it by budget.” Davidson v. City of Westminster, 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894, 897 (1982), quoting with approval Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968), and Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728 (1980).
In the present case, even when construing the facts and allegations contained in plaintiff’s complaint and all reasonable inferences therefrom in a light most favorable to plaintiff, it is clear that she has failed to establish the existence of any legal duty owed her by defendant State of Idaho Board of Corrections (through its agent Housley). Indeed, on its face, plaintiff’s complaint fails entirely to specifically allege the existence of any duty. Plaintiff’s complaint does contain allegations of negligence, but as stated earlier, liability will not flow from allegations of negligence absent allegations that show that defendant was under a duty not to be negligent toward plaintiff.
Drawing reasonable inferences from the allegations in plaintiff’s complaint, it is possible to glean therefrom the existence of three possible sources of duty imposed on defendant board (and therefore its agent Housley): (1) the court order of probation; (2) the probation agreement between the board and defendant Bloom; and (3) the statutory duty to supervise, investigate, and report violations of the probation. However, it is beyond question that under the statutes and prior decisions of this Court any duty arising from any of these three sources may not form the basis of an action in tort.
The second category, the probation agreement violation, is quickly answered by a long line of Idaho cases, culminating with our most recent decision in Carroll v. United Steelworkers of America, 107 Idaho 717, 629 P.2d 361 (1984), wherein we stated:
“Under Idaho law it is settled that an alleged failure to perform a contractual obligation is not actionable in tort____ In Taylor v. Herbold, 94 Idaho 133, 483 P.2d 664 (1971), we stated, ‘To found an action in tort, there must be a breach of duty apart from the non-performance of a contract.’ ... Mere nonfeasance, even if it amounts to willful neglect to perform the contract, is insufficient to establish a duty in tort.” Carroll v. United Steelworkers of America, 107 Idaho 717, 719, 692 P.2d 361, 363 (1984).
Assuming, without deciding, that a probation agreement is an enforceable contract, under the Carroll case and Taylor v. Herbold, supra, failure of the Board of Corree*261tions to perform the contract would not support an action in tort.
As to the other two categories, the court’s order of probation and the board’s statutory duty contained in I.C. § 20-219,9 contrary to the majority’s assertion, any duty arising from these two sources is owed to the public at large and not in favor of an individual member thereof.10 The established law in Idaho is that such duties imposed on public officials and running in favor of the general public do not inure to the benefit of individual or particular members of the general public. Worden v. Witt, 4 Idaho 404, 39 P. 1114 (1895) (“[I]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual, injury, and must be redressed, if at all, in some form of public prosecution.” 4 Idaho at 406-07); Jacobson v. McMillan, 64 Idaho 351, 132 P.2d 773 (1943).
In Jacobson v. McMillan, 64 Idaho 351, 132 P.2d 773 (1943), this Court was faced with facts substantially the same as those in the present case. In the Jacobson case, one Dan O’Connor had been arrested and charged with assault with a deadly weapon as the result of an attempt to shoot his wife. After being bound over on the assault charge, O’Connor was committed to the custody of the Kootenai County sheriff. The court’s order of commitment specifically required that the individual involved be retained in custody in the Kootenai County jail pending trial on charges of assault with a deadly weapon. The court’s order was never rescinded. The parallel between the facts in the Jacobson case and the facts in this case to this point are obvious. In the present case the defendant was convicted of felony DUI, and his legal custody was committed to the probation officer Housley, although released nevertheless on probation, under the strict terms as outlined in the majority opinion. Officer Housley is accused of failing to enforce the court’s order of probation, thus violating it. Similar to the present case, the sheriff in the Jacobson case, was accused of acting in direct contravention of the order and the statutory duty imposed by then I.C. § 20-604,*26211 by removing the committed individual from the county jail prior to trial and releasing him to the custody of the hospital superintendent at the state hospital in Blackfoot. Through the alleged negligence of the hospital superintendent in failing to supervise the committed individual, he was permitted to wander freely around the hospital grounds without guard and as a result escaped from the state hospital. Subsequent to his escape, neither the hospital superintendent nor the county sheriff attempted to apprehend the escaped individual. Several months later O’Connor again attempted to kill his wife and in the process assaulted two men who were trying to protect her, killing one and wounding the other. Suit was brought against both the sheriff and the hospital superintendent by Jacobson, the individual wounded in the assault. In his complaint, Jacobson alleged, similar to the plaintiff in this case, that his injuries were the proximate result of the negligence of the sheriff and the superintendent whose acts were in direct violation of the court order committing the individual to the county jail.12 Defendants Sheriff McMillan and the superintendent of the hospital moved to dismiss the complaint on grounds that the alleged facts of the complaint did not state a cause of action. The trial court granted the motion and dismissed the complaint. Plaintiff appealed. This Court affirmed the trial court on two alternative bases: (1) lack of duty owed to plaintiff by defendants, and (2) lack of proximate cause.13
Writing for the Court, Justice Ailshie, in affirming the dismissal, applied traditional tort law analysis and held that there existed no duty between defendants and plaintiff.
“The duties of a peace officer, who has custody of a prisoner, are two-fold, (1) to the public and (2) to the prisoner____ [H]e owes no more duty to one member of the public than to another.
“Any violation on the part of the sheriff, of his duty to keep a prisoner charged with a crime, is answerable to the public; and he is subject to ... removal from office, for wilful, negligent violátion of such duty. That right, however, does not inure to individuals. It rests with the public and must be exercised by the prosecutor or a proper party on behalf of the state.” 64 Idaho at 358, 132 P.2d at 777 (citations omitted).
In reaching this holding, Justice Ailshie relied specifically on the language from Worden v. Witt, supra. Jacobson v. McMillan, 64 Idaho at 358-89, 132 P.2d *263773. The rationale of Jacobson that no liability accrues in favor of an individual member of the public, based on an alleged breach of a general duty to the public, is in accord with the majority of jurisdictions which have addressed the issue. See, e.g., Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 80, 614 P.2d 728, 738 (Cal.1980) (absent a special relationship between the probation authorities and victim, no duty is owed by the probation authorities to a victim who is otherwise a single “member of a large amorphous public group of potential targets”); Everton v. Willard, 468 So.2d 936 (Fla. 1985) (“The victim of a criminal offense, which might have been prevented through reasonable law enforcement action, does not establish a common law duty of care the individual citizen and resulting tort liability, absent a special duty to the victim.”); Dauffenbach v. City of Wichita, 233 Kan. 1028, 667 P.2d 380 (1983) (failure to perform duty owned to general public does not give rise to tort liability); Sorichetti v. City of New York, 65 N.Y.2d 461, 492 N.Y.S.2d 591, 595, 482 N.E.2d 70, 74 (1985) (absent special relationship, “a municipality does not owe a duty to its citizens in the performance of governmental functions”); Chambers-Castanes v. King County, 100 Wash.2d 275, 669 P.2d 451, 457 (1983) (duty of law enforcement agencies to protect public is a duty “owed to the public at large and [is] unenforceable as to individual members of the public”). See generally, Annot., 38 A.L.R.4th 1194 (1985).
The Thompson case, supra, presents facts substantially similar to the present case. In Thompson, plaintiffs sought to hold defendant Alameda County liable for the death of their son following the release of a dangerous juvenile offender, James. In their complaint plaintiffs alleged that the juvenile offender “had been in the custody and under the control of county and had been confined in a county institution under court order. County knew that James had ‘latent, extremely dangerous and violent propensities regarding young children and that sexual assaults upon young children and violence connected therewith were a likely result of releasing him into the community.’ County also knew that James had ‘indicated that he would, if released, take the life of a young child residing in the neighborhood.’ ... County released James on temporary leave into his mother’s custody at her home____” Thompson v. County of Alameda, 167 Cal.Rptr. at 72, 614 P.2d at 730 (emphasis added). As in the present case, the plaintiffs in Thompson had alleged the existence of a special relationship between the county and the juvenile offender. The juvenile offender was committed to a county institution pursuant to court order just as defendant Bloom in the present case was committed to probation under a court order. The juvenile offender in Thompson was on parole at the time of the incident. There existed a relationship between the county and the juvenile offender of parolor and parolee. Nevertheless, the California Supreme Court held that, absent a special relationship between the county and the plaintiff-victim, i.e., a showing by the plaintiff that the state by its conduct placed the specific plaintiff in a position of clearly foreseeable danger, no liability could be imposed on the county. Contrasting the facts in Thompson with its earlier holding in Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), where the risk of danger focused precisely on a specific plaintiff, the court held in Thompson that Alameda County “bore no special and continuous relationship with the specific plaintiffs nor did the county knowingly place the specific plaintiffs’ decedent into a foreseeably dangerous position.” The court in Thompson likewise distinguished its prior decision in Tarasoff v. Regents Univ. of California, 551 P.2d 334 (1976), where again the victim “was the known and specifically foreseeable and identifiable victim of the [mental] patient’s threats.” 167 Cal.Rptr. at 76, 614 P.2d at 734. Applying the rationale and holding of Thompson to the present case, the majority should likewise hold that defendant Board of Corrections may not be held liable for injuries sustained by plain*264tiff since no duty is owed to a single member of an otherwise “large amorphous public group of potential targets.” 167 Cal.Rptr. at 80, 614 P.2d at 738.
The plaintiff’s allegation of inadequate or “negligent supervision” is nothing but a thinly veiled claim of failure of a law enforcement agency to protect her from harm. Such claims have uniformly been rejected by the courts. Sorichetti, supra; Chambers-Castanes, supra; Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982) (lack of showing of imminent harm to identifiable victim failed to turn officer’s legal duty to public generally into special duty to individual; therefore, town was not liable to plaintiffs whose decedent was killed by intoxicated driver who, approximately one hour prior to accident, was stopped and warned but not arrested by officer); see generally Annot. 46 A.L.R.3d 1084, §§ 3, 4, 6 (1972 & Supp.1985). The only exception to the general rule of non-liability for failure to protect is where a “special relationship” has been established between the governmental entity and the victim. No such special relationship has been alleged or shown in the present case. Indeed, defendant Board of Corrections was completely unaware of the particular plaintiff in this case prior to the accident in question.
The majority opinion makes no mention of the Jacobson case and its general rules of non-liability for failure to perform general duties owed to the public at large, and instead creates a duty in the present case by adopting the Restatement (Second) Torts, § 319. However, the so-called Restatement is not restating the law of Idaho and is, indeed, a complete reversal of the prior decisional law in this state. Not a single case is cited by the majority in support of its assertion that Section 319 is the law in Idaho. As it did in overturning Dunbar and Chandler, the majority again creates law (indeed, a new tort of negligent supervision) where none existed before and legislates Section 319 of the Restatement (Second) into the law of the State of Idaho.14
2. Proximate cause
In most instances the question of proximate cause is an issue of fact for the trier of fact. Annau v. Schutte, 96 Idaho 704, 535 P.2d 1095 (1975). However, as with any issue of fact, if reasonable minds could not differ as to the existence or non-existence of an issue, then the issue becomes one of law and is for the court to decide. Palsgraf v. Long Island RR. Co., 248 N.Y. 339, 162 N.E. 99 (N.Y.1928); Annau v. Schutte, supra. In the context of this case in its present posture (motion on the pleadings), if under any conceivable set of facts plaintiff fails to establish proximate cause, then the complaint and suit may properly be dismissed.
Proximate cause is defined as a cause which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the result (injuries) and without which the result would not have occurred. Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960); Chatterton v. Pocatello Post, 70 Idaho 480, 223 P.2d 389 (1950); accord Challis Irrig. Co. v. State, 107 Idaho 338, 689 P.2d 230 (Ct.App.1984). Even if a cause is alleged to be a concurring cause of the injury, it still must be a proximate cause in its own right. Challis Irrig. Co. v. State, supra; Miller v. Northern Pacific Ry. Co., 24 Idaho 567, 135 P. 845 (1913); 57 Am.Jur.2d Negligence, §§ 176-182 (1971).
, Careful examination of the allegations of plaintiff’s complaint reveals that nothing short of failing to physically restrain Bloom, i.e., physically preventing him from *265drinking and subsequently driving a vehicle, can be said to constitute conduct on the part of the Board of Corrections (and its agent/employee) which proximately caused plaintiffs injuries. That is, only such conduct on the part of the board is that “without which the result would not have occurred.” The allegations of plaintiffs complaint which constitute the sine qua non of plaintiffs cause of action are as follows:
“(a) Allowing ... Bloom to drive a motor vehicle for non-employment purposes ... contrary to ... the Order of Probation
“(b) Allowing ... Bloom to operate a motor vehicle without written permission from the court or probation department ... contrary to the Agreement of Probation ...;
“(i) Failing to initiate proceedings to revoke ... Bloom’s probation despite the fact that ... Bloom had failed and/or refused to comply with the order of probation ... and the agreement of probation ... on numerous occasions prior to [the date of the accident in question]; “(j) Failing to act reasonably and prudently under the circumstances despite its knowledge that ... Bloom had been convicted twice of [driving while intoxicated] prior to [the date of the accident in question] and that ... Bloom was likely to cause great bodily harm to members of the public at large if not adequately supervised.”
Allegation (j), lack of “adequate supervision,” is the essence of plaintiff’s complaint.15 However, as is apparent, lack of “adequate supervision” is far too broad a characterization to support a finding of proximate cause. Instead, the only aspect of “supervision” which does lend itself to a finding of proximate cause is physically preventing Bloom from operating a motor vehicle in contravention of his order of probation or probation agreement.16 In my estimation, the only two ways authorized for accomplishing such a task are either: (1) arresting Bloom for violation of his probation agreement pursuant to I.C. § 20-227 (and in this ease such action only acquires meaning from a claim that probation officer Housley had actual knowledge that pri- or violations had occurred); or (2) initiate proceedings to revoke his probation (this is the essence of allegation (i)).
I.C. § 20-227 does give a probation officer the authority to arrest a parolee for violation of the terms and conditions of his parole or probation, but the statute gives the officer discretion in determining whether or not to make such an arrest. Thus, the statute states, “Any parole or probation officer may arrest a parolee or probationer without a warrant, or may deputize any other officer with power of arrest to do so, by giving him a written statement setting forth that the parolee or probationer has, in the judgment of said parole or probation officer, violated the conditions of his parole or probation.” Whether or not to arrest a person who is alleged to have violated the law has always been a discretionary decision at common law. Everton v. Willard, 468 So.2d 936 (Fla.1985) (no distinction between discretionary decision of police officer whether to arrest individual for an offense and the discretionary decision of a prosecutor of whether to prose*266cute an individual; both are judgmental decisions which are inherent in enforcing the laws of the state); Watson v. Quarles, 381 N.W.2d 811 (Mich.App.1985) (the determination of what type of action to take in face of unlawful conduct, e.g., make an immediate arrest, is a discretionary decisional act entitled to immunity); Hildenbrand v. Cox, 369 N.W.2d 411 (Iowa 1985) (decision by police whether to take an intoxicated person into custody is permissive rather than mandatory). Under I.C. § 20-227 it is expressly made discretionary. The effect of the majority opinion today is that every probationer who violates any term of his probation must be arrested, or the state will be subject to a claim of liability in tort for any subsequent violations which that probationer may commit.
The same is true with the second allegation that the State Board of Corrections should have initiated proceedings to revoke Bloom’s probation. Of course, only the court can revoke his probation, and even under the majority opinion such a revocation decision by the court falls under the discretionary function exception of I.C. § 6-904(1). However, the decision of whether or not to initiate proceedings to revoke a probation, just as a decision on whether or not to prosecute in the first instance, involves just as much judgment and discretion as does the court’s decision in deciding whether or not finally to revoke probation. As a result of today’s decision, the courts and the probation officers will never be able to cope with the monumental task of arresting and initiating proceedings to revoke probation for every probationer who fails to comply with some term or condition of his probation. The tort law system was never intended to supervise the management of the probation and parole system. However, that is what will result from the majority’s opinion.
Today’s decision will “jeopardize rehabilitative efforts” both by eliminating any discretion which probation officers have in dealing with released offenders and their partial failure to live up to the conditions of their probations, and by the fact that “parole or probation authorities [will] be far less likely to authorize release [on probation] given the substantial drain on their resources which [today’s decision] might require. A stated public policy favoring innovative release programs [will] be thwarted.” Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 79, 614 P.2d 728, 737 (1980).
The prisons in the State of Idaho are unable to cope with the huge numbers of prisoners matriculating through the criminal justice system, and many who otherwise would be incarcerated have been forced into the already over-taxed probation and parole system. Probation and parole officers are forced to work with caseloads which are extremely difficult to manage. These caseloads are the result of policy decisions made by the Idaho legislature — planning decisions, if you will — concerning the allocation of limited state resources to the criminal justice system, and particularly the funds available for incarceration and the funds available for probation and parole. Today’s decision substitutes the tort law system for the planning and policy decisions made by the Idaho legislature. At the present level of funding, or at any level of funding which is reasonably foreseeable in the future given the state of the economy in Idaho, the parole and probation system will be unable to meet the supervision standards which today’s opinion imposes upon it through the tort law system. The result, I predict, will be chaos. Either there will be a major reduction in the number of individuals placed on probation and parole, and “a stated public policy favoring innovative release programs [will] be thwarted,” Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 79, 614 P.2d 728, 737 (1980), or the state will be subjected to a flood of tort claims which will place impossible fiscal burdens upon future legislatures. Only by the legislature’s immediate attention to the problems which today’s decision creates *267can the chaos which will undoubtedly result from it be averted.
B.
Since the majority is sustaining the plaintiff’s cause of action, it becomes necessary to address the scope of employment issue. Even if the plaintiff has established negligence on the part of the board’s agent/employee, Housley, the plaintiff’s claim that Housley was within the scope of his employment is inconsistent with those allegations concerning his alleged acts which are claimed to form the basis of her cause of action.
Plaintiff’s allegation in her complaint, that the board’s agent/employee Housley was at all times acting within the scope of his employment, is in direct contravention with plaintiff’s allegation that this very agent/employee was also without authority to disobey or, in effect, ignore the terms of the order of probation and probation agreement. If, as alleged by plaintiff, the probation officer was without authority to engage in the very conduct alleged to be the basis of plaintiff’s right to recovery, then plaintiff’s cause of action must be dismissed against the State of Idaho for failing to establish or allege that the agent/employee’s acts were committed within the scope of employment. Absent additional allegations by plaintiff that the Board of Corrections was aware of its agent/employee’s conduct in this regard and thereby acquiesced in such, it is a general rule of law that an agent/employee’s unauthorized conduct constitutes ultra vires action for which the principal/employer may not be held liable. Texas Co. v. Peacock, 77 Idaho 408, 293 P.2d 949 (1956) (no “apparent authority” of agent exists if it is known to person asserting authority of agent that, in fact, he is without authority of principal to do the complained of act); Manion v. Waybright, 59 Idaho 643, 86 P.2d 181 (1938) (presumption that acts committed during time of employment are within the servant’s scope of employment may be rebutted upon a showing that such acts were unauthorized); Axtell v. Northern Pacific Ry. Co., 9 Idaho 392, 74 P. 1075 (1903) (acts by servants which are expressly forbidden may not serve as basis for imposition of liability on master); accord Orbit Stations, Inc. v. Curtis, 100 Nev. 205, 678 P.2d 1153 (Nev.1984) (acts of unauthorized agent not imputable to principal absent consent or acquiescence by principal); Kidd v. Maldonado, 688 P.2d 461 (Utah 1984) (absent ratification by principal, unauthorized act of agent does not impose liability on principal); National Cash Register Co. v. Lightner, 154 Colo. 98, 388 P.2d 781 (1964) (principal not liable for unauthorized acts of agent absent consent of principal or other allegations of “apparent authority” of agent).
Ill
As Parts I and II make clear, the holding of the majority in the present case represents a major shift in the decisional law of this state regarding both the Idaho Tort Claims Act and traditional tort law. Today’s opinion imposes new and unprecedented law retroactively. At the time the cause of action accrued against the Board of Corrections, and even at the time of oral argument, the only law in the State of Idaho was that no duty existed on the part of the Board of Corrections which inured to the direct benefit of any individual member of society. Worden v. Witt, supra; Jacobson v. McMillan, supra. Furthermore, under our Dunbar and Chandler decisions, the State of Idaho and the Board of Corrections were immune from suit at the time of the acts complained of. In short, there was no law in the State of Idaho which would have rendered the Board of Corrections liable for the alleged negligent acts in the present case. Thus, by any reasonable standard the Court’s current opinion in the present case represents a major shift in established tort and governmental immunity law in this state. Even under the majority’s strained reading of Doe v. Durtschi, supra, the tort of negligent supervision did not exist until, at best, the decision in *268Durtschi was handed down. The tort of negligent supervision as embodied in Restatement (Second) Torts, § 319, had never been adopted by any decision of this Court prior to this Court’s decision in the present case. Indeed, the Court’s decision in Durtschi never once mentions or utilizes the phrase “negligent supervision,”17 nor does the Court’s opinion in Durtschi cite to the Restatement (Second) Torts, § 319. It is only statement (Second) Torts, § 319. It is only in the proposed majority opinion in the present case that this Court for the first time asserts that the tort of negligent supervision, as set forth in the Restatement (Second) Torts, § 319, exists in the State of Idaho.
In Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), this Court specifically provided that since its decision regarding governmental immunity represented a major shift in the decisional law of the state up to that point, the effect of the decision would be given prospective application only, to a time “60 days subsequent to the adjournment of the First Regular Session of the Forty-First Idaho State Legislature.” 93 Idaho at 808, 473 P.2d 937. The same rationale exists in this case as existed in Smith for holding that the decision in that case would be given prospective application only. The present case makes two major shifts in the prior decisional law of this state. It overrules the two major decisions of this Court dealing with governmental immunity, Dunbar and Chandler, thereby admittedly establishing a major shift in the law as enunciated by this Court regarding actions under the Idaho Tort Claims Act. Today’s opinion also makes a major reversal in Idaho tort law by, in effect, overruling Jacobson v. McMillan, 64 Idaho 351, 132 P.2d 773 (1943), and Worden v. Witt, 4 Idaho 404, 39 P. 1114 (1895).
Paraphrasing the language used by the Court in Smith v. State, supra, “Postponing the operative effect of the [current] decision ... [is based] on the fact that since the [Board of Corrections] and other governmental agencies have relied upon the doctrine of sovereign immunity [as set forth in the Idaho Tort Claims Act and as interpreted by the prior decisions of this Court in Dunbar and Chandler ] it is quite possible that they will suffer undue hardship if the abolition of the [parallel function test and the discretionary function exception as established in Dunbar and Chandler is] to take effect immediately.” Smith v. State, 93 Idaho at 808, 473 P.2d at 950. Furthermore, as stated by this Court in Smith, “limiting a decision which overrules an established precedent so that it has prospective application only, does not violate constitutional principles.” Id. (emphasis added, citations omitted).
A decision to render the present case prospective in application is soundly grounded in public policy. There can be no question that probation and parole constitute fundamental and necessary parts of our criminal justice system. However, just as the system as a whole is not perfect and may fail from time to time, so also the probation and parole components, administered as they are through overworked, underpaid, imperfect human beings, are likewise subject to failure. An inevitable consequence of such failure in the system is that innocent members of society will suffer harm, be it through failure to prosecute, convict and confine a rapist or murderer, or failure to revoke a convicted felon’s probation. As recognized by the California Supreme Court in the cases of Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728 (1980), and Johnson v. State of California, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), “Each member of the general public who chances to come in contact with a parolee [or probationer] bears the risk that the rehabilitative effort will fail----” *269Thompson v. County of Alameda, 167 Cal.Rptr. at 77, 614 P.2d at 735; Johnson v. State of California, 69 Cal.Rptr. at 252, 447 P.2d at 364. The United States Supreme Court has likewise recognized that “the basic risk that repeat offenses [or violations of probation or parole] may occur is always present in any parole system.” Martinez v. State of California, 444 U.S. 277, 281, 100 S.Ct. 553, 557, 62 L.Ed.2d 481 (1980). Nevertheless, and despite this obvious risk of failure in the parole and probation programs, our legislature has seen fit to continue these programs even though such risks of harm must be borne by the public. The law cannot and does not attempt to create a risk-free society. Neither does the law seek to ameliorate all harm occasioned by such risks. Indeed, in recognition of the goals sought to be achieved by our criminal justice system, both the courts and the legislature have sought to shield government officials involved in administering the system from liability for their administrative acts. (Court-created doctrines of official immunity involving both prosecutors and members of the judiciary are one example.) Nevertheless, the current majority opinion ignores the important position of the probation and parole component of our criminal justice system. Indeed, the majority’s current opinion on its face magnanimously only recognizes the importance of the prosecutorial and judicial component of our criminal justice system by holding that the those functions are shielded by immunity; while the probation and parole functions are not. What the majority fails to explain is why the prosecutorial or judicial function is a more essential component to the criminal justice system, and thus apparently more worthy of immunity, than the probation component of the system. The distinction cannot be based on arguments that one component involves discretion, while the other does not. Clearly, the administration of both components entails both discretionary and non-discretionary ministerial functions. The majority fails in any effort to explain why one component of the system enjoys immunity, while the other does not. In short, it must be conceded that the same “important policy” reasons supporting immunity for the prosecutorial and judicial functions also supports immunity for the probation and parole functions. The probation function, no less than the prosecutorial and judicial functions, requires “the insulation necessary for [the respective officials] to independently carry out their tasks without the fear of consequences.” Ante at 775. Without such immunity, the proper functioning of the criminal justice system as a whole will be impeded if not completely hamstrung.18
Under the authority of our decision in Smith v. State, supra, we should defer the effective date of today’s opinion until “60 days subsequent to the adjournment of the [next] Session of the ... Idaho State Legislature,” so that body can express its legislative will on the question of whether today’s decision accurately reflects the policy set out in the Idaho Tort Claims Act, and to make the necessary changes to ensure the continued viability of the probation function.
. The majority and special concurring opinions argue that the parallel function or liability test enunciated in Feres constitutes an “implied exception" to the Federal and Idaho Tort Claims Acts and, as such, must be disavowed. Quoting from the United States Supreme Court decision in Rayonier, Inc. v. United States, 352 U.S. 315, 320, 77 S.Ct. 374, 377, 1 L.Ed.2d 354 (1957), the majority states: “There is no justification for this Court to read exemptions into the act beyond those provided by Congress [or, in the case of the Idaho act, the legislature].” Ante at 223, 723 P.2d at 767 (as modified by the majority opinion). However, the majority's argument contradicts the assertion in the special concurrence in that the parallel liability test of Feres is limited solely to the military. Such an assertion amounts to nothing less than the creation of an "implied exception" for the military where none exists in the express language of the statute. As discussed in the text, supra, there is an express exception in the FTCA for claims against the military, but that exception was inapplicable under the facts of Feres. Thus to contend, as do both the majority and special concurrence, that Feres retains vitality only in the military arena is tantamount to "this Court ... read[ing] exemptions into the act beyond those provided by Congress [or, in the case of the Idaho act, the legislature]." In short, the majority’s and special concurrence's arguments that "implied exceptions” to tort claims acts must be disavowed do not square with their argument that a special exemption exists in the military arena under the Feres doctrine. The attempt by both the majority and concurring opinions to dismiss the rationale of the Feres holding, i.e., the parallel function or liability test, by suggesting there is an implied exception for the military, is contradictory and unavailing.
. The Supreme Court's decision in Indian Towing is interesting because in that case the district court had dismissed the complaint, and the Court of Appeals had affirmed, based upon the Feres and Dalekite cases. The Supreme Court of the United States first affirmed by an equally divided court, 349 U.S. 902, 75 S.Ct. 575. However, after granting a petition for rehearing, and apparently getting a ninth justice on the Court, the Court reversed in a terse 5-4 decision written by Justice Frankfurter, which contains little or no analysis of the Tort Claims Act.
. Both the majority and special concurring opinions assert that Varig reaffirmed the supposed holding of Rayonier rejecting the parallel liability test. The majority and concurring opinions refer to the language in footnote 10 of the Varig opinion. That footnote does contain the following language: "The holding of Rayonier obviously overrules one element of the judgment in Dalehite____" 104 S.Ct. at 2765. However, as the footnote read in whole indicates, the "one element" referred to was Rayonier’s holding that the FTCA did not restrict liability of the government “to that of a municipal corporation or other public body.” Id. Municipal corporation tort law is not the equivalent of the parallel liability test. That the Court in Varig recognized such a distinction between the two concepts is readily apparent from the Court's language in footnote 12 in Varig. In footnote 12, the Court noted that, apart from the discretionary function exception, the government in Varig also asserted its immunity to liability based on the argument that “the conduct of the FAA in certifying aircraft is a core governmental activity that is not actionable under the act, because no private individual engages in analogous activity.” 104 S.Ct. at 2766. The Court in footnote 12 stated that since its decision was founded upon the discretionary function exception it found it “unnecessary to address these additional issues." Id. If, as asserted by the majority and concurring opinions, the holding of Rayonier overruled the parallel liability test enunciated in Feres, then surely the unanimous Court in Varig would have closed the door on the government’s argument concerning parallel liability. Indeed, if the "one element” referred to in footnote 10 was the parallel liability test, then the portion of footnote 12 addressing the parallel liability argument of the government would have been unnecessary. Instead, the Court’s deliberate action in not addressing this issue indicates that the parallel function analysis is indeed a viable and legitimate interpretation of the “private person in like circumstances” liability language found in both the federal and Idaho acts.
. "4.92.090. Tortious conduct of state — liability for damages. The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.”
. See footnote 1, ante at 252, 723 P.2d at 796.
. I.C. § 6-903(a) sets forth a qualified general rule of liability. However, as with any general rule, failure of a plaintiff to bring her claim within the purview of the rule or statute precludes a court from even addressing application of the statute (including any enumerated exceptions) to the merits of such a would be plaintiffs claim. Thus, it can hardly be argued that an express qualification to the statutory rule of liability imposed by I.C. § 6-903(a) somehow conflicts with the enumerated exceptions contained in § 6-904 thus swallowing the general rule and rendering it a nullity. The majority’s assertion in this regard is analytically unsound.
.As recognized by the special concurring opinion, plaintiffs allegations are that the board failed “to properly enforce the order and agreement of probation.” Ante at 239, 723 P.2d at 783 (emphasis added). However, the proper focus must be on the means or authority given the Board of Corrections to “enforce" such an order of probation. In the end it must be recognized that the board, no less than any law enforcement agency, exercises its authority to enforce any law, including court orders, via its arrest power. The special concurrence's suggestion that probation officer Housley should "have ordered Bloom not to drive for recreational purposes, and not to drive a vehicle without written permission and without insurance, and to report regularly," merely duplicated the orders already *256given defendant Bloom by the court. It is difficult to see how that would add to the court’s order of probation. The only other means suggested is that Housley “could have overseen Bloom’s conduct to prevent these violations." But for that to occur would require constant supervision, and probation would need to be a one-on-one relationship, a policy which the legislature has rejected for obvious fiscal reasons.
. Contrary to the argument in the special concurrence, Varig did not involve allegations of negligence against the government in its role as a "passer of regulations.” Ante, at 239,723 P.2d at 783. The allegations of negligence in Varig centered on implementation of regulations, and not on decisions of whether to enact the regulations involved. Furthermore, an important analogy exists between the Varig case and the present case before this Court. In Varig the United States Supreme Court found that the FAA certification process (the process by which manufacturers of aircraft were required to comply with the government safety regulations) was founded upon a relatively simple notion: the duty to insure conformance or to comply with the safety regulations lies primarily with the manufacturer of the aircraft, while the FAA merely acts in the role of a policing agency. 104 S.Ct. at 2766-67. The Supreme Court’s characterization of the duty imposed in Varig is not unlike the facts of the present case. In the present case, the duty to conform with the court’s order of probation lies primarily with the probationer in the first instance, while the Board of Corrections acts in a policing role to enforce compliance with the order via its enforcement powers, i.e., primarily the arrest power. Also, both Varig and the present case involve enforcement of mandatory law. In Varig that law was in the form of mandatory regulations. In the present case it is in the form of a court order. In both Varig and the present case the power of enforcement (policing power) was premised on permissive or discretionary statutes and regulations. In Varig the Court held that policing power by the FAA to be exempt. Under the same discretionary function exception, the probation policing function should be exempt.
. "20-219. Probation and parole supervision. — The state board of corrections shall be charged with the duty of supervising all persons placed on probation or released from the state penitentiary on parole, and all persons released on parole or probation from other states and residing in the state of Idaho; of making such investigations as may be necessary; of reporting alleged violations of parole or probation in specific cases to the commission or the courts to aid in determining whether the parole or probation should be continued or revoked and of preparing a case history record of the prisoners to assist the commission or the courts in determining if they should be paroled or should be released on probation.
. The majority's attempt to circumscribe the duty of supervision and investigation to plaintiff in the present case is unavailing. Indeed, the majority’s basis for so doing, that plaintiff was within the class foreseeably endangered by violation of the duty, is itself the undoing of the majority’s rationale. Motorists are not the only class of members of the public foreseeably endangered by a drunk driver, as is "obvious to the utmost." If "motorist” is not a class itself as broad as the general public (for not only operators of vehicles are included therein, but also their passengers), then the addition of pedestrians (another class obviously foreseeably endangered by drunk drivers) certainly brings within the class enough members to constitute the general public. In short, the "foreseeably endangered" standard, as applied to the statutory duty imposed by I.C. § 20-219, is nothing but proof that the duty is merely a general duty to the public at large.
In fact, the very rationale utilized by the majority in the present opinion has been recently expressly rejected by the California courts. In Lehto v. City of Oxnard, 171 Cal.App.3d 450, 217 Cal.Rptr. 450 (1985), plaintiffs had alleged, similar to the allegations in the present case, that the law enforcement officer’s failure to arrest an individual whom he knew to be intoxicated was in violation of a duty owed to members of the general public who were reasonably foreseeable victims of the intoxicated driver, namely, members of the motoring public. The court in Lehto expressly rejected this characterization of duty owed by the police. "The fact that plaintiff as a member of the motoring public might have been a reasonably foreseeable victim, by itself is not enough to establish a special relationship with the officers or impose on them a duty to use due care." 217 Cal.Rptr. at 454.
. “20-604. Prisoners must be actually confined. — A prisoner committed to the county jail for trial or for examination, or upon conviction for a public offense, must be actually confined in the jail until he is legally discharged; and if he is permitted to go at large out of the jail, except by virtue of a legal order or process, it is an escape.” (Emphasis added.)
. The special concurring opinion suggests that the lack of duty analysis in Jacobson was dicta, asserting that the Court in Jacobson decided the case on the lack of proximate cause rather than failure of the complaint to assert any duty against the defendants. However, in the Jacobson case the trial court sustained a demurrer which admitted all of the allegations of the plaintiffs complaint for purposes of the demurrer, including the allegation in Jacobson’s complaint that his injuries were "a proximate result of the negligence and violation of the order of commitment [by the defendant]..." Jacobson v. McMillan, 64 Idaho at 356, 132 P.2d at 775. The insistence that Jacobson was decided on the basis of proximate cause, and that the duty analysis in that case is dicta, is directly contrary to the assertion both in the majority opinion and in the special concurring opinion that an allegation that the alleged conduct is the proximate cause of the injuries must be admitted for purposes of a motion to dismiss or a demurrer. Proximate cause is usually a factual issue, Annau v. Schutte, 96 Idaho 704, 535 P.2d 1095 (1975), while “the existence of a ‘duty’ is a question of law.” Thompson v. County of Alameda, supra. Accordingly, if the demurrer filed in the Jacobson case admitted the allegations in the complaint alleging proximate cause, then the real basis for the sustaining of the demurrer in Jacobson was the legal question of the existence of a duty, which became the ratio decidendi in the case.
.As to this second basis, the Court held that plaintiff, hired primarily to protect O'Connor’s wife from him, had assumed the risk of being assaulted by O'Connor. Thus, although the Court discussed proximate cause, it was really applying the doctrine of assumption of risk.
. In fact, the only prior case of this court addressing specific allegations of “negligent supervision" was Pedigo v. Rowley, 101 Idaho 201, 610 P.2d 560 (1980). In Pedigo the defendant, by a third party claim, sought to hold a parent liable (on a claim of contributory negligence) for injuries to his child arising from the parent’s alleged "negligent supervision” of the child. A majority of this court held that liability for such "negligent supervision” did not exist under the laws of this state and dismissed the third party claim which had urged such a “negligent supervision” claim.
. In this connection it is interesting to note that a reasonable inference raised by allegation (j) is that Bloom never should have been on probation in the first place, which clearly implicates a judicial function.
. Indeed, the assertion in the special concurrence that the probation officer "could have overseen Bloom’s conduct to prevent these violations, " ante at 238, 723 P.2d at 782 (emphasis added), reveals a recognition of the fact that the only meaningful aspect of supervisory conduct in the present case is that which would have prevented the violations of the probation order and agreement by defendant Bloom. Again, nothing short of physically restraining Bloom from operating a motor vehicle in violation of his order of probation and probation agreement would have prevented the injuries to plaintiff Sterling. Such physical restraint would be an arrest.
. The allegations in Durtschi were of negligence on the school district’s transferring Durtschi from a prior school to the one where the lewd conduct took place. There simply were no allegations of "negligent supervision.”
.- It is clearly implicit, in the majority’s reasoning for granting immunity to the judicial function, that it recognizes that tort action is an inappropriate vehicle to assure proper functioning of the judicial component of the criminal justice system. If, as argued by the majority, the act is to be given a liberal construction, there is no basis in the express language of the act for elevating the judicial function above the probation and parole function.