(dissenting).
The sole issue presented by this appeal is whether the alleged negligent conduct of the State’s agents was a simple failure to perform discretionary functions. In effect the majority holds the State would not be liable if it deliberately elected not to warn of a highway danger — that would be the “planning” stage of a discretionary function. The implication is, if it attempted to warn in a slipshod manner, liability would attach — that being the “operational” phase of a discretionary function. I suggest neither the record nor law supports majority’s decision.
I. A proper determination of this appeal requires it first to be viewed from a wide perspective. It is important to note the State relies on a limited exception to the broad sweep of the Tort Claims Act, which rejected the archaic concept of governmental immunity. See Graham v. Worthington, 259 Iowa 845, 146 N.W.2d 626 (1966).
We have recognized our act is patterned on the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674, 2680. Saxton v. State, 206 N.W.2d 85 (Iowa 1973); Hubbard v. State, 163 N.W.2d 904 (Iowa 1969). We are guided by interpretations federal courts have given identical federal legislative language. Saxton v. State, supra; Stanley v. State, 197 N.W.2d 599 (Iowa 1972).
The federal decisions have retreated from the loose interpretation of “discretionary function” which supported the decision in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). In the Supreme Court decisions, this was first apparent in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), as we pointed out in Stanley, supra. There have followed a number of lower federal court decisions which confirm the interpretive emphasis is on the general imposition of liability, not the exception.
Typical of the current legal thought is Judge Holtzoff’s language in McNamara v. *702United States, 199 F.Supp. 879, 880-881 (D.C.1961):
“The Federal Tort Claims Act is a comprehensive statute, the purpose of which was to waive governmental immunity to suit in tort which this country originally inherited from the immunity accorded to the King of England, and it might be said in passing that the British Sovereign has also waived immunity to suit in tort some years ago. The Act was a far-reaching reform in jurisprudence. It was the work of many minds over many years, and unlike other statutes waiving governmental immunity to suit in specific matters, this statute shall receive and has received a liberal construction. * * *
“[T]here are certain torts that are expressly excepted from the Act. They are listed in 28 U.S.Code, § 2680. The Court is of the opinion that these exceptions should be narrowly construed.” (Emphasis supplied.)
Also relevant on this point are those federal decisions cited in Stanley, supra, 197 N.W.2d at 603.
Resolving the appeal sub judice in light of the federal decisions which we have said will guide us, we should instill life into the legislative direction that the State is liable for the “ * * * omission of any employee of the state while acting within the scope of his office or employment * * *.” [§ 25A.2(5), The Code], and that “[t]he state shall be liable in respect to such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances * * [§ 25A.4, The Code]. At the same time, the exception found in § 25 A. 14, The Code, retaining immunity where the employee has failed to exercise or perform a discretionary function, should be narrowly construed.
II. Here plaintiff’s affidavit in resistance to motion for summary judgment plainly shows a State decision to protect and promulgate deer herds in Iowa and Fremont County, where this tragedy occurred. The wooded creek which crossed the limited-access, high-speed throughway at the place of collision formed an umbilicus between extensive state park and wildlife areas, all constituting sanctuaries for deer. This point was, in fact, a funnel for the passage of deer deprived of access across the highway to the north and south of the creek by high-cut banks. The deer population in Fremont County, under strict State protection, rose from none after decimation in early times, to 176 in 1964 and to 451 in 1968. The number of deer killed in vehicle collisions rose from six in 1964 to 30 in 1968.
The affidavits of neither litigant support majority’s conclusion the State made a discretionary policy decision not to post “deer crossing” signs on Iowa highways. These instruments do prove this policy was in fact adopted and operational, but no signs were posted in the area here involved because two accidents had not yet occurred at this place.
A State defense that its duty to warn did not arise until there had been two resulting collisions would be summarily rejected in the case of any other danger to highway travel. But here the State apparently believes it is saved from liability because the deer are ferae naturae. I have no doubt the State’s commendable policy to promote the increase of deer population resulted from the exercise of a discretionary function. But I cannot concede it follows that the State has a discretion not to warn highway travelers of the attendant danger at deer-crossing points.
III. Inherent in the State’s rationale, adopted by the majority, is the concept that the State’s title and ownership of the deer (§ 109.2, The Code) is a governmental function (“as trustee for the people of the state”) and therefore immunity somehow, and outside the statute, reattaches. This position is probably deemed essential to the State’s defense, for if, in the language of *703the statute, it is liable to the same extent as a “private individual under the circumstances,” law which may be applicable is established. Proof that animals are running at large is prima facie evidence of the owner’s negligence. Leaders v. Dreher, 169 N.W.2d 570 (Iowa 1969); see § 188.2, The Code. We have recognized the basic rule that ordinarily the owner of a wild beast is absolutely liable for damages or injury caused by such an animal. Wenndt v. Latare, 200 N.W.2d 862, 869 (Iowa 1972); see Clark v. Brings, 284 Minn. 73, 169 N.W.2d 407 (1969); 4 Am.Jur.2d Animals § 80, pp. 326-328; Annot., 21 A.L.R.3d 603 (1968).
The posture of this appeal does not require us to resolve whether the rules which apply to an individual should also define the State’s duty or liability in these circumstances. It only demands we hold, as federal decisions have held, the time-worn “governmental function” concept cannot be readopted as a shield in these situations. The same argument was rejected in Indian Towing Co. v. United States, supra, when Justice Frankfurter, speaking for the majority, warned the adoption of that defense would “push the courts into the ‘non-governmental’ — ‘governmental’ quagmire that has long plagued the law of municipal corporations.” (350 U.S. at 65, 76 S.Ct. at 124, 100 L.Ed. 53-54).
The identical defense was raised in Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), in which a seven-member majority reversed a district court dismissal of an action for losses allegedly caused by negligence of United States employees in fighting a forest fire. Pertinent here is the following from that decision, 352 U.S. at 318-320, 77 S.Ct. at 376-377, 1 L.Ed.2d 358-359:
“It [United States] argues that the Act only imposes liability on the United States under circumstances where governmental bodies have traditionally been responsible for the misconduct of their employees and that neither the common law nor the law of Washington imposes liability on municipal or other local governments for the negligence of their agents acting in the ‘uniquely governmental’ capacity of public firemen. * * * But * * * [w]e expressly decided in Indian Towing that the United States’ liability is not restricted to the liability of a municipal corporation or other public body and that an injured party cannot be deprived of his rights under the Act by resort to an alleged distinction, imported from the law of municipal corporations, between the Government’s negligence when it acts in a ‘proprietary’ capacity and its negligence when it acts in a ‘uniquely governmental’ capacity. To the extent that there was anything to the contrary in the Dalehite Case it was necessarily overruled by Indian Towing.
“It may be that it is ‘novel and unprecedented’ to hold the United States accountable for the negligence of its firefighters, 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 governmental liability. * * * There is no justification for this Court to read exemptions into the Act beyond those provided by Congress.”
The Rayonier rationale has been followed and amplified by a series of lower federal court decisions, including Pigott v. United States, 451 F.2d 574 (5 Cir. 1971); United States v. State of Washington, 351 F.2d 913 (9 Cir. 1965); and American Exch. Bank of Madison, Wis. v. United States, 257 F.2d 938 (7 Cir. 1958).
IV. For the purposes of this appeal we need only determine that the State had the duty to warn of a situation constituting a danger to motorists on a through highway. We have recognized that duty in numerous decisions, including the Stanley case. See Anderson v. Lyon County, 206 N.W.2d 719 (Iowa 1973); Parmenter v. City of Mar*704ion, 113 Iowa 297, 85 N.W. 90 (1901); 40 C.J.S; Highways § 262, pp. 306-312. In cases arising under the almost identically-worded federal act, the federal courts have incisively imposed a duty to warn of dangers created by governmental activities clearly within the sphere of discretionary function. Typical of these decisions are Indian Towing Co. v. United States, supra (failure to warn shippers a lighthouse beam was not operating) ; United States v. State of Washington, supra (failure to warn pilots of existence and heights of power lines); Somerset Seafood Co. v. United States, 193 F.2d 631 (4 Cir. 1951) (failure to properly warn shippers of the location of a wreck); Everitt v. United States, 204 F.Supp. 20 (S.D.Tex.1962) (failure to warn shippers of submerged piling); Bulloch v. United States, 133 F.Supp. 885 (D.Utah 1955), second case, 145 F.Supp. 824 (D.Utah 1956) (failure to warn sheepherders of nuclear tests); Hernandez v. United States, 112 F.Supp. 369 (D.Haw.1953) (failing to warn of the existence of a road block).
V. This is not a situation in which the State was required to exercise a discretionary .option to protect either deer or the lives and property of people. If it were, the plain duty of the State could readily be found in the Iowa Constitution, art. I, § 2, “Government is instituted for the protection, security, and benefit of the people * * The State’s mandatory function to protect people and their property, and its discretionary function to protect deer, are not restrained, but are in fact jointly implemented, by. imposing on the State a duty to adequately warn of deer crossings on the highways. The record before us discloses a startling State indifference to the right of travelers to be protected in their lives and property.
The State’s employees appear motivated solely by an intent to protect deer, not people. Thus the State’s Wildlife Superintendent stated in his affidavit, “This policy [posting deer crossing signs] was continued for several years during which time the policy was studied and data gathered to determine if the posting of the signs would cause a decrease in the deer kill across the state.” Certainly the family of this decedent could be excused in failing to see humor in the State Conservation Commission’s letter to plaintiff’s attorneys stating, “Their [deer crossing signs] effectiveness is questionable, partially because deer pay no attention to them.” The whole thrust of the State’s evidence and attitude is summed up in the State’s brief:
“Because the State has assumed a duty to protect wild animals and thereby benefit the people of the state does not mean that the state has also assumed the duty to protect the people and insure their safety against wild animals.”
I say the State does have a duty to protect the people, and the very minimum required is that travelers be warned of places where the State-expanded deer population constitutes a threat to highway safety. The State has no discretion to avoid that obligation.
I would reverse, and remand for trial.
McCORMICK, J., joins in this dissent.