dissenting.
Because the majority has violated the Idaho Constitution by usurping the power of the legislature, I respectfully dissent.
The issue in this case is simply whether an exculpatory clause in a lease is valid. In Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499-500, 465 P.2d 107, 110-111 (1970), we held that “express agreements exempting one of the parties for negligence are to be sustained except where: (1) one party is at an obvious disadvantage in bargaining power; [or] (2) a public duty is involved (public utility companies, common carriers).” There is no contention in this case that Jesse was at an obvious disadvantage in bargaining power. Thus, the validity of the exculpatory clause hinges upon whether a public duty was involved.
In Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (1984), we addressed the issue of the existence of a public duty where the legislature had acted to regulate tort liability *78between two groups. In Lee, the plaintiff was injured while on a horseback ride conducted by a guide licensed by the Idaho Outfitters & Guides Board. Prior to going on the horseback ride, the plaintiff had signed an agreement holding the guide and his employer harmless for any injury he may incur. We held that
where the legislature has addressed the rights and duties pertaining to personal injuries arising out of the relationship between two groups, i.e., employers/employees, outfitters and guides/participants, and has granted limited liability to one group in exchange for adherence to specific duties, then such duties become a “public duty” within the exception to the general rule validating exculpatory contracts. Therefore, while the agreement between Sun Valley and plaintiff does absolve Sun Valley from common law liabilities, it does not absolve Sun Valley from liability for possible violation of the public duty imposed by I.C. § 6-1204.
107 Idaho at 979, 695 P.2d at 364.
Under Lee, the existence of a public duty was based upon the fact that “the legislature has addressed the rights and duties pertaining to personal injuries arising out of the relationship between two groups.” Id. In that circumstance, the exculpatory clause absolved the party from “common law liabilities,” but it did not absolve the party from “the public duty imposed by [statute].”
In this case, the legislature has not addressed the rights and duties pertaining to personal injuries arising out of the relationship between landlord and tenant. The legislature has enacted Idaho Code § 6-320, which is “a statutory version of the implied warranty of habitability theory,” Worden v. Ordway, 105 Idaho 719, 723, 672 P.2d 1049, 1053 (1983). “As such, the provisions of the statute are part of the lease, and the damages recoverable under the statute are those recoverable for breach of contract.’’ Silver Creek Computers, Inc. v. Petra, Inc., 136 Idaho 879, 884, 42 P.3d 672, 677 (2002) (emphasis added). Idaho Code § 6-320 imposes contractual rights and duties between landlords and tenants, it does not address their rights and duties pertaining to personal injuries.
For example, the statutes in Lee included a statement that it was the legislative purpose to “define those areas of responsibility and affirmative acts for which outfitters and guides shall be liable for loss, damage, or injury, and to define those risks which the participant expressly assumes and for which there can be no recovery.”5 The statutes set forth the duties of an outfitter,6 the duties of a guide,7 the duties of a participant,8 and the *79liability of outfitters and guides.9 There are no comparable provisions in Idaho Code § 6-320. It does not purport to address the tort liability of landlords. If Section 6-320 regulated the tort liability of landlords, then we would not have held in Stephens v. Stearns, 106 Idaho 249, 258, 678 P.2d 41, 50 (1984), that “we adopt the rule that a landlord is under a duty to exercise reasonable care in light of all the circumstances.” We would simply have held that any recovery for personal injuries must be brought under Section 6-320.
Even if Idaho Code § 6-320 did constitute “a public duty imposed by statute” under our decision in Lee, then Jesse’s remedy is the remedy provided by that statute. That was our holding in Lee. As we stated, “Therefore, while the agreement between Sun Valley and plaintiff does absolve Sun Valley from common law liabilities, it does not absolve Sun Valley from liability for possible violation of the public duty imposed by I.C. § 6-1204.” 107 Idaho at 979, 695 P.2d at 364. Jesse’s recourse in this case would simply be to recover under the provisions of Idaho Code § 6-320. Subsection (d) of the statute provides:
Before a tenant shall have standing to file an action under this section, he must give his landlord three (3) days written notice, listing each failure or breach upon which his action will be premised and written demand requiring performance or cure. If, within three (3) days after service of the notice, any listed failure or breach has not been performed or cured by the landlord, the tenant may proceed to commence an action for damages and specific performance.
A tenant who believes there is an unsafe condition on the leased premises must give the landlord three days written notice to cure. If the landlord does not do so, the tenant has two options: (a) the tenant can bring an action for specific performance to obtain a court order requiring the landlord to cure the problem, or (b) the tenant can cure the problem and bring an action seeking to recover damages for the cost of doing so. Jesse did not seek either of those remedies in this case.
In Worden v. Ordway, 105 Idaho 719, 723, 672 P.2d 1049, 1053 (1983), this Court said it “should refrain from changing or expanding a common law rule, where the legislature has *80already acted in the same area.” Unfortunately, the majority does not show the same restraint. The legislature has not addressed the rights and duties for personal injuries arising out of the landlord-tenant relationship. It has done so only with respect to contractual liability. The majority has stepped in and created strict tort liability on the part of landlords.
“The Idaho Constitution vests the power to enact substantive laws in the Legislature____ Just as Article II of the Idaho Constitution prohibits the Legislature from usurping powers properly belonging to the judicial department, so does that provision prohibit the judiciary from improperly invading the province of the Legislature.” In re SRBA Case No. 39576, 128 Idaho 246, 255, 912 P.2d 614, 623 (1995). Because the majority has violated Article II by usurping the power of the legislature, I respectfully dissent.
Justice W. JONES concurs.. Idaho Code § 6-1201 provides:
6-1201. LEGISLATIVE PURPOSE. Every year, in rapidly increasing numbers, the inhabitants of the state of Idaho and nonresidents are enjoying the recreational value of Idaho's mountains, rivers, and streams, many of which are remote and far removed for ordinary auto travel. The tourist trade is of vital importance to the state of Idaho, and the services offered by licensed outfitters and guides significantly contribute to the economy of the state of Idaho. The legislature recognizes that there are inherent risks in the recreational activities provided by outfitters which should be understood by each participant. These risks are essentially impossible to eliminate by outfitters and guides. It is the purpose of this chapter to define those areas of responsibility and affirmative acts for which outfitters and guides shall be liable for loss, damage, or injury, and to define those risks which the participant expressly assumes and for which there can be no recovery.
. Idaho Code § 6-1203 provides:
6-1203. DUTIES OF AN OUTFITTER. All outfitters offering professional services in this state shall provide facilities, equipment, and services as advertised or as agreed upon between the outfitter and the participant. All services, facilities, and equipment provided by outfitters in this state shall conform to safety and other requirements set forth in chapter 21, title 36, Idaho Code, and by the rules promulgated by the Idaho outfitters and guides board created by chapter 21, title 36, Idaho Code.
. Idaho Code § 6-1204 provides:
6-1204. DUTIES OF A GUIDE. Any guide providing personal services for an outfitter in this state shall conform to the standard of care expected of members of his profession and he shall comply with all duties and requirements placed on him by chapter 21, title 36, Idaho Code, and by the rules promulgated by the Idaho outfitters and guides board created by chapter 21, title 36, Idaho Code.
. Idaho Code § 6-1205 provides:
6-1205. DUTIES OF PARTICIPANTS. It is recognized that some recreational activities *79conducted by outfitters and guides are hazardous to participants regardless of all feasible safety measures which can be taken. Participants shall have a duty to act as would a reasonably prudent man when engaging in recreational activities offered by licensed outfitters and guides in this state. Participants shall have a duty not to:
(a) Do any act which shall interfere with the running or operation of an outfitter's or guide's activities, when such activities conform to the rules of the Idaho outfitters and guides board and to the requirements of chapter 21, title 36, Idaho Code;
(b) Use any outfitter’s or guide’s equipment or facilities or services if the participant does not have the ability to use such facilities or equipment or services safely without instructions until the participant has requested and received sufficient instruction to permit safe usage;
(c) Engage in any harmful conduct, or willfully or negligently engage in any type of conduct which contributes to or causes injury to any person;
(d) Embark on any self-initiated activity without first informing the outfitter or guide of his intentions and receiving permission from the outfitter or guide to engage in such self-initiated activity.
. Idaho Code § 6-1206 provides:
6-1206. LIABILITY OF OUTFITTERS AND GUIDES, (a) No licensed outfitter or guide acting in the course of his employment shall be liable to a participant for damages or injuries to such participant unless such damage or injury was directly or proximately caused by failure of the outfitter or guide to comply with the duties placed on him by chapter 21, title 36, Idaho Code, or by the rules of the Idaho outfitters and guides board, or by the duties placed on such outfitter or guide by the provisions of this chapter.
(b) The limitations on liability created by this chapter shall apply only to outfitters or guides appropriately licensed under the provisions of chapter 21, title 36, Idaho Code, and only when the outfitter or guide is acting within the course of his employment. In the event that there is damage or injury to a participant by the action of an outfitter or guide, and there is no exemption for liability for such outfitter or guide under the provisions of this act, the rules of negligence and comparative negligence existing in the laws of the state of Idaho shall apply.