dissenting.
Today’s majority opinion suffers from a great many defects. However, the essence of my disagreement is that the Court today creates yet another new cause of action under the aegis of the Tort Claims Act, which is merely a second guessing of an on-the-scene decision by law enforcement officers. The Court confounds the duty of an owner of a motor vehicle with the “duty” of a law enforcement officer. The majority opinion, in my view, takes this Court into an area which insofar as the majority opinion is concerned is unsupported by any authority of any jurisdiction in the entire nation.
The majority opinion utilizes this Court’s opinion in Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986) as authority for much of the action taken by the majority today. I disagree with much of what is said in Sterling, however clearly that decision commands a majority of the members of this Court, represents the law of this state, and is unlikely to be overruled, at least in the near future. In defense of the majority opinion in Sterling, it should be pointed out that in the court below the case was decided by judgment on the pleadings. Therefore, the moving party admitted all the allegations of plaintiff’s complaint. Therein Bloom, the nominal defendant, was serving a probation, a special condition of which was that for a year Bloom was not to drive a motor vehicle except for employment purposes. Plaintiff’s complaint alleged (the truth of which was admitted) among other things, that probation authorities allowed Bloom to drive a motor vehicle for non-employment purposes, contrary to the order of probation, and allowed Bloom to operate an uninsured motor vehicle. Therefore it can be argued that Sterling in actuality is a relatively narrow case, and that the probation authorities had no discretion or authority to “allow” Bloom to operate a motor vehicle under those circumstances.
The facts of the instant case are, of course, substantially different from those of Sterling. The decision of the lower court was not based on the pleadings, but was rather based on a motion for summary judgment, supported by uncontroverted affidavits. There is nothing in the record to indicate that the law enforcement officers in question here in any way permitted, allowed, or entrusted the vehicle to Inama. Rather, the record is clear that the officers directed Inama not to drive the motor vehicle. There is no indication in the record that the officers had a “duty” to impound the vehicle. Rather, it is clear that they were vested with authority to make a decision. That decision was obviously made on the basis of Inama’s promises not to drive the vehicle and to obtain other assistance. While it is now easy to second guess that decision of the officers in view of the resulting circumstances, I suggest that such is unfair to the officers, and establishes a “duty” previously unknown to the law. To place upon law enforcement officers a “duty” to always be right in their on-the-spot street scene decisions, and then hold their employers liable when such a decision goes awry, continues the erosion of confidence of law enforcement officers in our system of justice. In my view, such on-the-spot street scene decisions by law enforcement officers are the very essence of discretionary acts which the legislature determined should be exempt from liability. In my view, the actions of law enforcement officers in this case best illustrate the fallacy of attempting to determine what is “discretionary” by the use of an artificial operational-planning dichotomy.
The majority opinion utilizes the authority of Kinney v. Smith, 95 Idaho 328, 331, 508 P.2d 1234, 1237 (1973) as establishing the “tort of negligent entrustment.” Kinney, which was also authored for the Court by Donaldson, J., was rather based on I.C. § 49-339: “No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not *219authorized hereunder or in violation of any of the provisions of this act.” The Court there said:
Among other things, the plaintiffs offered to prove that when the appellant furnished her car to the driver, she knew that his driver’s license had been suspended. If the appellant knowingly permitted her car to be driven by a person whose license had been suspended, then she acted in violation of I.C. § 49-339.
Therefore, in my view Kinney has no application to the case at bar.
The majority opinion offers no authority of any other jurisdiction in a factual context similar to the case at bar. The cases cited therein relate to owners of vehicles knowingly entrusting vehicles to persons who are intoxicated or otherwise incompetent or prohibited by law from operating motor vehicles. The case of Snyder v. City of Rochester, 124 A.D.2d 1019, 508 N.Y.S.2d 863 (1986) is cited as authority for the proposition that a municipality may be held liable when a police officer negligently entrusts a vehicle to a third person. I do not view Snyder as so holding. Rather, in Snyder it is clear that plaintiff was injured in a one-car accident while driving her boyfriend’s car. The court assumed the truth of Snyder’s factual allegations which were that one of the city’s police officers gave her the keys to the car and directed her to remove it from the scene or face arrest. Such, I suggest, is a far cry from the factual circumstances of the instant case.
The majority also cites Warren v. Dist. of Columbia, 444 A.2d 1 (D.C.App.1981) as support for the proposition that the officers in the instant case violated a “duty.” I disagree, and in my view Warren stands for exactly the opposite of the proposition sought by the majority. The majority quotes one short sentence from Warren. The decision of the court in Warren, 444 A.2d at 4, was based on,
[T]he fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen____ Accordingly, courts have without exception concluded that when a municipality or other governmental entity undertakes to furnish police services, it assumes a duty only to the public at large and not to individual members of the community.
The court in Warren cited with approval Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969). Therein a complaint had been dismissed alleging that law enforcement officers were negligent in failing to apprehend or prevent the reckless driving of two people who collided with an on-coming vehicle causing the death of five persons. The Arizona court concluded that while there was a duty to the general public, there was no individualized duty to the deceased occupants of the on-coming vehicle.
As stated in Williams v. State, 24 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137 (Cal.1983):
The allegations of negligence in the present case derived solely from defendants’ status as police employees and from plaintiff’s contention that defendants failed to do what reasonably prudent police employees would have done in similar circumstances. The difference is between ordinary negligence on the one hand and a novel sort of malpractice on the other. A person does not, by becoming a police officer, insulate him from any of the basic duties which everyone owes to other people. But neither does he assume any greater obligations to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large.
See also Chambers-Castanes v. King County, 100 Wash.2d 275, 669 P.2d 451 (1983); Jacobson v. McMillan, 64 Idaho 351, 132 P.2d 773 (1943); Worden v. Witt, 4 Idaho 404, 39 P. 1114 (1895).
In the instant case there is no showing of any special relationship between the officers and the victim, and hence there can exist no “duty.” The officers did not arrest, and had no basis upon which to arrest Inama. To suggest that the officers in the instant case violated a duty for which liability should be imposed, flies in the face of all authority. See Everton v. Willard, 468 *220So.2d 936 (Fla.1985); Dauffenbach v. City of Wichita, 233 Kan. 1028, 667 P.2d 380 (1983); Zavala v. Zinzer, 123 Mich.App. 352, 333 N.W.2d 278 (1983); Crouch v. Hall, 406 N.E.2d 303 (Ind.App.1980); Parker v. Sherman, 456 S.W.2d 577 (Mo.1970); Tomlinson v. Pierce, 178 Cal.App.2d 112, 2 Cal.Rptr. 700 (1960). See also Annot. 46 A.L.R.2d 1084.