specially concurring.
Chief Justice Bakes has written a comprehensive decision which addresses all of the various claims of the plaintiffs and explains in some detail why those claims, or better put, theories, are not entitled to be tried to a jury. I will comment briefly on what is believed to be a just disposition, but only after first setting out what is thought to be pretty much the main thrust of the Court’s opinion:
In his deposition, Eastwood testified that he learned for the first time in the latter part of 1985 that the material was in fact asbestos. Mr. Eastwood also testified that in his opinion there would have been no way for the employees who had actually been working with the material to discover its true composition before he had himself learned of its composition.
Appellants DeMoss and Ligeza filed a worker’s compensation claim with the employer’s surety after they had learned that the material they had been exposed to was asbestos. Those claims described their injuries as ‘possible asbestos contamination,’ and additionally that their ‘lungs may be affected by breathing the dust and fibers while removing asbestos covers.’ The claims did not assert allegations of mental or emotional injury. Appellants Stockton and Price did not file a worker’s compensation claim. DeMoss and Ligeza subsequently received notice from the Idaho State Insurance Fund, *183the city’s compensation carrier, that their claims were denied. No application for hearing was filed by the claimants with the Industrial Commission within the time provided in I.C. § 72-706.
At the time the complaint was filed, and up to the time that summary judgment was granted against them, none of the appellants made any claim or showing that they were suffering from asbestosis.
Appellants recognize that the statute, I.C. § 72-209, generally exempts the employer and its agents from liability. Appellants claim, however, that the employer — in this case, the City of Coeur d’Alene — and the other employee defendants are guilty of ‘unprovoked physical aggression’ under I.C. § 72-209(3), and thus not exempt.
Appellants have made no showing or even claim to suffer from asbestosis, cancer, or any other deleterious side effect from their exposure to asbestos. Appellants claim that they have suffered ‘psychic damage’ caused by their knowledge that they had been exposed to asbestos and, as a consequence, they fear that they may at some point in the future contract asbestosis and other possible diseases. Essentially, there has been no ‘deprivation’ of any constitutionally protected right, but simply a fear1 that such a deprivation may occur at some point in the future. However, that is insufficient to establish a claim under § 1983.
Furthermore, the plaintiffs in those cases had suffered some physical injury at the time they brought their complaint and were able to prove with a reasonable degree of probability that they would in fact contract cancer. For instance, in Jackson v. Johns-Manville [781 F.2d 394 (5th Cir.1986) ], the plaintiff had asbestosis (unlike appellants here) when he brought his claim. The Jackson court stated, ‘There was considerable testimony before the jury to the effect that Jackson will probably develop cancer; it is in that context that we discuss damages for mental anguish. We do not consider whether a plaintiff who cannot show that he will probably develop cancer may recover for mental distress’ 781 Fi2d at 413 (emphasis added) [emphasis in majority opinion]. Significantly, the Jackson court also noted that, ‘In a sense, the injury in this case is the inhalation of asbestos fibers. It was not an actionable injury, however, meaning it was not legally cognizable, until at least one effect of the inhalation became manifest. There was no cause of action at all, in other words, until the asbestosis appeared.’ 781 F.2d at 412 (emphasis added) [emphasis in majority opinion].
We do not decide today whether the United States Supreme Court would consider ‘gross negligence’ as sufficient to impose liability if a person be deprived of a constitutionally protected right. Plaintiffs have not been deprived of a constitutionally protected right merely because they fear that they may contract asbestosis or cancer sometime in the future. We simply note for the purpose of clarification that mere negligence is not sufficient to impose liability in the event that a deprivation has occurred. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). No deprivation has occurred in this case.
Moreover, as the district court observed, the appellants have not been denied relief in every forum. Their worker’s compensation claims were not ‘denied.’ In the first place, only appellants DeMoss and Ligeza filed worker’s compensation claims. The appellants Stockton and Price did not file such claims. The claims of appellants DeMoss and Ligeza were not denied by the Industrial Commission. No hearing was ever re*184quested as provided in I.C. § 72-706. Rather they were merely notified in a letter from the Idaho State Insurance Fund, the employer’s surety, that their claims were not covered under the worker’s compensation law. As the district court noted, ‘This was not a decision of the Industrial Accident Commission. It should be further noticed that plaintiffs did not pursue their claims before the Industrial Accident Commission and seek any determinative ruling from that body which could be appealed to the Supreme Court.’ The district court stated further that the State Insurance Fund is simply ‘an insurance carrier and makes no binding rulings or conclusions having the force of a decision.’ There is no support in the record for a claim that appellants have been denied a remedy in every forum, even assuming they had established a state tort claim or a 42 U.S.C. § 1983 deprivation of a constitutionally protected right.
118 Idaho at 177-182, 795 P.2d at 876-881.
In my view there is only one just conclusion to be drawn. The plaintiffs and their able counsel had good reason to believe that they were possessed of a viable cause of action which could be successful on some, if not all, of the various theories pleaded. What must be kept foremost in mind is that there are statutes of limitations in Idaho, and case law interpreting, applying, and perhaps modifying those statutes as a result of which the “limitations,” limiting the time in which to file an action, in actuality are time limits which forever bar and wholly preclude the pursuit of an action for damages. This is so notwithstanding that the proof of the injury which is the cause of the damages is in time capable of being proved because substantial proof of the injury has subsequently materialized. It may very well be what will develop insofar as these plaintiffs are concerned. In the meanwhile, not only do the plaintiffs endure the emotional stress occasioned by the exposure to asbestos, they have endured the stress and worry of being uncertain as to whether they do have a viable claim, and stand in the danger of losing their claims later on when a court might rule that their claims are time-barred, i.e., they cannot get into court.
Faced with a classic Catch-22 situation, and advised by extremely capable counsel, the plaintiffs have come to court, but are now told that they do not presently have valid justiciable claims. The Court’s opinion presently appears to be soundly written and it disposes adversely to the plaintiffs of each and every one of their theories of relief. The net of the Court's opinion is that it tells the plaintiffs that their claims are prematurely brought, and while they have been exposed to asbestos in a rather indifferent manner by the named defendants, they cannot medically establish that they are victims of asbestosis. In short, they have not been injured. This, to them, may not make a lot of sense. It is also of a lingering concern in my mind because it bears much similarity to the situation at Hanford, Washington, and its residents. It is difficult to be wholly persuaded that the emotional concern, fear, doubt, and trepidation which has allegedly beset these plaintiffs, and likewise the people of Hanford, does not arise to the level of an injury. In a large sense it depends on the individual. People have been known to worry and fret themselves to death in far less serious circumstances. Others are not so affected.
But what the Court does today is to rule that on the evidence before it, the plaintiffs have not been injured, and therefore do not have claims to litigation. That is not to say that the situation will change accordingly when and if symptoms of illness materialize and are medically probable. In sum, the Court should include in its opinion that the action is dismissed, but is res judicata of nothing other than a critical element of viable claims which were not established, namely injury. Thus viewed, the case is similar to an action to collect on a promissory note, but brought prior to maturity. All the Court should do today to make this one of its best decisions is to add that the dismissal is without prejudice.
. To be more accurate, this is not "simply a fear” but an induced fear caused by and attributable to the defendants.