Specially Concurring.
The Court’s opinion correctly applies the applicable law to the facts of this ease and I therefore concur. It may seem odd that a third party which is not the direct employer of the injured workers and which is alleged *807to have violated a duty owing to the highway-using public at large, should be shielded from liability for its alleged negligence. During oral argument, the State’s counsel conceded that statutory employer immunity may not have precluded Appellants’ negligence claim, had their damages resulted from the State’s negligence in another location down the road, off of the location where the contractual work was being performed. Had any person other than a statutory employee been injured or killed by the State’s alleged failure to design and maintain a safe traffic control plan, the State would not have had immunity. Even though the traffic control plan was not part of the work being performed under contract by the direct employer of the injured workers, the State is able to take advantage of the statutory employer immunity. This was not always the case.
In Runcorn v. Shearer Lumber Products, Inc., 107 Idaho 389, 690 P.2d 324 (1984), this Court held that a third party could be held liable for damages even though it fell within the statutory employer definition. This was so because I.C. § 72-223 then provided that an injured employee could sue a third party for damages and that a third party subject to such liability “shall include those employers described in section 72-216, Idaho Code, having under them contractors or subcontractors who have in fact complied with the provisions of’ the statute requiring procurement of workmen’s compensation insurance. Id. at 393, 690 P.2d at 328. However, a simple legislative change in 1996 effectively overruled the Runcorn holding. Chapter 191 of the 1996 Session Laws simply added a “not” after “shall” in the above-quoted language so that third parties subject to suit “shall not include” those employers described in section 72-216, Idaho Code. Thus, despite the fact that employees of the direct employer in this case called to the State’s attention the unsafe conditions created by the State’s traffic control plan at the work site, concerns which the State ignored to the substantial detriment of the Appellants, the State can properly claim immunity from a damage claim. The employees had pointed out the need to lower the speed limit, put in crash attenuators, or allow crossovers, in order to put some separation between the workers and the fast moving traffic. The State declined to take such measures. It is alleged that two statutory employees died and several others were severely injured as a result. Because of the current language of section 72-223, the sole source of compensation of the Appellants is under the worker’s compensation law.