concurring in part and dissenting in part:
I concur in that portion of the majority opinion which affirms the trial court on the cross appeal filed by defendant Martin, which alleged that the liability imposed upon him by the jury verdict must be reversed since negligence is an insufficient basis upon which to base a 42 U.S.C.A.1983 claim against him. However, I dissent from the majority’s finding of joint and several liability against the defendant Martin as a result of the liability imposed upon the defendant Halsey by the jury.
I
The defendant cross appellant Martin, a Boise police officer, asserts on appeal that under the decision of the United States Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), he could not be held liable for negligent deprivation of the plaintiff’s constitutional rights, and that it was improper to so instruct the jury. As the majority opinion correctly points out, “[T]he crux of whether a negligent cause of action under 1983 may be made out is whether the alleged constitutional deprivation is redressable through resort to an adequate state tort remedy procedure.” Ante at 29. The majority then affirms the trial court’s submission to the jury of a negligent deprivation of constitutional rights cause of action under Section 1983 in this case because the majority agrees with the trial court that “[i]n this case, no adequate state tort remedy exists.” Ante at 29. The majority arrives at that conclusion because it also agrees with the district court’s analysis that “Martin is immune from any state tort liability under the Idaho Tort Claims Act in light of the interpretation given to that act by this Court in Chandler v. City of Boise, 104 Idaho 480, 660 P.2d 770 (1983).” Ante at 30. Agreeing that Martin is immune from any state tort remedy under the Idaho Tort Claims Act, the majority then concludes, “Thus, we hold that a negligent cause of action is maintainable in this case under 14 U.S.C. 1983.” Ante at 29.
I concur with the majority’s analysis of Martin’s immunity under the Idaho Tort Claims Act, based upon Chandler v. City of Boise, supra, which the majority reaffirms today, and therefore concur in that portion of the majority opinion dismissing defendant Martin’s cross appeal.
II
However, what the majority then does, in applying the doctrine of joint and several liability and imposing liability on Martin because of the conduct and judgment rendered against the defendant Halsey, is incomprehensible. It is totally inconsistent to say on the one hand that, in order to uphold the negligent deprivation of constitutional rights cause of action under Section 1983 against Martin, the plaintiff must have no state tort law remedy against Martin and then in the next breath state that *143the defendant Martin is liable to the plaintiff Shields because the judgment rendered against the defendant Halsey is or should be joint and several.
There are even more inconsistencies in the majority opinion, but before those inconsistencies are discussed, the record must be set straight regarding the facts of this particular case. The majority has presented only the appellant’s side of the record in order to justify its ruling. However, the fundamental rule in appellate practice, long followed by this and every other appellate Court, is that the case on appeal must be viewed most favorably to the respondent which, on the issue of joint and several liability, is the defendant Martin in this case. E.g., Fajen v. Powlus, 96 Idaho 625, 533 P.2d 746 (1975); May v. Triangle Oil Co., Inc., 96 Idaho 289, 527 P.2d 781 (1974). (An exception is cases involving appeals from summary judgment, in which the record should be viewed most favorably to the person opposing the summary judgment since there has been no resolution of facts.)
Viewing the record most favorably to the respondent, as our prior cases say we must do on appeal, Fajen v. Powlus, supra, the facts reveal a different story than what the majority tells. On March 11, 1980, the day the child was taken by the mother from the day care center, the father merely had a “temporary custody” order dated August 9, 1978, which stated that the father should have temporary custody only “until the hearing scheduled ... for August 23, 1978____” The hearing never took place, and the mother had not yet taken action to regain physical custody pursuant to the previous court order awarding her permanent legal custody of the child. Therefore, when Officer Martin was dispatched in Boise to render a “civil standby," i.e., ensure that there was no violence in returning physical custody, both parents had arguable and reasonable legal bases claiming entitlement to custody of the child. The mother’s position was that the father’s temporary custody order had, by its terms, expired nineteen months earlier, and she had the only legitimate permanent custody order. Even if Officer Martin had seen the subsequent temporary order there is no way he could have concluded that the mother had no right to take the child. This is not to say that Officer Martin could not have proceeded more cautiously. However, he is not as culpable as the majority represents. In fact, the father had earlier gained the temporary physical custody in a manner not unlike the means used by the mother. In July, 1978, the father drove from Boise to the mother’s Oregon residence where he admittedly “lied” to the mother that he would return the child in two weeks according to his visitation rights. Instead the father took the child home (out of state) and immediately took ex parte legal action to keep the child. Subsequently, the father moved three times, once out of Idaho, and the record does not show whether the custody court or the mother were advised of the moves. Having been deprived of her child through such means, it is not surprising (although not condoned) that the mother resorted to similar means. The majority states that the mother “absconded” to another state with the child when, in fact, she merely returned home to her husband and residence in Oregon where she took legal action to keep the child. Only subsequent to all this was the father awarded definite permanent legal custody. The mother may not have been providing the best care for the child, but the record indicates that the father had his problems also. The case presents the sorry state of affairs resulting from divorce in our society, and I do not condone the actions of either parent. However, it is easy to see how a well-meaning police officer could be dragged into the fray and charged with improper conduct while attempting to ensure against violence.1
*144On the factual record presented above, the jury made factual determinations that the defendants: were liable under different laws; breached different duties; caused divisible injuries; and the court ruled that they were not jointly and severally liable. In fact, the plaintiffs approved the separate verdict forms and should not be heard to assign error on that basis. See Young v. Group Health Co-op of Puget Sound, 85 Wash.2d 332, 534 P.2d 1349 (1975); Cf. McBride v. Ford Motor Co., 105 Idaho 753, 673 P.2d 55 (1983) (party may not assign error to an instruction requested and given). The jury further determined that Officer Martin had “caused” not much more than nominal damages. Those findings of fact by the court and jury were not “clearly erroneous” and should not be set aside on appeal. I.R.C.P. 52(a); Glen v. Gotzinger, 106 Idaho 109, 675 P.2d 824 (1984); Webster v. School Dist. No. 25, 104 Idaho 342, 659 P.2d 96 (1983). The majority violates the “clearly erroneous” rule by substituting its own findings of fact that Officer Martin allegedly acted in concert with the mother to cause indivisible injuries.
If the majority is alleging that the joint and several liability instruction should have been given, then the case should be remanded for a new trial. Again, the majority opinion is inconsistent in its treatment of this issue. The majority first states that “the jury ... should have been instructed on joint and several liability,” based upon plaintiff’s requested jury instruction number 3, which the majority states the district court erroneously failed to give. The district court had refused to give that instruction because the defendant Martin was immune under the Idaho Tort Claims Act from liability for the state tort actions as analyzed in Part I above. The majority holds that “the district court’s rationale, ... was in error, as was the failure to instruct the jury on joint and several liability.” If, as the majority states, it was error for the district court not to instruct the jury on the question of joint and several liability, then that issue must be a question of fact and the majority should be remanding this matter for a trial on that issue. It is entirely possible that the jury would have found that Officer Martin did not “unite in an act which constitutes a wrong to another, intending at the time to commit it, or performing it under circumstances which fairly charged them with intending the consequences which follow,” as set out in the instruction approved by the majority. Nevertheless, after concluding that the jury should have been instructed on the issue of joint and several liability, the majority inexplicably then takes over the fact-finding function and concludes that “Martin and Halsey, acting concurrently and in a concerted manner, committed acts found to be torts — acts which produced an indivisible harm to both plaintiffs.” Ante at 27. If the majority is correct that the jury should have been instructed on that issue, then the majority is certainly in error in not remanding this matter back to the trial court for a retrial on that issue, rather than taking over the factfinding function itself.
It is conceded by all parties on appeal that the mother could not be held liable for any damages or violation of the federal' law, 42 U.S.C. § 1983. Only those acting under color of state law can violate 42 U.S.C. 1983, and she was not. Her damages could only have resulted from state tort law. Conversely, all parties on appeal, and the majority of this Court, agree that Officer Martin is immune from state tort law claims, and the only source of his liability is under 42 U.S.C. § 1983, and he was found by the jury to have caused only minimal damages from that violation. Today’s opinion finding joint and several liability for these two defendants circumvents both these non-liabilities by making an immune governmental employee liable for an' individual’s intentional torts and the private individual liable for the government’s so-called “constitutional torts.” That result is wholly unprecedented in the law.
Today’s holding has already been partially neutralized by the legislature’s 1980 amendment to the Idaho Tort Claims Act which states:
*145“[T]he governmental entity and its employee shall be subject to liability only for the pro rata share of the total damages awarded in favor of a claimant which is attributable to the act or omission of the employee____” I.C. § 6-903(b).
This statutory abrogation of joint and several liability, at least as to governmental entities and their employees, was enacted March 28, 1980, effective July 1, 1980. 1980 Idaho Sess.Laws, ch. 218, p. 490. Upon the filing of a petition for rehearing in this matter, we will no doubt have to consider the question of whether or not that amendment applies to the circumstances in this case which occurred on March 11, 1980.
Ill
I also dissent from Part IV of the majority opinion on attorney fees. While the plaintiff is indeed entitled to attorney fees under 42 U.S.C. § 1988, the amount should be in proportion to the limited theory on which the plaintiffs prevailed against Officer Martin. Throughout the case the plaintiffs alleged and pursued a full ten causes of action against three defendants, Officer Martin, the City of Boise, and the mother. The total attorney fees expended by plaintiffs were $15,783. Much effort was directed against the City of Boise, which was dismissed from the case. Much effort was directed toward Officer Martin on other theories on which plaintiffs lost. Effort was also directed against the mother. Plaintiffs prevailed against Officer Martin on only one cause of action to prove damages of only $1,668.50. Yet, Officer Martin was saddled with 90% of the plaintiffs’ attorney fees for upwards of 250 hours expended by two attorneys. See All American Realty, Inc. v. Sweet, 107 Idaho 229, 687 P.2d 1356 (1984) (140 hours to process a summary judgment “unjustified”). The hours claimed by plaintiffs would represent an attorney working nearly a full two months to process this two-day trial. The award of 90% of the attorney fees represents an abuse of discretion on the part of the trial court, All American Realty v. Sweet, supra, and the issue should be remanded for the trial court to make a more accurate and realistic allocation of fees.
DONALDSON, C.J., concurs.. Officer Martin did ask the child care person not to call the father. While this was improper, his fear was that the presence of the father would greatly increase the possibility of violence.