ANTHONY E. GRABICKI, United States Bankruptcy Trustee, for and on behalf of TIMOTHY K. THOMPSON and JANET M. THOMPSON, husband and wife, Plaintiffs,
CITY OF LEWISTON, a political subdivisio of the State of Idaho, Defendant-Respondent. and C. BARRY ZIMMERMAN, United States Bankruptcy Trustee, for and on behalf of THOMPSON'S AUTO SALES, INC., an Idaho corporation, Plaintiff-Appellant,
2013 Opinion No. 60
Appeal from the District Court of the Second Judicial District of the State of Idaho, Nez Perce County. Hon. Carl B. Kerrick, District Judge.
The district court's judgment dismissing Zimmerman's claims is vacated and the case is remanded to the district court for further proceedings consistent with this opinion.
Creason, Moore, Dokken & Geidl, PLLC, Lewiston, for appellant. Samuel T. Creason argued.
Anderson, Julian & Hull LLP, Boise, for respondent. Chris H. Hansen argued.
This appeal arises from an action filed against the City of Lewiston (the City) by Tim Thompson, Janet Thompson, and Thompson's Auto Sales (collectively, Thompson). Thompson filed a claim under the Idaho Tort Claims Act (ITCA), alleging the City negligently designed and installed a storm water drain system on a city street adjacent to Thompson's property, which caused storm water runoff to flow onto Thompson's property and damage it. After suit was filed, Thompson entered bankruptcy proceedings and the bankruptcy trustee, C. Barry Zimmerman, was substituted as Plaintiff in the action. The City moved for summary judgment on the grounds of discretionary immunity and design immunity. The district court denied the motion as to design immunity, but granted the motion on the ground of discretionary immunity. Zimmerman appealed, arguing that the discretionary immunity exception to liability under the ITCA does not grant immunity from liability for damage caused by negligent design and, alternatively, that even if discretionary immunity is considered, it is inapplicable in this case because the City's actions were not discretionary within the meaning of the exception. We reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs in the underlying action in this case were Tim and Janet Thompson and Thompson's Auto Sales, Inc., the automobile sales business they owned together. The business was located at 306 21st Street in Lewiston, Idaho. In January 2007, the Thompsons brought an action for negligence against the City of Lewiston under the Idaho Tort Claims Act. However, during the course of those proceedings, the Thompsons and Thompson's Auto Sales, Inc. entered bankruptcy and United States Bankruptcy Trustee C. Barry Zimmerman was substituted as plaintiff and is therefore the appellant.
In May 2003, the City of Lewiston changed its storm water drain system at the intersection of 21st Street and Idaho Street from a "valley" gutter system to a "bubble-up" system. Zimmerman alleges that in 2006, the new system failed to contain storm-water flowing down 21st Street and that the resulting flood across the Thompson property damaged the property and rendered a large portion of it unusable. Zimmerman further alleges that the City negligently designed the new storm-water drain system and that the City's negligence was the cause of its damages.
The design and plans for the new storm-water drain system were prepared by John Watson, the assistant city engineer, as part of the 2003 Summer Street Maintenance Project. According to Watson, the decision to change the storm-water drain system was taken in response to safety concerns with the valley gutter system. Watson's design consisted of a schematic of the intersection and a detail page. Neither party presented any evidence related to the specific engineering standards or requirements that the project was required to follow. However, Zimmerman offered expert opinion evidence that the plan and design failed to meet any standard.
The City moved for summary judgment on the grounds it was immune from liability under the ITCA, citing Idaho Code §§ 6-904(1) and (7), which provide exceptions to liability for exercising discretionary functions and for designs that conform to engineering standards or have prior approval. In support of its motion, the City presented affidavits from Lowell Cutshaw, the City Engineer, and Joel Ristau, the Public Works Director. The City contends these affidavits demonstrate that the design was properly approved before construction began. City Council Minutes from June 9, 2003, show that the City accepted a bid to complete the 2003 Summer Street Maintenance Project, which included the storm-drain replacement. In response, Zimmerman presented evidence that the former Mayor and two City Council members had no recollections of discussing that project. Zimmerman also submitted the affidavit of Janice Vassar, the City Manager, indicating that the City Engineer had authority to approve some projects independently, but substantial projects would have required approval from the City Council or City Manager.
After a hearing, the district court granted the City's motion in part and denied it in part, deciding that the City was immune from liability for damages resulting from negligent design, but that there remained questions of fact regarding negligent maintenance. The parties filed motions for reconsideration, which the district court denied. Because the plaintiff (at that time Thompson) conceded there was no evidence to support the negligent maintenance claim, the trial court dismissed the claim. However, the trial court permitted Thompson to amend its complaint to add several claims for equitable relief, and the litigation therefore continued. As a result of the bankruptcy proceedings, the Thompsons no longer have an interest in the ...