Guest Opinion: Crosswalk case shows why change is needed on high court

May 16, 2014 

Attorney Breck Seiniger is running for the Idaho Supreme Court. Among the qualifications for the position surveyed by the Idaho State Bar are the candidates' "relevant professional experience" and "capacity for intellectual honesty."

As for experience, Breck's has earned him the professional recognition of Best Lawyers In America and Mountain States Super Lawyers, as well as a "Best Law Firms" ranking by U.S. News. He also enjoys the highest possible rating ("Preeminent") of the national Martindale-Hubbell Law Directory. Such credentials can only be earned, never appointed.

Equally important is Breck's "capacity for intellectual honesty." Never would he attribute to a litigant a losing argument the litigant hadn't really made. Indeed to do so would be akin to calling "strike three" – in a football game.

In the case of Woodworth vs. Idaho Transportation Department (available online at, a pedestrian in 2007 was hit in an unmarked, ill-lit crosswalk that was adequate when designed and built in 1954 but which had become a terrible hazard as the city and resulting traffic volumes mushroomed over the ensuing half-century.

ITD knew it from the accident reports and the area residents had long complained. In 2007 the plaintiff was the ninth pedestrian hit and injured in the preceding decade. Pretending the case was an attack on the original design (for which the State enjoys immunity), the State moved to throw the case out.

Third District Judge Bradley G. Ford went along. The plaintiff then appealed to the Supreme Court, where Justice and former Attorney General Jim Jones went along with Judge Ford and the State. Three of the other four Justices, including Seiniger's incumbent opponent, went along with Jim Jones and the thing was complete. Only Justice Warren Jones, writing in dissent, called the case what it truly was – and was not:

Somewhere along the line the matter got twisted by the State and court into a "design immunity claim" resulting in a motion for summary judgment by ITD seeking the immunity provided by the Idaho Tort Claims Act. [footnote omitted]. Although plaintiff argued that he was not contesting the immunity of ITD for the initial design of the highway, the State nevertheless persisted that his claims "arise out of the 'plan or design' for the construction or improvement of a state highway."

The district court gave lip service to plaintiff’s argument that ITD “failed to use ordinary care to carry out its responsibilities for management and oversight of the subject segment of 11th Avenue North,” but it focused entirely upon the basis of the State’s motion for summary judgment, which was design immunity under IC § 6-904(7). The court ignored completely the common law negligence claim and statutory duties which the Complaint clearly alleged were breached. Again, this is not and never has been a design immunity case.

The majority of this Court likewise joins the design immunity bandwagon. Nothing is ever said about the fact that this is a duty to warn and common law negligence case as well as a claim for breach of statutory duties imposed by the Legislature on ITD.

Design immunity is totally irrelevant in this case because the original design of the highway was never questioned.

Breck Seiniger's opponent, the incumbent Justice Horton, didn't author the re-casting of the plaintiff's argument in the Woodworth case; Justice Jim Jones did. But he went along with it. Breck Seiniger, like Justice Warren Jones, would have refused to characterize the case as a "design" case when it never was any such thing.

The citizens of Idaho need Breck Seiniger on the Idaho Supreme Court.

Furey, now in private practice, was counsel for the plaintiff in the Woodworth case, and has served as a law clerk to Chief Justice Donaldson of the Idaho Supreme Court in 1979-80 and as law clerk to Senior U.S. District Judge Fred M. Taylor 1980-81.

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