1

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 48289

TOM WILLIAMSON, )

)

 Plaintiff-Appellant, )

) Boise, November 2021 Term

v. )

) Opinion Filed: February 25, 2022

ADA COUNTY, ADA COUNTY )

SHERIFF, ASHLEY RINO & D. ) Melanie Gagnepain, Clerk

KOPCZYNSKI, )

)

 Defendants-Respondents. )

____________________________________)

Appeal from the District Court of the Fourth Judicial District of the State

of Idaho, Ada County. Peter G. Barton, District Judge. 

The district court decision is affirmed in part, reversed in part, and remanded.

Johannes S. A. Claus III PLLC, Boise, attorney for Appellant. Johannes S. A.

Claus III argued.

Ada County Prosecuting Attorney, Boise, attorney for Respondents. Erica White 

argued.

_________________________________

BEVAN, Chief Justice.

While incarcerated in the Ada County jail, Appellant Tom Williamson fell from the upper 

bunk bed during a request that he stand for roll call. Williamson suffered a head injury and sued

Respondents Ada County and the Ada County Sheriff (collectively “Ada County”), alleging they 

were negligent in maintaining unsafe bunk beds, ordering him to descend from the top bunk bed 

for roll call, and in responding to injuries he suffered. The district court dismissed the case after 

concluding Ada County was immune from liability under Idaho Code sections 6-904(1) and

904B(5). Williamson appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background 
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Williamson alleged the following facts in his complaint.1 Williamson was booked into the 

Ada County jail on the evening of March 27, 2017. He was assigned a top bunk in a cell with three 

other inmates. On the morning of March 28, 2017, Williamson was awakened by two Ada County 

jailers for roll call. Williamson was told he could not respond from his bed and that he had to

respond by standing in front of the jailer. Williamson proceeded to lower himself from the top 

bunk, but “due to the faulty design and configuration of the bunk beds used by Ada County, there 

was no ladder or other means to safely descend from the top of the bunk bed, and Mr. Williamson, 

attempting to comply with the jailer’s order, fell backward from the top bunk onto the concrete 

floor of the Ada County jail cell.” Williamson lost consciousness, the impact of his head striking 

the concrete floor causing blood to splatter about the cell. Upon regaining consciousness, 

Williamson was escorted by student nurses to the medical unit in his cell block. Shortly thereafter,

Williamson was seen by a registered nurse (RN) in the medical unit of the Ada County jail. He

was given 2 ice packs, 4x4 gauze pads, non-prescription ibuprofen, and instructed to shower to 

remove the blood from his hair. The RN did not inform Williamson what he should do if his 

condition failed to improve or if it worsened. The RN did not send Williamson to be examined by 

a doctor despite his request to see a physician. Williamson was taken back to his cell and told to 

return to his same top-level bunk. Despite his condition, he was left in a noisy cell with the lights 

on. Once back in his cell, around 9 a.m., Williamson experienced vertigo, double vision, and 

nausea. Williamson managed to get off his bunk bed and went to the urinal where he then vomited

several times. 

Around noon, Williamson was transferred to another cell with a bed on a lower bunk. 

Williamson told the jailer he wanted to see a doctor and was told that he would see a doctor the 

following morning. At 12:23 p.m., a licensed practical nurse (LPN) visited Williamson in his cell. 

Williamson complained of repeated vomiting and continual nausea, and again asked to see a 

doctor. The LPN did not take any action to schedule a doctor visit and did not advise him of any 

 

1 We recite these facts as alleged, which at this juncture are construed in Williamson’s favor. Williamson’s complaint 

was dismissed on Ada County’s motion to dismiss. “In ruling on a 12(b)(6) motion, the district court is to consider 

only the facts set forth in the pleadings.” Hammer v. Ribi, 162 Idaho 570, 574, 401 P.3d 148, 152 (2017) (citing Young 

v. City of Ketchum, 137 Idaho 102, 104, 44 P.3d 1157, 1159 (2002)). “These facts must be taken as true for the 

purposes of a motion to dismiss.” Id. (citing Idaho Wool Growers Ass’n, Inc. v. State, 154 Idaho 716, 720, 302 P.3d 

341, 345 (2012)).
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procedures that would be required to request a doctor visit. The LPN told Williamson that she 

would return that afternoon to check on his vital signs, but did not return. 

At 1:30 p.m., Williamson was taken to his video arraignment where he informed the judge 

and his public defender that he sustained a head injury; however, the proceeding went forward 

without interruption or questioning to verify whether Williamson needed further assistance. 

Williamson then returned to his cell, where he suffered throughout the night with a massive 

headache, tingling in the tips of his thumbs and fingers, nausea, and continual vomiting for at least 

six hours. He also claimed to smell a foul, metallic odor. Williamson’s cellmates told the jailers 

that he was suffering from a concussion and needed to see a doctor. Despite his condition, 

Williamson was left in his cell with the lights on all night and he was unable to sleep, deteriorating 

his condition further. When allowed out of his cell for breaks, Williamson asked to see a medical 

doctor multiple times and was told he would see a doctor the following morning. 

During the next morning, Williamson could see a doctor was in a nearby cell, so he waited 

for the doctor to come to his cell. The doctor never came. Williamson went to the guard station 

during his lunch break to ask why he had not been seen by the doctor. Instead of responding to his 

inquiry, the jailers returned Williamson to his cell. Around 3:00 p.m., still nauseous and suffering 

from vertigo, Williamson hit the emergency button on the advice of one of his cellmates. 

Williamson explained he hit the emergency button because he was in pain and had been asking for 

medical attention. The jailer informed Williamson that if he wanted to see a doctor he needed to 

fill out a blue colored “Ada County Jail Health Request” form, and that because he had not filled 

out the form, he was not on the list to see the doctor. No one had informed Williamson about the 

form despite his repeated requests to see a doctor over the previous 29 hours. While Williamson 

was filling out the form, a jailer approached and told Williamson to gather his belongings because 

he had been bonded out. Upon leaving the jail with the employee of the bonding company, 

Williamson left behind a 2’ by 3’ towel that was soaked with blood from his head wound. 

After being taken home, Williamson’s mother drove him to a Primary Health clinic where 

he was examined by a physician who instructed him to immediately go to a hospital emergency 

room for a CT scan. Around 6:00 p.m. Williamson arrived at the Saint Alphonsus emergency room 

where he was examined by a physician and a CT scan was administered. The CT scan confirmed 

that Williamson had sustained a concussion and the doctor instructed him to attend 5 to 7 days of 

brain injury services at STARS physical therapy/concussion program. Since leaving the jail, 
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Williamson reports continued lack of feeling in his fingertips and has sought treatment to 

determine the etiology of the condition. 

Williamson alleges that the lack of diagnosis and/or treatment by the Ada County medical 

staff during the first 30 hours after the fall and concussion greatly exacerbated his symptoms and 

worsened his prognosis. Williamson was uninsured at the time of his injury and has incurred 

medical bills relating to his head injury totaling over $14,000. Along with the pain from the 

headaches and tingling in his hands, Williamson alleges he has suffered significant mental 

impairment because of the injury, including loss in cognitive function and ability to focus and 

concentrate on the kind of complex tasks he used to perform with ease. As a result, Williamson’s 

claims his income potential has been diminished.

B. Procedural Background 

Before filing his complaint, Williamson timely filed a Notice of Tort Claim with the Ada 

County Clerk’s Office pursuant to the Idaho Tort Claims Act (ITCA). Thereafter, Williamson filed 

a complaint against Ada County2 raising three causes of action: (1) negligence under the ITCA 

and common law; (2) negligence in providing medical care; and (3) negligent infliction of 

emotional distress.

Over a year later, Ada County moved to dismiss under Idaho Rule of Civil Procedure 

12(b)(6). Ada County asserted that it was statutorily immune from liability under the ITCA 

because decisions about prisoner safety and bedding were discretionary decisions. Williamson did 

not file any written opposition to the motion; however, his counsel opposed the motion at oral 

argument. 

The district court granted Ada County’s motion to dismiss. In considering Williamson’s 

first cause of action for negligence, the district court determined that Ada County was performing 

a discretionary function or duty when Williamson was injured; thus, it was immune under the 

ITCA. Next, the district court determined that Ada County was exempt from liability for 

Williamson’s claims arising from medical treatment because Idaho Code section 6-904B explicitly 

exempts government actors from liability over medical decisions provided to a person in custody. 

Last, the district court dismissed Williamson’s claims for negligent infliction of emotional distress 

 

2 Williamson initially named Ashley Rino (the RN who treated him) and D. Kopczynski (the LPN who treated him) 

in the complaint, however, he failed to timely serve them and stipulated to their dismissal from the case. 
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after concluding they were grounded in torts for which Ada County was exempt from liability.

Williamson filed a timely notice of appeal.

II. ISSUES ON APPEAL

1. Did the district court err in concluding that Ada County’s selection of bunk beds was a 

discretionary function?

2. Did the district court err in dismissing Williamson’s claim that Ada County was negligent 

in ordering him to descend from the top bunk for roll call?

3. Did the district court err in concluding Ada County was immune from liability for 

Williamson’s claims alleging negligent medical treatment?

4. Did the district court err in dismissing Williamson’s claims for negligent infliction of 

emotional distress before allowing Williamson to produce evidence of his physical 

ailments? 

5. Did the district court err in failing to rule on whether immunity was precluded by the Eighth 

Amendment of the U.S. Constitution? 

6. Is Ada County entitled to attorney fees under Idaho Code section 12-121?

7. Should sanctions be awarded against Ada County under Idaho Appellate Rule 11.2?

III. STANDARD OF REVIEW

This Court reviews a district court’s dismissal of a complaint under Idaho Rule of Civil 

Procedure 12(b)(6) de novo. Parkinson v. Bevis, 165 Idaho 599, 603, 448 P.3d 1027, 1031 (2019)

(citing Taylor v. McNichols, 149 Idaho 826, 832, 243 P.3d 642, 648 (2010)).

When this Court reviews an order dismissing an action pursuant to I.R.C.P. 

12(b)(6), we apply the same standard of review we apply to a motion for summary 

judgment. A 12(b)(6) motion looks only at the pleadings to determine whether a 

claim for relief has been stated. On review of a dismissal this Court determines 

whether the non-movant has alleged sufficient facts in support of his claim, which 

if true, would entitle him to relief. In doing so, the Court draws all reasonable 

inferences in favor of the non-moving party.

Id. at 603–04, 448 P.3d at 1031–32 (quoting Savage v. Scandit Inc., 163 Idaho 637, 640, 417 P.3d 

234, 237 (2018)).

IV. ANALYSIS

Williamson alleged three causes of action in his complaint: (1) negligence in failing to 

provide adequate safety equipment in the jail bunk beds and in ordering Williamson to descend 

from the top bunk for roll call; (2) negligence in failing to provide adequate medical care after the 

injury; and (3) negligent infliction of emotional distress. In its motion to dismiss, Ada County 

argued that it was statutorily immune from liability for Williamson’s claims under the Idaho Tort 
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Claims Act. “The ITCA establishes that governmental entities are subject to liability for their own 

negligent or wrongful acts, and those of their employees who were acting within the course and 

scope of their employment.” Hoffer v. City of Boise, 151 Idaho 400, 402, 257 P.3d 1226, 1228 

(2011); I.C. § 6-903. “However, the ITCA also expressly exempts certain causes of action from 

the general rule that the entity is subject to liability.” Id.

A. We affirm the district court’s decision that Ada County’s selection of bunk beds was 

a discretionary function for which Ada County has been granted immunity.

Williamson first claims that Ada County failed to introduce adequate facts to support that 

its choice of bunk beds was a discretionary function; thus, the district court erred in ruling that Ada 

County was entitled to immunity on his first cause of action. Below and on appeal, Ada County 

claims it qualifies for the “discretionary function” exception to governmental liability found in 

Idaho Code section 6-904(1), which states in pertinent part:

A governmental entity and its employees while acting within the course and scope 

of their employment and without malice or criminal intent shall not be liable for 

any claim which:

1. Arises out of any act or omission of an employee of the governmental entity 

exercising ordinary care, in reliance upon or the execution or performance of a 

statutory or regulatory function, whether or not the statute or regulation be 

valid, or based upon the exercise or performance or the failure to exercise or 

perform a discretionary function or duty on the part of a governmental entity or 

employee thereof, whether or not the discretion be abused.

I.C. § 6-904(1).

“The discretionary function exception applies to governmental decisions entailing planning 

or policy formation.” Dorea Enterprises, Inc. v. City of Blackfoot, 144 Idaho 422, 425, 163 P.3d 

211, 214 (2007) (citing Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986)). “There is a twostep process for determining the applicability of this exception.” Id. (citing Ransom v. City of 

Garden City, 113 Idaho 202, 205, 743 P.2d 70, 73 (1987); City of Lewiston v. Lindsey, 123 Idaho 

851, 856, 853 P.2d 596, 600 (Ct. App. 1993)). “The first step is to examine the nature and quality 

of the challenged actions.” Id. “Routine, everyday matters not requiring evaluation of broad policy 

factors will more likely than not be ‘operational.’ ” Id. (quoting Ransom, 113 Idaho at 205, 743 

P.2d at 73). Conversely, “[d]ecisions involving a consideration of the financial, political, economic 

and social effects of a policy or plan will generally be planning and ‘discretionary.’ ” Id. “While 

greater rank or authority will most likely coincide with greater responsibility for planning or policy 

formation decisions; . . . those with the least authority may, on occasion, make planning decisions 
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which fall within the ambit of the discretionary function exception.” Id. (quoting Ransom, 113 

Idaho at 204, 743 P.2d at 72). “The second step is to examine the underlying policies of the 

discretionary function, which are: to permit those who govern to do so without being unduly 

inhibited by the threat of liability for tortious conduct, and also, to limit judicial re-examination of 

basic policy decisions properly entrusted to other branches of government.” Id. (citing Ransom, 

113 Idaho at 205, 743 P.2d at 73).

First, the Court must examine the “nature and quality” of Ada County’s bedding decision 

to determine whether it was a daily, routine decision not involving the consideration of policy 

factors (i.e., operational), or if it was a decision based on a consideration of its financial, political, 

economic, and social effects (i.e., discretionary). City of Lewiston, 123 Idaho at 856, 853 P.2d at

600. Put another way, “[i]n suits brought under the Tort Claims Act, the ‘planning/operational’

test is used to demarcate decisions involving the formation of basic policy, entitled to immunity, 

from decisions involving the execution or implementation of that policy, not entitled to immunity.” 

Ransom, 113 Idaho at 204, 743 P.2d at 72.

Ada County and the district court relied on a factually similar case that arose out of the 

federal district court in Connecticut. In Francis v. United States, the plaintiff fell and injured her 

ankle as she descended from a top bunk in a cell, claiming that she fell because the bunk bed did 

not have a ladder. No. 3:10CV1474 AWT, 2011 WL 3563146, at *1 (D. Conn. Aug. 12, 2011). 

The plaintiff also claimed that her recovery was delayed because she received improper medical 

treatment. Id. The U.S. District Court applied the following two-part test to determine what 

constitutes a “discretionary act” under the Federal Tort Claims Act:

First, a discretionary act must be involved such that there is an element of judgment 

or choice. Discretionary acts include day-to-day management decisions if those 

decisions require judgment as to which of a range of permissible courses is wisest. 

The court only needs to consider the second step if the action was discretionary 

under the first step. Second, even assuming the challenged conduct involves an 

element of judgment, it remains to be decided whether that judgment is of the kind 

that the discretionary function exception was designed to shield.

Id. at *5–6 (internal citations and quotations omitted). The U.S. District Court found the first prong 

to be satisfied “[b]ecause the decision as to whether to provide ladders on bunk beds is a matter of 

safety, involves discretion and is not specifically provided for by statute.” Id. at *6. The court 

found the second prong was also met because “[p]roviding ladders presents ‘valid safety and 

security concerns relating to the beds at issue. Guard rails, and sometimes ladders, are not included 
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because of the danger that they can be broken off and used as weapons or escape devices.’ ” Id. 

(quoting Bultema v. United States, 359 F.3d 379, 384 (6th Cir. 2004)). Thus, “[t]he decision 

generally not to have bed rails . . . involve[s] the type of across-the-board policy-making judgment 

that the discretionary function exception was meant to leave to federal administrators, in this case 

prison administrators.” Id.

The district court here likewise ruled:

The decisions relating to the selection and purchasing of furniture in a jail 

falls under the umbrella of discretionary acts as understood by the statute. Ada 

County would have had to weigh financial and security considerations as to the type 

of bed, the inclusion or exclusion of ladders, and the type of flooring in its jail. The 

first prong of the test is satisfied.

As to the second prong, this Court considers Ada County’s decisions 

relating to the selection and purchasing of beds for the jail as allowing for 

governance without undue inhibition from the threat of tort liability and to limit 

judicial intrusion into policy matters entrusted to other branches of government. 

The decisions made regarding bunkbed selection and purchase is a discretionary 

one. 

Williamson argues that despite Ada County’s contention that the installation of bunk beds 

is a planning activity that “required analysis of the financial, political, economic, and social effects 

of the policy decision,” Ada County failed to allege they used any process to determine what safety 

equipment should be installed or whether prisoner safety was a consideration in their selection of 

bunk beds. However, such a decision, by its nature, is “susceptible,” as defined by other courts, to 

a policy analysis. The focus is on “the nature of the actions taken and on whether they are 

susceptible to policy analysis.” GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 

2002) (quoting United States v. Gaubert, 499 U.S. 315, 325 (1991)). Importantly, the decision 

“‘need not actually be grounded in policy considerations’ so long as it is, ‘by its nature, susceptible 

to a policy analysis.’” Id. (quoting Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000) 

(emphasis in original); See also, e.g., Buckler v. United States, 919 F.3d 1038, 1045 (8th Cir. 2019) 

(“[A]s long as a discretionary decision is susceptible to policy analysis, the [discretionary function] 

exception applies whether or not [the] defendant in fact engaged in conscious policy-balancing.”)

(internal citations and quotation marks omitted); Jude v. Comm’r of Soc. Sec., 908 F.3d 152, 159 

(6th Cir. 2018) (“Such ‘social, economic, or political’ policy analysis need not have actually 

occurred in the disputed instance, but rather the decision need only have been theoretically 

susceptible to policy analysis.”); Seaside Farm, Inc. v. United States, 842 F.3d 853, 858 (4th Cir. 
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2016) (quoting Smith v. Washington Metro. Area Transit Auth., 290 F.3d 201, 208 (4th Cir. 2002)) 

(This is an objective rather than subjective standard, so courts “do not examine . . . ‘whether policy 

considerations were actually contemplated in making the decision.’ ”). We adopt this reasoning 

here.

Further, the determination that Ada County’s decision to use ladderless bunkbeds was 

discretionary is supported by other courts that have come to the same conclusion. See Preston v. 

United States, No. 1:08-CV-2493-CAM, 2010 WL 2975631, at *4 (N.D. Ga. July 27, 2010) (there 

are sound public policy reasons for not providing ladders on bunk beds in federal prisons, reasons 

grounded in prison and inmate safety); Jackson v. United States, No. 06-88 ERIE, 2007 WL 

2033902, at *9 (W.D. Pa. July 12, 2007) (the decision not to add ladders to bunk beds was due to 

prison and inmate safety, and that this was “precisely the type of policy decision that is protected 

by the discretionary function exception.”); Manning v. Flock, No. 1:11-CV-0293, 2012 WL 

1078227, at *16 (M.D. Pa. Mar. 30, 2012) (the decision whether to provide ladders for upper bunk

access involves policy choices). We affirm the district court’s determination that Ada County’s 

selection of bunk beds is the type of discretionary decision protected by the ITCA. 

B. We reverse the district court’s dismissal of Williamson’s claim that Ada County was 

negligent in ordering him to descend from the top bunk for roll call and remand the

case. 

Together with Williamson’s allegation that Ada County was negligent in failing to provide 

adequate safety equipment in its bunk beds, Williamson’s complaint alleged: “Defendants were 

also negligent in needlessly ordering Plaintiff to descend from the top of his bunk bed for roll call, 

when the purpose of the roll call did not require any such action.” On appeal, Williamson suggests 

the district court failed to rule on whether Ada County’s decision to order him to descend from the 

bed was a discretionary decision entitled to immunity under the ITCA. Ada County responds “[t]he 

[d]istrict [c]ourt . . . appropriately ruled that the decision on the jail roll call process is 

discretionary.”

In its decision the district court, under the subheading “Ada County was performing a 

discretionary function or duty when Mr. Williamson was injured,” found that Williamson

failed to demonstrate that the Ada County Sheriff’s employee’s decision to order 

him down from his bunk for roll call was malicious or had criminal intent. Based 

on the Complaint, roll call was occurring as to all inmates in the Ada County Jail. 

There is no indication that Mr. Williamson was being treated differently than any 

other inmate in the jail.
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Mr. Williamson failed to state a claim of negligence for which relief can be 

granted under the ITCA. His claim for negligence against Ada County is dismissed. 

Although the district court included no specific language that the jailer’s decision to order 

Williamson down from his bunk bed was discretionary, its discussion of that issue falls under the 

umbrella of its conclusion that “Ada County was performing a discretionary function or duty when 

Mr. Williamson was injured.” Even if we were to determine that this analysis is enough to

constitute a ruling on the issue, the district court failed to conduct the requisite two-step inquiry

for determining the applicability of the discretionary function exception to governmental liability. 

Dorea, 144 Idaho at 425, 163 P.3d at 214. 

Ada County attempts to defend the district court’s ultimate dismissal of the action by 

conducting its own two-prong analysis on appeal. Ada County asserts Williamson’s claim attacks 

a broader policy Ada County has which requires inmates to stand for roll call, and that policy meets 

the first prong of the discretionary decision analysis because it requires consideration of broad 

policy factors, including its political and social impacts. In determining roll call policies, Ada 

County contends it would have to consider the impacts of the policy, including prisoner safety and 

jail security: requiring prisoners to stand would, presumably, give deputies the benefit of seeing 

the prisoner in full to make sure that the prisoner is safe and present in the cell.

Ada County also argues it satisfies the second prong, which requires courts to examine the 

underlying policies of the discretionary function—to permit governance without undue inhibition 

from the threat of liability and to limit judicial examination of policy decisions entrusted to other 

government branches. (Citing Lamont Bair Enterprises, Inc. v. City of Idaho Falls, 165 Idaho 930, 

934, 454 P.3d 572, 576 (2019)). Ada County asserts that Idaho’s sheriffs have been entrusted by 

the Idaho Legislature to “[t]ake charge of and keep the county jail and the prisoners therein.” I.C. 

§ 31-2202(6). Ada County reasons the development of roll call policies is the type of decision 

entrusted to Ada County by the Idaho Legislature and they should be free to perform this 

responsibility without undue inhibition from the threat of liability and to limit judicial examination 

of their policy decisions. 

Ada County’s reasoning is not supported by the record. In particular, there is no evidence 

supporting Ada County’s position that there was a roll call policy in place. At the hearing on Ada 

County’s motion to dismiss, Williamson characterized the jailer’s decision to have him descend 

from his bunk bed for roll call as “a decision of the officer on duty that day” rather than a “policy”;
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thus, he argued it was not the kind of discretionary decision that would receive immunity under 

the ITCA. The district court responded:

To follow this a little bit, I can see the officers walking to that cell, giving the order 

for roll call. And it could be perhaps three situations. One, they say, “I have no 

choice. My boss has told me this. I’ve got to do this. We’ve got to do this. We’ve 

got to do roll call. You’ve got to get out of the bunk,” something like that. They 

don’t believe its discretionary going ahead, and they order it.

Second one they say it could go either way. I’m going to pick each day who 

I have roll call, who doesn’t. I’ll decide for some people – perhaps they’re old or 

perhaps they’re sick or perhaps I saw them five minutes ago – I’ll exercise my 

discretion.

The other one is there is no roll call at all. They just made it up and they just 

sort of caused it to happen. It’s a one-off, and there is no policy they have at all.

And there may be more versions of it . . . .

Ada County addressed the issue by arguing that “the choice whether to make inmates 

descend from the bunk” is discretionary, and that these (along with the choice of bedding) are 

“high-level decisions that would have to consider inmate safety above all else . . . Of course, when 

determining whether to do roll call, doing roll call is a safety consideration in and of itself.” Ada 

County emphasized that Williamson had not alleged that either officer was acting outside the scope 

of what their bosses told them to do; thus, “[w]e’re talking about the decision overall to make 

people stand and do roll call on a daily basis to make sure everybody is still doing okay . . . .” Later 

in the hearing, the following exchange took place concerning the two-prong analysis:

[COURT]: So that question, the decision, having to descend the bunkbed, you 

earlier said this is a discretionary decision, in the language of the [S]upreme 

[C]ourt. The decision to have him step down, that’s a routine operational matter or 

an actual discretionary plan or policy?

[ADA COUNTY]: Discretionary plan or policy, your Honor. And again, I think 

this comes down to the framing of the complaint is not saying that those two 

sheriff’s deputies took some particularly egregious action against this individual. It 

wasn’t, “I was only made to descend from my bunkbed.” It wasn’t, “I was the only 

one made to stand for roll call.”

The larger – the attack of it is the larger policy decision of making someone 

stand for roll call. It wasn’t anything in particular about those deputies’ actions. It 

was that the complaint seems to attack the policy as a whole.

Ada County continues this rhetoric on appeal, suggesting that 

nothing in Mr. Williamson’s Complaint proposes that the Ada County Jail deputies 

were violating policy in requiring Mr. Williamson to descend from his bunk bed 

for roll call or that they treated Mr. Williamson any differently than his fellow 
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prisoners. Instead, it appears that Mr. Williamson attacks the policy behind 

requiring him to stand for roll call. 

Ada County notes that because Williamson is suing the governmental entities instead of 

the individual deputies involved, he appears to be “attacking the greater policy decision-making 

behind bunk beds and roll call.” Williamson counters that there is simply no evidence of such a 

roll call policy in the record. 

Again, “[i]n suits brought under the Tort Claims Act, the ‘planning/operational’ test is used 

to demarcate decisions involving the formation of basic policy, entitled to immunity, from 

decisions involving the execution or implementation of that policy, not entitled to immunity.” 

Ransom, 113 Idaho at 204, 743 P.2d at 72. The district court’s own initial discussion on this issue 

highlights why Ada County’s motion to dismiss should have been denied on this claim. The court 

presented three viable options for what happened when Williamson was ordered to descend from 

the bunk bed, with at least one depicting the implementation of a policy rather than an attack on 

the policy itself, should one exist. Routine decisions not involving the consideration of policy 

factors are considered operational and are not entitled to immunity. On the other hand, decisions 

based on financial, political, economic, and social effects are considered discretionary, and are 

entitled to immunity. 

Because there are at least three plausible theories for the jailer’s decision to order 

Williamson to descend from his bunk bed for roll call at the time of his injury, the record is 

insufficient to conclude that the decision was a discretionary one. The decision could just as easily 

have been an operational decision by the jailer on duty that day. See Freeman v. Juker, 119 Idaho 

555, 808 P.2d 1300 (1991) (Even where it seemed “likely that a decision . . . was probably the 

result of a deliberate decision bound up with the formulation of policy and therefore immune from 

liability” absent a factual basis in the record, judgment on the pleadings was improper). Thus, we 

reverse the district court’s dismissal and remand the case on this issue.

Williamson also argues that because the district court found Williamson had not proven 

that Ada County’s employee acted with malice or criminal intent, Williamson’s claim was not 

subject to the indemnification provisions of Idaho Code section 6-903. Williamson contends that 

is significant because by finding that he had not proved Ada County’s employee acted with malice 

or criminal intent, the district court ensured that Ada County could not escape liability for the 
13

actions of their employee. Williamson misunderstands Idaho Code section 6-903 and this Court’s 

decision in Hoffer v. City of Boise, 151 Idaho 400, 257 P.3d 1226 (2011).

Idaho Code section 6-903(2)(i) provides for the indemnification of governmental 

employees “against any claims brought against the employee in the employee’s individual capacity 

when the claims are related to the course and scope of employment . . .” I.C. § 6-903(2)(i); 

however, the governmental entity may refuse to defend an employee if it is determined that the act 

or omission was not within the course and scope of employment or resulted from malice or criminal 

intent. Id. at (3). That said, there are no individual defendants here, thus the statute does not offer 

Williamson the relief he seeks. 

The relevant ITCA provision implicated here is Idaho Code section 6-904. This section 

grants a governmental entity and its employees immunity for any claim, while acting in the course 

and scope of their employment and without malice or criminal intent, which 

[a]rises out of any act or omission of an employee of the governmental entity 

exercising ordinary care, in reliance upon or the execution or performance of a 

statutory or regulatory function, whether or not the statute or regulation be valid, or 

based upon the exercise or performance or the failure to exercise or perform a 

discretionary function or duty on the part of a governmental entity or employee 

thereof, whether or not the discretion be abused.

I.C. § 6-904(1).

In Hoffer v. City of Boise, the owner of a trailer park sued the city asserting claims of 

tortious interference with contract and defamation, among other claims, after the city (1) issued 

notices to the owner requiring electrical improvements to the park, and (2) posted notices around 

the park when the owner failed the make the improvements. 151 Idaho at 401, 257 P.3d at 1227. 

Hoffer additionally alleged that the city, through its agents or employees, made false statements to 

a newspaper regarding Hoffer’s compliance with the city requirements. Id. The city filed a motion 

to dismiss, arguing that because Hoffer had not alleged the city employees acted with malice and/or 

criminal intent, the city was immune from liability. Id. The district court granted the city’s motion. 

Id. This Court affirmed the district court’s dismissal of Hoffer’s claims after concluding Idaho 

Code section 6-904(3) exempts governmental entities from liability for the torts at issue. Id. at 402, 

257 P.3d at 1228. 

In reaching this conclusion, the Court distinguished between tort liability for governmental 

entities versus potential liability of their employees, recognizing: “The plain language of the first 

clause of that section exempts governmental entities from liability for the torts it lists, whether or 
14

not there has been an allegation of malice or criminal intent.” 151 Idaho at 402, 257 P.3d at 1228

(internal citation omitted). 3 The Court explained:

The requirement that an employee have acted “within the course and scope of their 

employment” plainly applies to the act of the employee and not of the governmental 

entity. Therefore, the language “and without malice or criminal intent” that follows 

the statute’s requirement that the employee have acted within the course and scope 

of employment, also by its plain language only applies to the employee. 

Id. at 402–03, 257 P.3d at 1228–29.

Thus, based on this Court’s decision in Hoffer, whether Williamson pled malice or criminal 

intent is irrelevant to the determination of whether Ada County and the Ada County Sheriff, both 

of which are governmental entities, are immune from liability for discretionary decisions under 

Idaho Code section 6-904(1). Even so, we reverse the district court’s decision on this issue and 

remand Williamson’s claim that Ada County was negligent in ordering him to descend from the 

top bunk for roll call. Whether that order was based on a policy is unknown based on this record, 

and will be subject to further consideration on remand.

C. We affirm the district court’s holding that Ada County was immune from liability

arising from Williamson’s claim he received improper medical treatment at the jail. 

The district court concluded Ada County is exempt from liability for Williamson’s claims 

arising from his medical treatment under the ITCA, which provides:

A governmental entity and its employees while acting within the course and scope 

of their employment and without malice or criminal intent and without gross 

negligence or reckless, willful and wanton conduct as defined in section 6-904C, 

Idaho Code, shall not be liable for any claim which:

5. Arises out of any act or omission providing or failing to provide medical 

care to a prisoner or person in the custody of any city, county or state jail, 

detention center or correctional facility.

I.C. § 6-904B(5). “Gross negligence” is defined as “the doing or failing to do an act which a 

reasonable person in a similar situation and of similar responsibility would, with a minimum of 

 

3 Williamson makes several references to Chief Judge Lansing’s special concurrence, attributing the concurrence to

Hoffer v. City of Boise, 151 Idaho 400, 257 P.3d 1226 (2011), in both his opening and reply briefs. Importantly, Chief 

Judge Lansing’s concurrence appears in an unpublished opinion from the Court of Appeals, not this Court. See 2010 

WL 9585780, 2. The unpublished decision was superseded by this Court’s opinion issued after a petition for review. 

Moreover, although Chief Judge Lansing believed the Court’s decision in Sprague v. City of Burley, 109 Idaho 656, 

710 P.2d 566 (1985) misinterpreted section 6-903(c), this Court specifically rejected the request to overrule it. Hoffer, 

at 403 n.1, 257 P.3d at 1229 n.1. Thus, Williamson cannot rely on the concurring opinion in a superseded decision as 

authoritative, and the misstatements and repeated citations to it border on sanctionable conduct under I.A.R. 11.2(a).
15

contemplation, be inescapably drawn to recognize his or her duty to do or not do such act and that 

failing that duty shows deliberate indifference to the harmful consequences to others.” I.C. § 6–

904C(1). “Reckless, willful and wanton conduct” is defined as “present only when a person 

intentionally or knowingly does or fails to do an act creating an unreasonable risk of harm to 

another, and which involves a high degree of probability that such harm will result.” I.C. § 

904C(2).

In his complaint, Williamson alleged the Defendants’ “negligence in failing to diagnose, 

treat properly or bring Defendant’s [sic] injuries to a physician resulted in a worsening of 

Plaintiff’s injuries and future health outcomes[.]” Williamson also alleged:

The conduct of Defendants, alleged herein, was done maliciously, intentionally and 

willfully, with gross negligence and reckless disregard for, and in extreme deviation 

of all appropriate and reasonable standards of care pertaining to the facts of this 

case. Mr. Williamson believes that the Defendants deliberately understated his 

symptoms and misdiagnosed him, and intentionally kept him from being examined 

[by] a doctor for the injuries sustained while in custody of the Defendant, Ada 

County.

Williamson argues that the factual allegations in his complaint support a finding of Ada 

County’s egregious behavior. Despite several requests for treatment and complaints of painful 

symptoms, the loud crack of his skull against the concrete, and the obvious blood loss, the 

custodians at the Ada County jail, including medical providers, sought to shut down his complaints 

by promising him that he would be treated later, only to fail to provide even that promised 

treatment. Williamson asserts that Ada County lied to him about arranging his treatment, despite 

the duty of care they owed him as his custodians, constituting malice and criminal intent. 

The district court dismissed Williamson’s claim after concluding his allegations were 

grounded in torts for which Ada County was exempt from liability, i.e., the medical care provided 

to a prisoner or person in custody in jail. Ada County argues that, similar to discretionary 

immunity, governmental entities are immune from the torts listed in Idaho Code section 6-904B 

whether a plaintiff has alleged any harmful intent or not. Ada County emphasizes that the opening 

clause of Idaho Code section 6-904B parallels section 6-904, providing “[a] governmental entity 

and its employees while acting within the course and scope of their employment and without 

malice or criminal intent and without gross negligence or reckless, willful and wanton conduct.” 

Applying the Court’s logic in Hoffer, the language “without malice or criminal intent and 

without gross negligence or reckless, willful and wanton conduct,” applies only to the employee, 
16

not the governmental entity. See Hoffer, 151 Idaho at 402–03, 257 P.3d at 1228–29 (the language 

“and without malice or criminal intent” that follows the statute’s requirement that the employee 

have acted within the course and scope of employment, also by its plain language only applies to 

the employee). Because the employees Williamson tried to sue—the RN and LPN—have been 

dismissed from the case, all that remain are the governmental entities. Ultimately, Ada County is

not “liable for any claim which . . . [a]rises out of any act or omission providing or failing to 

provide medical care to a prisoner or person in the custody of any city, county or state jail, 

detention center or correctional facility.” I.C. § 6-904B(5). Thus, we affirm the district court’s 

conclusion in that regard. Once Williamson indicated he was no longer pursuing the RN and the 

LPN, his claim against Ada County ceased to exist. 

D. We affirm the district court’s dismissal of Williamson’s negligent infliction of 

emotional distress claims.

Next, Williamson alleges that the district court erred in dismissing his negligent infliction 

of emotional distress claims. “The elements of negligent infliction of emotional distress are (1) a 

legal duty recognized by law; (2) a breach of that duty; (3) a causal connection between the 

defendant’s conduct and the plaintiff’s injury; and (4) actual loss or damage.” Frogley v. Meridian 

Joint Sch. Dist. No. 2, 155 Idaho 558, 569, 314 P.3d 613, 624 (2013) (citing Nation v. State Dept. 

of Corr., 144 Idaho 177, 189, 158 P.3d 953, 965 (2007)). “Additionally, there must be a physical 

manifestation of the plaintiff’s emotional injury, which is designed to provide a degree of 

genuineness that claims of mental harm are not imagined.” Id. (quoting Czaplicki v. Gooding Joint 

Sch. Dist. No. 231, 116 Idaho 326, 332, 775 P.2d 640, 646 (1989)).

In his complaint, Williamson alleged that Ada County owed him a legal duty to “act as a 

steward and a fiduciary . . . as he was in their custody and unable to exercise freedoms in choosing 

his bedding and choosing his health care provider[,] engage in professional medical care . . . [,] 

and exercise ordinary care to prevent unreasonable, foreseeable risk of harm.” He alleged breach 

of those duties when Ada County “used substandard, knowingly dangerous bedding without proper 

safety features” and by “failing to properly diagnose [Williamson], follow a treatment plan, or 

schedule an appointment with a doctor.”

The district court dismissed Williamson’s negligent infliction of emotional distress claims

after concluding “both of Mr. Williamson’s allegations of negligent infliction of emotional distress 

claims are grounded in torts for which Ada County is exempt from liability . . . . Without a legal 
17

duty recognized by law, there can be no breach of such duty.” Because we have affirmed the 

district court’s dismissal on each claim Williamson linked to his negligent infliction of emotional 

distress claims—Ada County’s discretionary act of choosing beds for the jail and immunity arising 

from medical care provided to a person in custody—we likewise affirm the district court’s 

dismissal of Williamson’s negligent infliction of emotional distress claims.

E. Williamson did not preserve his Eighth Amendment claim for appeal. 

Last, Williamson contends that the immunity in Idaho Code section 6-904B, exempting 

Idaho governmental agencies from liability for failure to provide medical care to inmates in Idaho 

jails, is overly broad and should be found unconstitutional because it is preempted by the Eighth 

Amendment’s prohibition against deliberate indifference. Ada County argues that Williamson’s 

constitutional claim must fail because he did not raise this issue below. In general, constitutional 

issues will not be considered if raised for the first time on appeal. State v. Barr, 166 Idaho 783, 

787, 463 P.3d 1286, 1290 (2020) (citing Roell v. Boise City, 134 Idaho 214, 216, 999 P.2d 251, 

253 (2000)). “Failure to properly raise such an issue below is a waiver of the right to raise the issue 

on appeal.” Id. 

In response to Ada County’s argument, Williamson “simply points to the record” and 

asserts that he raised the issue at the hearing on Ada County’s motion to dismiss. At the hearing 

on Ada County’s motion to dismiss, the district court—not Williamson—raised a question

concerning the Eighth Amendment’s applicability:

[COURT]: Okay. My second question is have you brought an Eighth Amendment 

claim for violation of [Williamson’s] Eighth Amendment rights?

[DEFENSE COUNSEL]: Your Honor, I believe that the claims that we brought 

were for negligence in providing for Mr. Williamson’s safety and for his medical 

care while he was in the custody of the State. 

Whether that expands to the Eighth Amendment or whether the Eighth 

Amendment accrues to an individual once they are within the state system, I 

believe, is – I believe that we would have an Eighth Amendment claim in this case 

as Mr. Williamson was detained and had been in custody at the time of these events.

[COURT]: So my question was as to whether you had brought one and you believe 

there would be one. 

My question is, is one of these three counts currently your Eighth 

Amendment claim? Or one or more of them? Or is it something you say you may 

bring in the future?

[DEFENSE COUNSEL]: Your Honor, I believe it said it specifically is a claim we 

could bring in the future.
18

[COURT]: Could bring in the future?

[DEFENSE COUNSEL]: Yes, [Y]our Honor.

Later, the district court noted, “I’m not here to say whether Mr. Williamson has an Eighth 

Amendment right attached or whether you brought it. I’m just focusing on the question, whether 

it’s a defense for dismissal under the statute.”

While Williamson asserts that he is not making an Eighth Amendment claim for the first 

time on appeal, the district court specifically noted that “Mr. Williamson has not argued that the 

statute is unconstitutional, either facially or as applied to him.” The record fully supports the 

district court’s conclusion. Therefore, based on this holding, and the record before us on appeal, 

we hold that Williamson failed to preserve his constitutional claim for review. 

F. We decline to award attorney fees on appeal.

Ada County requests attorney fees under Idaho Code section 12-121. Ada County claims 

that on appeal, Williamson reargues the same issues he argued to the district court, in addition to 

new issues which cannot be heard on appeal. Ada County claims Williamson did not present any 

new evidence or authority showing that the district court erred in dismissing the case, rather, he 

appears to be inviting the Court to second guess the district court’s findings. Thus, Ada County 

argues Williamson’s appeal was pursued frivolously, unreasonably, and without foundation. 

Idaho Code section 12-121 allows the award of reasonable attorney fees to the prevailing 

party in any civil action where the case “was brought, pursued or defended frivolously, 

unreasonably or without foundation.” I.C. § 12-121. The prevailing party may also be entitled to 

fees if the appeal merely invites the Court to second-guess the findings of the lower court. Owen 

v. Smith, 168 Idaho 633, 647, 485 P.3d 129, 143 (2021) (citing Bach v. Bagley, 148 Idaho 784, 

797, 229 P.3d 1146, 1159 (2010)). Ada County has only prevailed in part; thus, it is not entitled to 

attorney fees under section 12-121. 

G. We decline to award sanctions.

Williamson argues that at several points in their brief the Ada County Defendants misstated 

the record, placing themselves in jeopardy of sanctions. Idaho Appellate Rule 11.2 provides:

(a) . . . The signature of an attorney or party constitutes a certificate that the attorney 

or party has read the notice of appeal, petition, motion, brief or other document; 

that to the best of the signer’s knowledge, information, and belief after reasonable 

inquiry it is well grounded in fact and is warranted by existing law or a good faith 

argument for the extension, modification, or reversal of existing law, and that it is 

not interposed for any improper purpose, such as to harass or to cause unnecessary 
19

delay or needless increase in the cost of litigation. If the notice of appeal, petition, 

motion, brief, or other document is signed in violation of this rule, the court, upon 

motion or upon its own initiative, shall impose upon the person who signed it, a 

represented party, or both, an appropriate sanction, which may include an order to 

pay to the other party or parties the amount of the reasonable expenses incurred 

because of the filing of the notice of appeal, petition, motion, brief or other 

document including a reasonable attorney’s fee.

“Rule 11 Sanctions are appropriate where an argument on appeal ‘was so far outside the 

realm of reasonability that it warrants a sanction.’ ” Bettwieser v. New York Irrigation Dist., 154 

Idaho 317, 330, 297 P.3d 1134, 1147 (2013) (quoting Martin v. Smith, 154 Idaho 161, 164, 296 

P.3d 367, 370 (2013)). “However, even where the issues raised on appeal are ‘dubious,’ fees will 

not be awarded under Rule 11.2 unless the Court can conclude that ‘the appeal was interposed for 

an improper purpose.’ ” Id. (quoting Funes v. Aardema Dairy, 150 Idaho 7, 13, 244 P.3d 151, 157 

(2010)).

Most of the case law discussing Rule 11.2 focuses on whether an appellant has filed an 

appeal with an improper purpose. Even so, Williamson contends sanctions are appropriate because

Ada County expressly makes contentions that are not grounded in fact and have no basis in law.

Williamson first challenges Ada County’s statement that the district court ruled that the order that 

Williamson descend from his bed and stand during roll call was discretionary. (Emphasis added).

Ada County counters that the district court did, in fact, rule on the issue. 

As discussed above in Section B, under the subheading “Ada County was performing a 

discretionary function or duty when Mr. Williamson was injured,” the district court held that

Williamson

failed to demonstrate that the Ada County Sheriff’s employee’s decision to order 

him down from his bunk for roll call was malicious or had criminal intent. Based 

on the Complaint, roll call was occurring as to all inmates in the Ada County Jail. 

There is no indication that Mr. Williamson was being treated differently than any 

other inmate in the jail.

Even though we determined the district court did not rule on whether Ada County’s order 

that Williamson stand for roll call was discretionary, Ada County’s position that the district court 

did rule is at least a plausible argument given the district court’s ultimate dismissal of the case. As

a result, it cannot be considered “so far outside the realm of reasonability that it warrants a 

sanction.” Bettwieser, 154 Idaho at 330, 297 P.3d at 1147. Thus, we decline to award sanctions on 

this basis. 
20

Second, Williamson objects to Ada County’s repeated reference to a “policy” regarding

roll call despite the failure to include any such policy in the record. Ada County explains that it

did not refer to a “roll call policy” because the record contained a specific policy; rather, the 

reference speaks to Williamson’s general attack on the overarching policy behind requiring 

prisoners to stand during roll call. As explained above, we are remanding the case on this issue. 

Still, Ada County’s position that Williamson is attacking a broader policy requiring inmates to 

descend from their bunk beds, even if not supported by a written policy in the record, is not “so 

far outside the realm of reasonability that it warrants a sanction.” Bettwieser, 154 Idaho at 330, 

297 P.3d at 1147. Thus, we decline to award sanctions on this basis.

V. CONCLUSION

We reverse the district court’s decision to dismiss Williamson’s claim that Ada County 

was negligent in ordering him to descend from the top bunk for roll call and remand the case for 

further proceedings. We therefore vacate the judgment in that regard. We affirm the district court’s 

dismissal of Williamson’s remaining claims. Inasmuch as both parties prevailed, in part, no 

attorney fees or costs are awarded on appeal. 

Justices BRODY, STEGNER, MOELLER, and ZAHN, CONCUR.