SHEPARD, Justice, dissenting.

Today the majority opinion takes this Court another gigantic step down a road leading to a morass of uncertainty and confusion, and ultimately to an upheaval of established law in the relationship between units of government and their peoples. Is a unit of government which provides services to be an ultimate insurer against all risk that may be encountered by a member of society? Today's case is cast in terms of a loss by fire and allegations that a municipal government failed to maintain an water supply to guard against that danger of fire. Tomorrow's possible claims are endless and only limited by the ingenuity and imagination of counsel. Inadequate police protection against negligent or drunken drivers; negligent maintenance of traffic control signals; negligent police protection against the risk of burglars, robbers, murderers or rapists; negligent supervision of businesses such as insurance, real estate, pharmacies, financial marketing and markets, the practice of law and the practice of medicine, transportation and all of its ramifications — the horizons are unlimited for governmental liability to its citizens for almost any activity in which government may engage in efforts to better the living conditions of its people.

Since 1970 and the decision of Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), this Court has been engaged in an almost continual expansion of the liability of governmental entities under the aegis of responsibility for the "torts" of governmental servants and agents. Governmental liability has been imposed for damages resulting from negligent road maintenance and negligent road design. See Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983); McClure v. Nampa Highway District, 102 Idaho 197, 628 P.2d 228 (1981). Liability was asserted but denied in the case of alleged negligent inspection of mines, Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21, 1979), and alleged negligent fire protection, Chandler Supply Company, Inc. v. City of Boise, 104 Idaho 480, 660 P.2d 1323 (1983). Actions against governmental entities by reason of the actions of law enforcement officers have variously been upheld or denied. This Court recently has upheld a cause of action against the State resulting from the inadequate supervision of a parolee. Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986). The Court also recently has upheld a cause of action against a school district for the actions of a teacher in sexually molesting young children in school. The Court has pending, cases involving alleged negligent brand inspection by the State, negligent enforcement of building codes by a municipality, and the alleged negligent maintenance of playground equipment in a municipal park. There would appear no end or limit to the liability potential of governmental entities.

I deem it necessary to pause in our journey down this road and reflect as to where we have been and where we are going.

The origins of sovereign immunity have been documented elsewhere. It is sufficient here to say that while tortious acts by a private individual or entity might result in liability, actions based on the same tortious conduct by the agents or servants of either the federal or a state government were not long ago barred by the concept of sovereign immunity. In the case of the federal government, for over 85 years there had been a steady encroachment by Congress on the doctrine of sovereign immunity which culminated in enactment of the Federal Tort Claims Act in 1946. Title IV of the Legislative Reorganization Act of 1946 ( 28 U.S.C.A. §§ 1346 to 2671 et seq.). Since that date the only significant amendatory language was added in 1974 in the aftermath of Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), to permit actions under the FTCA for a narrow range of intentional torts.

The states, either by court decision or statutory enactment, somewhat later came to the waiver of otherwise sovereign immunity. Indicative of the change of philosophy within the states is the language of Roger Traynor writing for the California court in Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 71 Cal.Rptr. 89, 359 P.2d 457 (1961):

The rule of governmental immunity for torts is an anachronism, without rational basis, and has existed only by the force of inertia. . . .

None of the reasons for its continuance can withstand analysis. No one defends total governmental immunity. In fact, it does not exist. It has become riddled with exceptions, both legislative and judicial and the exception operates so illogically as to cause serious inequality.

Only the vestigial remains of such government immunity have survived; its requiem has long been foreshadowed. For years the progress of erosion of governmental immunity has gone on unabated. The legislature has contributed mightily to that erosion. The courts by distinction and extention, have removed much of the force of the rule. Thus in holding that the doctrine of governmental immunity for torts for which its agents are liable has no place in our law we make no startling break with the past but merely take the final step that carries to its conclusion an established legislative and judicial trend.

Traynor, however, was not without qualification in taking that final step since he said:

Abrogation of governmental immunity does not mean that the state is liable for all harms that result from its activities. Both the state and individuals are free to engage in many activities that result in harm to others so long as such activities are not tortious. . . . Although it "is not a tort for government to govern" and basic policy decisions of government within constitutional limitations are therefore necessarily nontortious, it does not follow that the state is immune from liability for the torts of its agents. These considerations are relevant to the question in any given case the state through its agents has committed a tort. . . . Nor does our decision herein affect the subtle rules of immunity of government officials for acts within the scope of their authority.

Most other states, either judicially or legislatively, have followed that lead. Idaho, following the decision of Smith v. State, legislatively abolished sovereign immunity. Idaho, like most jurisdictions that have acted legislatively, did so in language substantially tracking that of the Federal Torts Claims Act. Thus, the problems of statutory interpretation which had been plaguing the federal courts, also came to puzzle and confound the state courts. I hold to the view that when Congress enacted the FTCA it had no intent to create new causes of action, but rather intended only to remove the bar to liability when government agents or servants engaged in activity which would be delineated as tortious if the actor were a private individual.

As the Supreme Court said earlier in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950):

The Tort Claims Act was not an isolated and spontaneous flash of congressional generosity. It marks the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit. . . . The primary purpose of the Act was to extend a remedy to those who had been without; . . . for the purpose, the Act goes on to prescribe the test of allowable claims, which is, "the United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances. . . ." It will be seen that this is not the creation of new causes of action but acceptance of liability under circumstances that would bring private liability into existence.

Thus, I posit that under the FTCA one must examine the actions complained of by the government agent or servant to determine if that conduct was tortious; i.e., was a dangerous product manufactured which damaged the plaintiff; was a fire negligently permitted on government premises which spread to and damaged the premises of a plaintiff; was a plaintiff invitee damaged through the negligent maintenance of government premises; was a plaintiff pedestrian damaged by the negligent operation of a government vehicle.

There are indeed a host of situations wherein the actions of government servants and employees are tortious and should result in governmental liability. As the dissent observed in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953):

We who would hold the government liable here cannot avoid consideration of the basic criteria by which courts determine liability in the conditions of modern life. This is a day of synthetic living, when to an ever increasing extent our population is dependent upon mass producers for its food and drink, its cures and complexions, its apparel and gadgets. These no longer are as natural or simple products but complex ones whose composition and qualities are often secret. Such a dependent society must exact greater care than in more simple days and must require from manufacturers or producers increased integrity and caution as the only protection of its safety and well being. Purchasers cannot try out drugs to determine whether they kill or cure. Consumers cannot test the youngster's cowboy suit or the wife's sweater to see if they are apt to burst into fatal flames. Carriers, by land or sea, cannot be experimenting with the combustibility of goods in transit. Where experiment or research is necessary to determine the presence or the degree of danger, the product must not be tried out on the public, nor must the public be expected to possess the facilities or the technical knowledge to learn for itself of inherent but latent dangers. The claim that a hazard was not foreseen is not available to one who did not use foresight appropriate to his enterprise. Forward looking courts, slowly but steadily, have been adapting laws of negligence to these conditions. . . . but many acts of government officials deal only with the housekeeping side of the federal activities. The government, as land owner, as manufacturer, as shipper, as warehouseman, as ship owner, and operator, is carrying on activities indistinguishable from those performed by private persons. In this area, there is no good reason to stretch the legislative text to immunize the government or its officers from responsibility for their acts, if done without appropriate care for the safety of others. Many official decisions even in this area may involve a nice balancing of various considerations. But this is the same kind of balancing which citizens do at their peril and we think it is not within the exception to the statute.

In my view the same theories can be ascribed to the intention of our legislature in enacting our state Tort Claims Act. There is nothing in the text of the Act itself, nor in any of its sparse legislative history, which should lead to a conclusion that the legislature intended to create new causes of action wherein government entities in Idaho should be held liable for the less than perfect performance of services it renders to its citizens. Most simply put, in the words of Jackson, J., in Dalehite, and reiterated by Traynor, it is not a tort for the government to govern.

As noted supra, the language of the Federal Tort Claims Act has unfortunately served as a model for state legislatures. It is argued, therefore, that the interpretation of the federal courts should be viewed as controlling in our interpretation of our state Act, and that it should be assumed that our legislature was aware of those interpretations of the federal Act and intended to incorporate them into our state Act. There is respectable authority for those assertions, and in the ordinary case I might agree. However, as will be demonstrated, to apply such "reasoning" in the instant case is absurd, if not ludicrous.

As noted above, the Supreme Court in Feres indicated that the Congress did not intend to create a new cause of action with the Federal Tort Claims Act, but merely intended to remove the bar of sovereign immunity to claims otherwise cognizable for the tortious acts of government agents and servants. Dalehite is the seminal case of interpretation of the Federal Tort Claims Act, and it has been most recently reaffirmed by the Supreme Court in United States v. Varig Airlines, 692 F.2d 1205 (9th Cir. 1982), rev., 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

In Dalehite, it was clear that agents and servants of the federal government had been guilty of culpable negligence and had committed tortious acts for which only the doctrine of sovereign immunity would have precluded liability on the part of the government. The trial court had clearly found "negligence" and tortious behavior in that a product which was supposedly fertilizer, was in actuality a high explosive, was negligently produced, packaged, labeled, and shipped. Not surprisingly, when ships in Texas City were being loaded with the "fertilizer," fire broke out resulting in an explosion which killed 560 people and injured 3,000 more. The entire port area was essentially vaporized.

The decision of the Supreme Court was 4-3 with two justices not sitting. The Court seems to have assumed that the acts of the various governmental agencies were indeed tortious. As described by the dissent:

This was a man-made disaster; it was in no sense an "act of God." The fertilizer had been manufactured in government-owned plants at the government's order and to its specifications. It was being shipped at its direction as part of its program of foreign aid. The disaster was caused by forces set in motion by the government, completely controlled or controlable by it. Its causative factors were far beyond the knowledge or control of the victims; they were not only incapable of contributing to it, but could not even take shelter or flight from it. The fertilizer, ammonium nitrate had been long used as a component in explosives and was manufactured in plants formerly used for the manufacture of explosives for the Army and consultation was sent from "such experienced commercial producers of high explosives as the DuPonts and the Atlas and the Herculeus powder concerns."

Thus, the Court had no real need to analyze whether or not the behavior and acts were tortious. Rather, assuming that the acts were tortious the Court then went on to examine, albeit the acts were tortious, whether the government was nevertheless exempt from liability under the specific provisions of the FTCA. The majority held that the specific acts of negligence, "were all reasonably made at a planning rather than an operational level and involved considerations more or less important to the practicability of the government's fertilizer program." For example, as to the bagging temperature it was held, "[i]t would be possible to keep the product in the graining kettles for a longer period or to install cooling equipment. But both methods would result in greatly increased production costs and/or greatly reduced production." Such seems to be a bizarre approach since certainly such excuses would not be heard or tolerated from private producers. As noted by the dissent:

If decisions are being made at cabinet levels as to the temperature of bagging the explosive fertilizers, whether paper is suitable for bagging hot fertilizer, and how bags should be labeled, perhaps an increased sense of caution and responsibility even at that height would be wholesome. . . . The government's negligence here was not in policy decisions of a regulatory or governmental nature, but involved actions akin to those of a private manufacturer, contractor, or shipper. (emphasis supplied)

In my view the majority decision of the Court in Dalehite was blatantly erroneous and was only further compounded when the Court undertook to attempt its definition of the discretionary act exemption in the FTCA as being the difference between a planning and operational dichotomy. In my judgment the decision of the Court was bottomed on a reluctance to face up to the enormity of the disaster and the enormity of governmental liability for its acts.

A short two years later the case of Indian Towing v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) came before the Court. The circuit court had held that the claim for a barge running aground because of an inoperative lighthouse was governed by the Feres and Dalehite decisions, and hence did not fall within the purview of the Federal Tort Claims Act. The Court splitting 4-4, the decision of the court of appeals was affirmed. On rehearing the Court, with its full compliment, split 5-4 in holding liability. The government had conceded that the discretionary function provision of the FTCA was not involved, but rather argued that since private persons did not and could not perform the activities at issue that there was no liability. The Court quickly hurdled the question of whether the acts of the government's servants were "tortious" by setting up and then destroying a straw man, i.e., the governmental-proprietary distinction in the field of municipalities. The Court merely backhanded Dalehite and Feres saying, "neither case is applicable" and "the differences between this case and Dalehite need not be labored. The governing factors in Dalehite sufficiently emerge from the opinion in that case." The opinion of the Court is perfunctory and it is significant that not a single scrap of authority was cited indicating that when a governmental entity performed services for its people, a good samaritan type of liability was to be imposed.

The dissenters pointed out that there could hardly be any parallel private liability since lighthouse keeping was prohibited to anyone but government. The dissenters stated: "In dealing with this enlarged concept of federal liability for torts, wisdom should dictate a cautious approach along the lines of Feres and Dalehite." In 1957 the Court had for consideration Rayonier v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354, in which the Ninth Circuit had denied liability on the basis of Dalehite and Feres for a claim involving government agents failing to act with due care in the starting of a fire on federal forest lands which spread to private lands. In Rayonier, the Court only considered whether the government should be liable for the negligence of its agents acting in the "uniquely governmental" capacity of public firearm. The Court held that it was ruling only on that portion of the FTCA requiring government liability only if a private individual would be liable under like circumstances. The Court stated:

In view of the circumstances, we think it proper to vacate both judgments in their entirety so that the district court may consider the complaints anew, in their present form or as they may be amended wholly free to determine their sufficiency on the basis of whether the allegations and any supporting material offered to explain or clarify them would be sufficient to impose liability on a private person under the laws of the state of Washington.

In my view the circumstances demonstrated the commission of a tortious act for which liability would be held absent the interposition of sovereign immunity.

The Court did not again speak significantly on the FTCA and governmental liability thereunder until 1984. During that time lapse the lower federal courts were equally divergent in their understanding of the FTCA, the discretionary act exemption, and the private parallel analyses. It is my view that Dalehite was wrongly decided and contained much obfuscation and confusion. It is further my view that such confusion continued in decisions of the lower federal courts. For example, compare Smith v. United States, 375 F.2d 243 (5th Cir.) cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967) (liability was denied for the failure to protect a federal juror), and Martin v. United States, 546 F.2d 1355 (9th Cir. 1976) (denying liability for the death of a camper by a grizzly bear attack in Yellowstone National Park), with Downs v. United States, 522 F.2d 990 (6th Cir. 1975) (liability was allowed for the actions of FBI agents during an aircraft hijacking when the hijacker killed two occupants of the plane and then himself when the FBI prevented the plane from leaving the ground).

In Graffin v. United States, 500 F.2d 1059 (3rd Cir. 1974) (court affirmed liability to a woman who became a quadraplegic by reason of ingesting live virus polio vaccine. The decision to release the vaccine, albeit it exceeded the permissible levels of neurovirulence, was made on the theory of "biological variation.") Griffin should be compared with First National Bank of Albuquerque v. United States, 552 F.2d 370 (10th Cir.) cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977), wherein plaintiff had relied heavily upon Griffin. First National Bank involved the alleged inadequate testing of a fungicide which later found its way into the food chain, with four children of one family eating pork which had been fed grain treated with mercury fungicide.

In Jayvee Brand, Inc. v. United States, 721 F.2d 385 (D.C. Cir. 1983), manufacturers of children's garments had been required by the Secretary of Commerce to treat the garments with a flame-retardant compound which was later determined by the government to be a carcinogen. The manufacturer was required to repurchase the treated clothing. Governmental liability was denied on the basis that the private parallel was lacking, and stated: "Furthermore, as the Supreme Court has observed, the entire thrust of the FTCA is in a different direction from that appellants would have us give it: `uppermost in the collective mind in Congress were the ordinary common law torts.'" The concurring opinion stated:

Where the wrongful conduct falls within one of the "ordinary common law torts" (e.g. negligent auto accidents) that motivated the passage of the FTCA that showing is amply made by the legislative history of the act. But where the tort theory is novel and the legislative history is silent, courts have looked beyond the act itself for evidence of congressional intent, considering among other things how extending tort liability in a particular case would fit into the entire statutory scheme of remedies against the government to make a workable consistent and equitable whole. . . . When the evidence strongly suggests no waiver was intended, courts have not hesitated to so find, notwithstanding the inability to fit the case within any express exception.

In Warren v. District of Columbia, 444 A.2d 1 (D.C.Ct.App. 1981), a claim was made for the actions of police in failing to respond to emergency calls, and during the next 14 hours the women were held captive, raped, beaten, robbed, and forced to submit to sexual demands. The court denied liability holding:

Plaintiffs in this action would have the court and a jury of 12 additional community representatives join in the responsibility of judging the adequacy of a public employee's performance in office. . . . Should a court also be empowered to evaluate contact, in the context of a tort action, the handling of a major fire and determine whether the hoses were properly placed and the firemen correctly allocated. Might a court also properly entertain a tort claim over a school teacher's ability to teach seventh grade English or over a postman;s failure to deliver promptly an important piece of mail. . . . An enormous amount of public time and money would be consumed in litigation of private claims rather than in bettering the inadequate service which draws the complaints. . . . Although recognizing the obligation of public employees to perform their duties fully and adequately, the law properly does not permit that obligation to be enforced in a private suit for money damages.

This Court is thus asked to rely upon interpretations of the federal courts since our legislators must have done so in the enactment of the state Tort Claims Act. We are faced with three decisions of the United States Court, Dalehite, Indian Towing, and Rayonier. In my view the Court in Dalehite grievously erred. A rather obvious tortious act had been committed by governmental agents or servants for which recovery should have been allowed. The Court, for whatever reason, wallowed in the discussion of the discretionary act exemption and its planning-operational dichotomy in its effort to find a rationale for denial of liability. In Indian Towing the Court neglected to examine the first step of analysis, i.e., whether the acts complained of constituted a tort, and although its result involved an overruling of Dalehite, it refused to do so. Rayonier also involved the commission of a tortious act, i.e., allowing a negligently started and controlled fire to damage another's premises Fortunately the Court reached a correct result.

In my mind the decisions and rationales of the lower federal courts reflect the confusion resulting from the trilogy of the Supreme Court cases. It is against this crazy-quilt backdrop that we are asked to assume that our legislators could draw intelligence and reason in the formulation of our state Tort Claims Act. I view such a suggestion to be ludicrous.

I view the decisions of the various state jurisdictions to be a further indication that they, like us, are groping, grasping, and desperately attempting to make sense of nonsense.

After many years of silence the Supreme Court again spoke as to the interpretation of the FTCA and which of its previous decisions were surviving. Incredibly the opinion was issued for a unanimous Court. The Court stated that while it was argued that Dalehite had been overruled by Indian Towing Company, "while the Court's reading of the act admittedly has not followed a straight line, we do not accept the supposition that Dalehite no longer represents a valid interpretation of the discretionary function exception." The Court, as in other cases, did not question whether the circumstances disclosed a "tortious" act, but rather evidently assumed the existence of such an act and led to a consideration whether nevertheless liability of the federal government was barred because of the discretionary function exception.

In Varig it was claimed that a federal agency had been negligent in certificating aircraft for air worthiness which had led to crashes of aircraft. The Ninth Circuit had held that the "good samaritan rule" formed a basis for the claim under the FTCA and that the discretionary function exception to the Act did not bar the claim.

The Court refused to depart from the Dalehite decision stating: "White the Court's reading of the Act admittedly has not followed a straight line, we do not accept the supposition that Dalehite no longer represents a valid interpretation of the discretionary function exception." The Court seems to have bottomed its decision on the circumstance that the activities of the government were "regulatory" in nature:

Whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the government acting in its role as a regulator of the conduct of private individuals. . . .

In rendering the United States amenable to some suits in tort, Congress could not have intended to impose liability for the regulatory enforcement activities of the FAA challenged in this case. The FAA has a statutory duty to promote safety in air transportation, not to insure it.

It is difficult, of course, if not impossible, to fathom a distinction in the difference in the regulation and promotion of safety of barge traffic on the Mississippi River from the regulation and promotion of safety in aircraft travel. However, the Court did not deal with that distinction. It is also difficult to fathom the Court's rejection of the application of the Indian Towing good samaritan doctrine to the actions of the government in Varig. I, and I am sure many members of the public, feel more secure and place confidence in commercial airline travel in the knowledge that the government has a program of certificating aircraft as air worthy. In my judgment the decision in Varig cannot be equated with Indian Towing nor Eastern Airlines, Inc. v. Union Trust Company, 221 F.2d 62 (D.C. Cir. 1955), aff'd, 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796 (1955).

It is no vice to feel sympathy and compassion for those who have suffered damage by reason of the failure of a government entity to function perfectly. However, in my view it is a distortion of legal reasoning to classify such failure as a "tort" solely for the purpose of permitting recovery. In plain words, the Court has created a cause of action against government entities unknown at the common law, and in my judgment not intended by either our legislature or the Congress.

The creation of such a cause of action places courts in the position of passing judgment on the performance of other branches of government. I would ask by what standards we are to judge the actions of government in the furnishing of services to its people. Do we ask if that entity has acted as a reasonable and prudent government? If so, to what do we compare? Are we to consider a relatively affluent government entity, an average government entity, or a money-poor entity? Will that standard vary depending upon the willingness of a citizenry to pass a bond issue, the unwillingness of a commission, body, or legislature to appropriate funds or levy additional taxes.

I deem it clear that neither the Congress nor our state legislature, in their enactments of their respective tort claim acts, intended to create a new cause of action unknown to the common law. As stated in the "Idaho Tort Claims Act," I.C. § 6-903: "Nothing in this Act shall enlarge or otherwise adversely effect the liability of an employee or a governmental entity." Hence, I suggest that any analysis of a claim under the Tort Claims Act should involve a two-step procedure. First, the circumstances must exhibit the commission of a "tortious" act by a governmental servant or employee. If an act is to be held "tortious" it must involve the breach of a duty owed the victim by the actor, the consequences must have been reasonably foreseeable by the actor, and the act must have been the proximate cause of the damages without intervening causation. It is only if that first requirement is satisfied that it is necessary to move to the second step, i.e., although the act was "tortious" do provisions of the Tort Claims Act nevertheless continue to shelter the government unit from liability — was the "tortious" act intentional such as arising out of assault and battery, liable, slander, etc. — although the act was tortious did it involve the exercise of discretion?

Therein I believe lies the difficulty with many of the decisions. I assert that too many courts have entered into the morass of attempting to determine whether there has been an exercise of judgment, at whatever level, to bring the circumstances within the liability bar of the discretionary function exception without first determining if the act complained of was "tortious."

I now turn to the concept of the government being considered a good samaritan for the purpose of establishing a "tortious" act if it renders less than perfect service in any of the plethora of activities in which it engages in its efforts to benefit its citizens. Government at various levels touches our lives literally from the cradle to the grave. It prescribes testing of, and procedures to be used upon, newborn infants. It regulates the practice of organ transplants, embalming, and burial. It regulates the food we eat; the drugs and pharmaceuticals which we use; the clothing we wear; the vehicles we use for transport; and the media upon or in which we are transported; it regulates the construction of the structures where we live or work; it regulates our wages and the length of time we may labor; it regulates the institutions and markets in which we may invest our monies. It touches every aspect of our lives including the air we breathe.

In history's drive toward the accomplishment of a social welfare state, federal, state and local governments undertake programs to protect people against almost every conceivable risk of harm or evil in almost every aspect of their lives. While in days past those programs were relatively minimal, now almost every human activity is touched by government protectionism. Some critics assert that the individual is being stultified and society is being overly regulated and/or protected. Nevertheless, such governmental regulation and protectionism appears to be our public policy, and I would doubt that there will be any reversal of that trend. I also suggest, however, that if less than perfect performance of such regulatory protectionism is to be the basis of governmental liability, then the costs of such programs will become even more astronomical. When such costs cannot be afforded, undoubtedly programs will be terminated, a result which I would consider contrary to public policy.

I suggest further that the literal extension of the so-called good samaritan rule to establish liability in the less than perfect rendition of governmental services, raises the spector of other dangers outside the area of government. Assume that a public benefit is conferred by the public dissemination of information in our print and broadcast media. I would take judicial notice that the media publishes information of weather prediction, road reports, financial markets, livestock prices, currency fluctuations, and other beneficial information. If such information is negligently collected, transmitted, collated, printed, or broadcast, and an individual suffers damage thereby, do such circumstances constitute a "tortious" act for which liability may result? I would hold that public policy is to the contrary, since if such liability were to be established, the logical action to avoid future liability would be to discontinue the dissemination of such news. In my view the discontinuance of such information would be contrary to public policy. If we look to legislative intent, how do we view legislative intent as demonstrated in I.C. § 5-330, abolishing, at least in part, traditional good samaritan liability.

As stated at the outset of this overly long dissent, I believe this Court should exercise caution before taking this next gigantic step down the road of liability for the less than perfect acts of government, which I hold is the establishment of a new cause of action in "tort" unknown to the common law, and not contemplated by the legislative bodies enacting the "tort" claims act. In my mind, if Erle Stanley Gardner were chronicling these events, he would entitle his writing "The Case of the Tortured Tort."

I assert that this Court has in past decisions enacted massive changes in policy concerning the relationship between entities of government and their citizens. Today the change is amplified and expanded into unlimited fields of government activity. The majority asserts that the law of "tort" requires the result. I disagree. Such "tort" liability was unknown in the common law and I would hold that the legislature did not intend to create such a new and novel cause of action.

BAKES, Justice, dissenting.

I dissent for the reasons set out in my dissenting opinion in Sterling v. Board of Corrections, 111 Idaho 211, 723 P.2d 755 (1986).