http://caselaw.lp.findlaw.com/data2/ida ... comazz.pdfThis Court has held a “duty owed by one party to another in contract could give rise to a
cause of action in tort if the relation of the plaintiff and defendant is such that a duty to take care
arises therefrom independently of the contract.†Featherston v. Allstate Ins. Co., 125 Idaho 840,
843, 875 P.2d 937, 940 (1994). However, in this case the duty owed to -them- did
arise in the contract. Northwest Academy promised to administer its “program.†It can be
reasonably implied that the employees of Northwest Academy took measures to effectuate the
goals of the Northwest Academy program. Kevin’s injury occurred during a counseling session
and was caused by a confrontation with a counselor presumably administering that program.
What the nature of the program is, what tactics were used by employees, whether the allegations
are true or false, or what level of knowledge -they- had of these activities is not a
matter for this Court to decide.
The contract contains a provision that serves as a waiver for all
personal injuries caused by or otherwise relating to the participants’ attending Northwest
Academy. The issue was contemplated and agreed to by the parties to the contract.
In order to determine liability and/or damages the arbitrator will necessarily have to
determine, taking into account the above waiver, if CEDU will be held liable for its employee
causing Kevin’s injury. This is not a case where the plaintiff can frame an issue differently in
order to circumvent arbitration. The contract specifically addresses those facts alleged in the
complaint, and the arbitration clause is sufficiently broad to cover the claims for battery,
negligence and violation of Idaho laws relating to children."