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10 In Bookman v. Bolt,92 the plaintiffs' decedent died as action or response was appropriate.98 The reason that a result of an accident that occurred when he rode on a states have no general obligation to place signs or warn- bicycle path that crossed a street.93 The city at the time ings is that such decisions are policy or planning level of the accident had two construction projects in progress in nature and must be made by the legislative or execu- and "planned to install a traffic signal at the intersec- tive branches of the government.99 Nevertheless, after a 94 tion after construction was complete...." Although decision is made to provide signs, signals, or markings, there were posted warnings at the location of the acci- there is a duty to place and maintain them with rea- dent, the city had not installed the planned traffic sig- sonable care.100 Furthermore, a duty may arise to install nal.95 The city defended on the basis that it had sover- or provide them at the location of a dangerous condition eign immunity, because "it was not required by law to of which the public entity had actual or constructive 101 install a traffic signal, and any failure to install a traffic notice. When a highway agency must maintain high- signal was the result of discretionary action.... The city ways or bikeways free of hazards, its duty may include also argued that sovereign immunity applied because the proper maintenance of directional signs, traffic sig- the failure to initially install a traffic signal was the nals, or stop signs.102 result of discretionary action."96 The court agreed that Two sections of the California Government Code ap- the city had sovereign immunity and affirmed the trial plicable to the liability of public entities illustrate that 97 court's grant of a summary judgment for the city. there is no general duty to provide certain highway As illustrated by the Bookman case, a state legisla- warning or traffic control features or devices. For ex- ture may have waived sovereign immunity in regard to ample, Section 830.4 of the California Government Code some claims but not others against public entities. provides that Moreover, as discussed in the next section, public enti- [a] condition is not a dangerous condition within the ties typically have immunity for the exercise of discre- meaning of this chapter merely because of the failure to tion, such as when to install traffic signals, signs, or provide regulatory traffic control signals, stop signs, yield other traffic control devices. right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as B. No General Duty to Install or Provide Highway described in Section 21460 of the Vehicle Code. Signs, Signals, or Pavement Markings Highway warning signs, traffic lights, or pavement 98 French v. Johnson County, 929 S.W.2d 614, 617 (Tex. markings are important features of safe roads and App. 1996) (holding in a case involving an accident on a bridge highways, as well as bikeways. The courts have held, built in 1943 that the county's failure to install guardrails, however, that in the absence of statute, a public entity replace the bridge, or post warnings after the date of the tort responsible for highways or bikeways has no general claims act did not constitute an act or omission waiving immu- duty to install or provide highway signs, lights, or nity and that the decision not to post warning signs was discre- markings. Numerous cases hold that the failure to pro- tionary); Urow v. District of Columbia, 316 F.2d 351 (D.C. Cir. vide such highway features is not actionable, particu- 1963), cert. denied, 375 U.S. 826, 84 S. Ct. 69, 11 L. Ed. 2d 59 larly if a public entity had discretion regarding what (1963) (no liability for failure to exercise discretionary legisla- tive powers to control traffic at an intersection). 99 Bickner v. Raymond Turnpike, 2008 SD 27, *P13, 747 N.W.2d 668, 672 (S.D. 2008) (holding that a town's decision to of Wayne, 45 A.D. 3d 1337, 1338, 845 N.Y.S.2d 612, 613 (N.Y. remove a warning sign and not replace it was discretionary App. 4th Dep't 2007) (holding that the defendant submitted and therefore immune from liability); Weiss v. N.J. Transit, evidence that its signs were installed in accordance with the 128 N.J. 376, 382, 608 A.2d 254, 257 (1992) (holding that the Manual on Uniform Traffic Control Devices (MUTCD), that it tort claims act's provision of an explicit grant of immunity for conducted periodic reviews of traffic volume, that it had not the failure to provide traffic signals prevailed even if there was received any written complaints concerning the intersection, a cause of action for other inaction, such as a delay in imple- and that there had been only one reported accident near the menting a plan to install a traffic signal at a railroad crossing); intersection in the 2 years prior to the plaintiff's accident); Metier v. Cooper Transport Co., 378 N.W.2d 907, 911 (Iowa Racalbuto v. Redmond, 46 A.D. 3d 1051, 1052, 847 N.Y.S.2d 1985) (decision whether or not to post a warning sign at a par- 283, 285 (N.Y. App. 3d Dep't 2007) (holding that the county ticular highway location "was operational in character"); Ufnal had qualified immunity when the county had reviewed the v. Cattaraugus County, 93 A.D. 2d 521, 525, 463 N.Y.S.2d 342, highway plan and placed signs near an intersection that 345 (N.Y. App. 4th Dep't 1983) (decision not to erect deer warn- alerted motorists of a curve and the upcoming intersection). 92 ing signs based on negative evidence tending to show a lack of 881 S.W.2d 771 (Tex. Ct. Civ. App. 1994) writ denied, need at a certain location was a "discretionary governmental (Nov. 3, 1994). decision"), appeal denied, 60 N.Y.2d 554 (N.Y. 1983). 93 881 S.W.2d at 772. 100 Chart v. Dvorak, 57 Wis. 2d 92, 203 N.W.2d 673, 67778 94 Id. at 773. (1973). 95 Id. 101 See discussion, infra, in IV.C, V, and VI. 96 Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. 102 Messerschmidt v. City of Sioux City, 654 N.W.2d 879, 101.056(1) & (2) (Vernon 1986) (discretionary powers) and 883 (2002) (construing Iowa Code 668.10(1) to mean that 101.061(a)(1) (Vernon 1986) (traffic and road-controlled de- when a regulatory device has been set up, "the state or munici- vices)). pality may be assigned a percentage of fault for its failure to 97 Id. at 774, 775. maintain the device").