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13 jurisdictions that have not enacted tort claims acts ap- mental-proprietary test of tort liability of municipal plicable to municipalities. corporations. In Augustine v. City of West Memphis,122 the plaintiff was injured while riding her bicycle when city employ- SECTION V. IMMUNITY OF PUBLIC ENTITIES FOR ees were cutting tree limbs, one of which fell and struck THE EXERCISE OF THEIR DISCRETION her. The plaintiff alleged that the employees were act- ing in a "proprietary capacity."123 The plaintiff alleged that A. The Meaning of the Discretionary Function the defendants (a) failed to have warning devices in the Exemption area where the limbs were being cut, (b) failed to warn The primary defense to a public entity's tort liability the plaintiff and other persons of the dangerous activities for negligent design, construction, and maintenance is in and about the truck, (c) cut limbs that would fall in the based on the doctrine now codified in nearly all state traveled path of the street, and (d) failed to block off traf- tort claims acts: certain actions undertaken by govern- 124 fic in the area where the tree limbs would fall. ments are "discretionary" in nature, and, therefore, are The court agreed with the city that under the state's immune from liability. Because judgment, choice, or former law the city had been "acting in a governmental discretion is present in virtually all human activity, the capacity" at the time of the accident.125 The court also issue becomes one of trying to distinguish between dis- observed that "the former distinction between govern- cretionary and nondiscretionary actions within the mental and proprietary actions was abolished by Act meaning of the exemption from liability. Although the 165 of 1969, which declared the state's public policy to courts have attempted to provide guidance, they have be that municipal corporations and other political sub- had difficulty defining what qualifies as discretionary divisions shall be immune from liability in tort."126 activity.134 In Hillerby v. Town of Colchester,127 the plaintiff was The state courts tend to follow one of three ap- riding his bicycle across a grassy area in the town when proaches in construing their own public tort claims acts a manhole cover that he was crossing collapsed.128 The having a discretionary function exemption. The ap- trial court "abandoned the established governmen- proaches are derived principally from the United States tal/proprietary distinction in favor of the private-analog Supreme Court's decisions in Dalehite v. United test, a test used to determine the liability of the State in States,135 Indian Towing Co. v. United States,136 United 129 137 tort actions." The Supreme Court of Vermont, in re- States v. Varig Air Lines, and United States v. 138 sponding to questions certified to it regarding the issue Gaubert, all of which involved claims asserted under of the proprietary/governmental distinction in munici- the Federal Tort Claims Act (FTCA). pal tort liability, held that whether the traditional gov- Even if a state tort claims act does not have an ex- ernmental/proprietary approach should be abrogated emption for discretionary action, some courts have held was a matter for the legislature to decide.130 The court that the state and its agencies are still immune for their stated, however, that the "courts have held municipali- decisions that are discretionary in nature, as long as ties liable only where the negligent act arises out of a the decision-making involves the evaluation of broad duty that is proprietary in nature as opposed to gov- policy factors and considerations.139 ernmental."131 The court, furthermore, observed that Vermont is in the minority of states that continue to 134 Federal cases are collected in "Claims Based on Con- follow the governmental/proprietary test of municipal struction and Maintenance of Public Property as within Provi- 132 liability but stated that the decision whether to aban- sion of 28 U.S.C. 2680(a) Excepting from Federal Tort Claims don or alter the law was a matter for the legislature, Act Claims involving `Discretionary Function or Duty,'" 37 not the court, to decide.133 A.L.R. Fed. 537. In sum, the clear trend is that municipal corpora- 135 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), reh'g tions are subject to tort claims legislation and the prin- denied, 346 U.S. 841, 880, 74 S. Ct. 13, 117, 98 L. Ed. 362, 386, ciples discussed herein rather than the former govern- reh'g denied, 347 U.S. 924, 74 S. Ct. 511, 98 L. Ed. 1078 (1954), overruled as stated in Flax v. United States, 847 F. Supp. 1183, 122 1188 N 5 (D. N.J. 1994). 281 Ark. 162, 662 S.W.2d 813 (1984). 136 123 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955). Id. at 163, 662 S.W.2d at 814. 137 124 United States v. S. A. Empresa de Viacao Aerea Rio Id. 125 Grandense (Varig Airlines), 467 U.S. 797, 104 S. Ct. 2755, 81 Id. L. Ed. 2d 660 (1984), reh'g denied, United States v. United 126 Id. (citing ARK. STAT. ANN. 12-2901 (Repl. 1979)). Scottish Ins. Co., 468 U.S. 1226, 105 S. Ct. 26, 82 L. Ed. 2d 919 127 167 Vt. 270, 706 A.2d 446 (1997). (1984), on remand, S.A. Empresa de Viacao Aerea Rio Gran- 128 Id. at 272, 706 A.2d at 446. dense (Varig Airlines) v. United States, 744 F.2d 1387 (9th Cir. 129 1984). Id. 138 130 499 U.S 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991), Id. at 273, 706 A.2d at 447. 131 on remand, 932 F.2d 376 (5th Cir. 1991). Id. at 272, 706 A.2d at 447. 139 132 Miotke v. Spokane, 101 Wash. 2d 307, 335, 678 P.2d 803, Id. 819 (1984) (stating that in Evangelical United Brethren 133 Id. at 274, 706 A.2d at 448. Church v. State, 67 Wash. 2d 246, 407 P.2d 440 (1965), the