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14 In Dalehite, the Supreme Court held that govern- lines and summarized by category when a federal em- ment decisions that are made at a "planning rather ployee's actions are discretionary and therefore immune than operational level" involve the exercise of discretion from liability, as well as when the employee's actions do within the meaning of the discretionary function ex- not involve the exercise of discretion and are not im- emption and therefore are exempt from liability.140 mune. In Indian Towing, the Court held that once the gov- First, "[u]nder the applicable precedents...if a regu- ernment makes a decision at the planning or policy lation mandates particular conduct, and the employee level, the discretion is exhausted and any negligence obeys the direction, the Government will be protected thereafter in implementing the decision is not protected because the action will be deemed in furtherance of the by the exemption.141 policies which led to the promulgation of the regula- In Varig Air Lines, the Court rejected the argument tion...."148 that planning-level activities may take place only at the Second, "[i]f the employee violates [a] mandatory highest levels of government. However, for decisions at regulation, there will be no shelter from liability be- the planning level to qualify for the exemption from cause there is no room for choice and the action will be liability, the decisions had to have been grounded on contrary to policy."149 considerations of "social, economic, and political pol- Third, "if a regulation allows the employee discre- 142 icy." Nevertheless, the Varig decision reaffirmed tion, the very existence of the regulation creates a Dalehite's planning-operational test.143 strong presumption that a discretionary act authorized In 1991, in United States v. Gaubert,144 the Supreme by the regulation involves consideration of the same Court held that there is no distinction between plan- policies which led to the promulgation of the regula- ning- and operational-level actions.145 For example, if a 150 tions." government regulation allows a government employee In sum, since the Gaubert decision, the test under to exercise discretion, then "the very existence of the the FTCA for determining whether a decision is pro- regulation creates a strong presumption that a discre- tected by the discretionary function exemption is not tionary act authorized by the regulation involves con- the level of the decision-maker but rather the discre- sideration of the same policies which led to the promul- tionary nature of the decision itself. gation of the regulations."146 Moreover, the Court held that "it must be presumed that the agent's acts are B. The Meaning of the Discretionary Function grounded in policy when exercising that discretion."147 Exemption in State Tort Claims Acts Under Gaubert, it is not the status or level of the gov- As discussed below, it appears that a majority of ernmental actor that determines whether the discre- state courts follow the Dalehite approach, some follow tionary exemption applies; rather, it is the nature of the the Indian Towing approach, and a smaller number of conduct or decision-making. state courts have chosen to follow the Gaubert approach In Gaubert, the Court made it clear that the exercise in construing a state tort claims act's discretionary of immune discretion is not confined to the so-called function exemption.151 policy or planning level. The Gaubert Court expanded In Johnson v. State,152 a pre-Gaubert case, the Cali- the area of discretionary immunity beyond that exer- fornia Supreme Court pointed out that a distinction cised at the so-called planning level. The Court re- between the words "discretionary" and "ministerial" viewed its prior precedents in Dalehite and Varig Air- 148 Id. at 324, 111 S. Ct. at 1274, 113 L. Ed. 2d at 347. 149 court created a narrow exception to governmental immunity Id. (emphasis supplied). from tort liability in instances when officials engage in discre- 150 Id. tionary acts in accordance with a 4-part inquiry). 151 Johnson v. Dep't of Transp., 2004 UT App 284, *P22 N 4, 140 346 U.S. at 42, 73 S. Ct. at 971, 97 L. Ed. 1444. 98 P.3d 773, 780 N 4 (Utah App. 2004) (stating that a "decision 141 350 U.S. at 69, 76 S. Ct. at 126, 100 L. Ed. at 56. to allow the lane adjacent to the cutouts to remain open at 142 467 U.S. at 814, 104 S. Ct. at 2765, 81 L. Ed. 2d at 674. night was clearly not a discretionary function since the deci- 143 sion was made by a UDOT on-site inspector who acts at the See Ala. Elec. Coop., Inc. v. United States, 769 F.2d 1523, operational level" and following Trujillo v. Utah Dep't of 152728 (11th Cir. 1985) (stating that "Varig Airlines supports Transp., 1999 Utah App. 227, 986 P.2d 752, 760 N 2 (Utah the planning/operational distinction developed by the lower 1999) (rejecting the Gaubert analysis, holding that the U.S. courts in cases subsequent to Dalehite" and adding that plan- Supreme Court's interpretation of the discretionary function ning level decisions are those that involve "the evaluation of exemption in the FTCA was not binding on Utah's interpreta- factors such as the financial, political, economic, and social tion of its tort claims act, and ruling that the court would con- effects of a given plan or policy," whereas operational level tinue to follow the planning/operational dichotomy)). decisions are those involving "normal day-by-day operations of 152 the government"). 69 Cal. 2d 782, 73 Cal. Rptr. 240, 447 P.2d 352 (1968). In 144 Johnson the plaintiff sought damages from the State for its 499 U.S. 315,111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991), failure to give adequate warning of the homicidal tendencies of on remand, 932 F.2d 376 (5th Cir. 1991). 145 a 16-year-old youth who the State had placed in a foster home. Id. at 324, 111 S. Ct. at 1274, 113 L. Ed. 2d at 34748. In holding that the State was not immunized by the above 146 Id. provision of the statute, the court rejected a semantic approach 147 Id. at 324, 111 S. Ct. at 1274, 113 L. Ed. 2d at 348. to the applicability of the discretionary function exception.

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15 based on linguistics or lexicography would not work, have contributed to an improper traffic light setting because virtually all ministerial activity involves the was irrelevant.160 exercise of discretion. The court stated that the purpose Some state courts continue to apply the planning- of the statutory provision for discretionary immunity operational test of discretion, sometimes without even was to assure "judicial abstention in areas in which the mentioning the later Gaubert case;161 however, in 162 responsibility for basic policy decisions has been com- Trujillo v. Utah Dep't of Transportation, the Supreme mitted to coordinate branches of government."153 The Court of Utah expressly declined to embrace the court held that the statutory provision for discretionary Gaubert decision. In Trujillo, the court ruled that the immunity related exclusively to determinations made transportation department's formulation of a traffic by a coordinate branch of government that involve basic control plan to use barrels rather than barriers at an policy decisions, thus following the decisions in Dalehite accident location was not a policy-level decision.163 and Varig Airlines.154 Moreover, the court held that the failures to reduce Although many state courts have not adopted the speed in a construction zone as called for in the con- U.S. Supreme Court's approach in Gaubert,155 the Dis- struction plan, to investigate accidents, or to consider trict of Columbia Court of Appeals follows the Gaubert corrective action in response to notice of a dangerous analysis concerning what kind of decision-making is condition were all operational-level activities.164 Another discretionary. For example, in Aguehounde v. District of court has stated that if the "work involved no marshal- Columbia,156 involving a claim by a pedestrian struck at ing of state resources, no prioritizing of competing an intersection controlled by a traffic signal, the court needs, no planning, and no exercise of policy-level dis- held that the setting of signal lights was an exercise of cretion," then the activity is likely to be held to be op- discretion. The Court of Appeals, citing prior precedent erational in nature.165 In Tseu ex rel. Hobbs v. Jeyte,166 in the District of Columbia, observed that when "an the court stated that it had never adopted the reasoning employee fails to follow an established policy, because in Gaubert, and it would be "directly contrary to its pre- the existence of a set policy means that all discretion vious holdings on the discretionary function exception 167 has been removed from the employee, ...the employee's under Hawaii law to do so." actions ministerial."157 After "[f]inding that Guidance the setting of yellow intervals is a discretionary func- It is widely held under tort claims acts that public en- tion,"158 the court next turned to the question of whether tities are not liable for negligence committed in the exer- there was a specific or mandatory directive for employ- cise of their discretion. Although the rationale of the ees to follow in setting the timing interval.159 The court, Supreme Court's decision in United States v. Gaubert, finding none, concluded that the employees were exer- supra, is more favorable to public entities and allows for cising discretion and that any alleged mismeasurement immune discretion to be exercised at all levels of a pub- at the intersection by the District's employees that may lic entity's decision-making, including at the so-called operational level, the majority of courts appears to ad- 153 Id. at 793, 73 Cal. Rptr. at 360, 447 P.2d at 248 (empha- here to the rationale that the only exercise of discretion sis in original). that is discretionary and therefore is immune from li- 154 69 Cal. 2d at 793, 795, 73 Cal. Rptr. at 360, 361, 447 P.2d ability is that discretion that is exercised at the policy or at 248, 249. See also Fortenbacher v. Commonwealth, 72 Mass. planning level. App. Ct. 82, 89, 888 N.E.2d 377, 383 (Mass. App. Ct. 2008) (holding that the decision whether and how to erect guardrails was "the quintessential type of discretion for which [the Mas- sachusetts Tort Claims Act] 10(b)...Act provides immunity"); Willing v. Estate of Benz, 958 So. 2d 1240, 1251 (Miss. App. 2007) (holding that a city's duty to warn of correct icy condi- 160 tions involving a highway was the exercise of a discretionary Id. 161 function under the state's torts claim act), cert. denied, 958 So. Taylor-Rice v. State, 979 P.2d 1086, 1104 (Haw. 1999) 2d 1232 (Miss., June 14, 2007). (failure to replace a guardrail was operational-level act with no 155 Trujillo v. Utah Dep't of Transp., 1999 Ut. App. 227, 986 mention of Gaubert); State v. Livengood, 688 N.E.2d 189, 196 P.2d 752 (1999); Tseu ex rel. Hobbs v. Jeyte, 88 Haw. 85, 90, (Ind. App. 1st Dist. 1997) (design and installation of replace- 962 P.2d 344, 349 (1998); and Rick v. State Dep't of Transp. & ment of a portion of a guardrail to comply with a safety stan- Dev., 630 So. 2d 1271 (La. 1994), overruled on other grounds, dard was operational-level task and not immune); and Schroe- Long v. State, 916 So. 2d 87, 10102 (La. 2005). der v. Minnesota, 1998 Minn. App. LEXIS 1436 (1998) 156 (Unrept.) (decision to patch pavement where it met a bridge 666 A.2d 443 (D.C. App. 1995). See also Tucci v. District was an operational-level activity). of Columbia, 956 A.2d 684, 691 (D.C. Ct. App. 2008) (stating 162 that the court had previously rejected an "attempt to blur the 1999 Ut. App. 227, 986 P.2d 752 (Utah 1999). 163 distinction between discretionary and ministerial functions by Id. at *P33, 986 P.2d at 762. 164 `isolating each component of a decision'" and citing Ague- Id. at *P34, 986 P.2d at 762. hounde, supra.) 165 Defoor v. Evesque, 694 So. 2d 1302, 1306 (Ala. 1997). 157 666 A.2d at 450. 166 Tseu ex rel. Hobbs v. Jeyte, 88 Haw. 85, 962 P.2d 344 158 666 A.2d at 451. (1998). 159 167 Id. Id. at 89, 962, P.2d at 348.