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16 C. The Discretionary Function Exemption and walking trail in Dubuque.177 The court reversed the trial Bikeway Claims Against Public Entities court's dismissal of the case on the basis that the city had immunity.178 The plaintiff alleged that the city was In regard to bicycle accidents and the effect of the negligent in the design, construction, and maintenance discretionary function exemption, there are cases hold- of the trail built in 1973 or 1974.179 The city had overlaid ing that the exemption applies, or that a trial is re- the deteriorated surface of the trail with another layer quired to determine whether the exemption applies, or of asphalt in 1991; however, the city did not raise the that the exemption does not apply. Some cases hold shoulders of the trail, the plaintiff's principal claim of that a public entity, if challenged, must be able to prove negligence.180 Although AASHTO standards for the con- that it exercised its discretion before making a decision, struction of such trails that discourage construction that the discretion it exercised involved policy consid- with a drop-off were not published when the trail was erations, or that the public entity consciously balanced built originally, the AASHTO standards were in effect the risks and benefits of the proposed decision. in 1991 when the asphalt overlay was added.181 For example, in Hanson v. County of Vigo,168 a vehi- The issue was whether the city's action was pro- cle struck the young plaintiff while she was riding her tected by the discretionary function exemption in the bicycle in an intersection.169 The county board had ap- 182 Iowa Code that was applicable to the liability of cities. proved a plan for the placement and replacement of The court held that the functions alleged to have been signs on county roads; however, the board approved the 170 performed negligently in regard to the bike trail were plan without deliberation. In applying the Indiana entitled to immunity, because they involved "`policy Tort Claims Act, in particular the discretionary func- formation, as distinguished from the day-to-day activi- tion exemption, IC34.4-16.5-3, the court stated that it ties of persons not engaged in determining the general applied the "`planning-operational' standard."171 Hanson nature of the Government's business....'"183 The court conceded that Vigo's decision to place and replace signs observed that "[o]ur cases have held that liability under at intersections was a discretionary function and there- tort claims acts is the rule and immunity is the excep- fore immune but argued that the county had been neg- tion."184 However, "before immunity attaches there must ligent in the implementation of the decision, in particu- be some form of considered decision, that is, one which lar "for failing to prioritize placement at unmarked balances risk and advantages."185 The court held that intersections prior to replacing signs at intersections the city had not met its burden to establish that it had which were currently unmarked."172 The county failed to immunity, because "the city produced no evidence that introduce evidence "proving that implementation of the the choice it made with respect to whether the overlay plan had been considered by the Board" or that the should be done with or without grading of the accompa- Board "consciously balance[ed] risks and benefits of the nying shoulders was the sort of decision that the discre- Board's decision."173 Rather, "it was the county engineer tionary function immunity intends to protect, i.e., a who decided how to implement the Board's plan...but decision weighing `social, economic, or political poli- his actions did not rise to the level of executive judg- cies.'"186 The court remanded the case, without regard to ments that should be afforded protection under the gov- 174 the city's claim of immunity, for proceedings on the ernmental immunity doctrine." The court remanded merits of the plaintiff's claims.187 the case for a "determination of whether the Board en- In Angell v. Hennepin County Regional Rail Author- gaged in a decision-making process regarding the im- 188 ity, the plaintiff, who veered off a paved public trail plementation of the sign plan" and whether "the im- onto a dirt path that appeared to be well traveled, was plementation decision resulted from a conscious 175 injured when she biked off a loading dock at the end of balancing of risks and benefits." the dirt path.189 The court had to determine whether the In Schmitz v. City of Dubuque,176 the plaintiff was in- discretionary function exemption of the Minnesota tort jured when the front wheel of her bicycle caught the claims act applied to the authority, which was a local edge of an asphalt overlay on a designated bicycle and 177 Id. at 71. 178 168 Id. 659 N.E.2d 1123 (Ind. App. 4th Dist. 1996). 179 169 Id. Id., 659 N.E.2d at 1125. 180 170 Id. Id. See also Madden v. Ind. Dep't of Transp., 832 N.E.2d 181 1122, 1128 (Ind. App. 3d Dist. 2005) (stating that "nor may we Id. 182 find discretionary function immunity based solely on testimony Id. 183 by a representative of the governmental entity that meetings Id. at 73 (quoting Downs v. United States, 522 F.2d 990, were held, without written documentation of the meetings"). 996 (6th Cir. 1975)). 171 184 Id. Id. at 74. 172 185 Id. at 1126. Id. (citation omitted). 173 186 Id. Id. at 76 (citation omitted). 174 187 Id. (emphasis supplied) (citation omitted). Id. 175 188 Id. at 1127. 578 N.W.2d 343 (Minn. 1998). 176 189 682 N.W.2d 70 (Iowa 2004). Id. at 344.