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17 governmental unit and a political subdivision of the former design during reconstruction,194 and decisions state. The question was whether the authority was ex- whether to use barriers195 or how to set speed limits.196 ercising discretion or was engaged only in operational The public entities that responded to the survey did not activity when it "failed to restrict access to the Hopkins report any bikeway claims involving negligent design corridor and failed to block off the loading dock or to and thus did not report any instances when they had warn of its presence...."190 The court held that the record been held liable for the negligent design of a bikeway. did not show that the authority's failures were based on No cases were located in which a public entity had been "policy decisions involving economic, political, and so- held liable for the negligent design of a bikeway. cial factors;"191 but rather, because the authority's fail- With respect to liability for the negligent design of ures were nothing more "than technical and profes- public improvements, the discretionary function exemp- sional evaluations" (discussed in the opinion), the tion in the FTCA was held to preclude the liability of 192 authority was not entitled to immunity. the United States for a bridge design in Wright v. In sum, a public entity should have immunity for al- United States.197 Similarly, in Summer v. Carpenter,198 leged negligence committed at the planning level under the Supreme Court of South Carolina held that under either a United States v. Dalehite or a United States v. South Carolina law, "[a]s for negligent design, the Gaubert type of analysis of the discretionary function [South Carolina Tort Claims] Act provides absolute exemption of a state's or locality's tort claims act. governmental immunity from liability for loss resulting Guidance from the design of highways and other public ways."199 Although a public entity usually is immune for al- In the Summer case, the court held that the department leged negligence committed in the exercise of its discre- would be immune even if it had been on notice that the tion at the policy or planning level, it is clear that some design of the intersection was dangerous.200 Other cases courts require that there be a showing that a public en- have found that a public entity had design immunity for tity, in fact, exercised its discretion. In the Hanson case, various reasons.201 However, design immunity only ap- supra, the court remanded the case for a determination of whether the public entity's board had engaged in a gerald v. Palmer, 47 N.J. 106, 219 A.2d 512 (1966) (decision by decision-making process and consciously balanced the the State not to design its overpasses with wire fences). risks and benefits concerning a proposed plan for the 194 Richardson v. State, Dep't of Roads, 200 Neb. 225, 263 placement and replacement of signs on county roads. N.W.2d 442 (1978), supp. op., 200 Neb. 781, 265 N.W.2d 457 Another appellate court deciding the issue may not have (1978). See also Maresh v. State, 241 Neb. 496, 518, 489 allowed the public entity a second chance to offer proof N.W.2d 298, 314 (1992) (holding that design decisions are dis- that it actually had exercised its discretion. It is sug- cretionary but that the "failure to warn would be actionable, as gested that public entities maintain records of their de- it embodies no discretionary functions, and the doctrine of state immunity does not apply"). cision-making with respect to bikeways and their safety 195 and condition, so that there will be evidence on the part Alvarez v. State, 79 Cal. App. 4th 720, 73839, 95 Cal. Rptr. 2d 719, 73233 (Cal. App. 5th Dist. 1999) (design immu- of the public entity that there was an actual exercise of nity not lost because of an absent barrier, although approved the entity's discretion at the time of any decision- for eventual installation because of higher traffic volume) and making. Higgins v. State, 54 Cal. App. 4th 177, 62 Cal. Rptr. 2d 459 (1997) (upheld immunity for a barrier because it was a design D. Immunity for Negligent Design Based on a decision). Statutory Exemption for Discretionary Activity 196 Fuller v. Dep't of Transp., 89 Cal. App. 4th 1109, 107 Cal. Rptr. 2d 823 (Cal. App. 4th Dist. 2001), review denied, 2001 D1. Immunity for the Design of Highways and Cal. LEXIS 6287 (Cal. Sept. 12, 2001). 197 Bikeways 568 F.2d 153, 158 (10th Cir. 1977) (stating that the gov- ernment "was engaged in a `discretionary function' when it If there is one area of government activity that gen- determined to aid and assist the State of Utah in the construc- erally is considered to be immune as a protected exer- tion of the bridge and approach roads...."), cert. denied, 439 cise of discretion, it is the one of the design of highways U.S. 824, 99 S. Ct. 94, 58 L. Ed. 2d 117 (1978). and bikeways. Whether pre- or post-Gaubert, there are 198 328 S.C. 36, 43, 492 S.E.2d 55, 58 (1997), reh'g denied numerous examples of governmental actions that have (Oct. 21, 1997). been held to be discretionary, including the approval of 199 Id. designs and specifications,193 the decision to adhere to a 200 Id. 201 Laabs v. City of Victorville, 163 Cal. App. 4th 1242, 1267, 190 78 Cal. Rptr. 3d 372, 393 (Cal. App. 4th Dist. 2008) (holding Id. at 347. 191 that with respect to the city's placement of a luminaire too Id. close to the roadway, summary judgment for the city was 192 Id. at 348. proper as the evidence established that the city had design 193 Delgadillo v. Elledge, 337 F. Supp. 827 (E.D. Ark. 1972) immunity as a matter of law), modified and rehearing denied, (approval of designs and specifications was discretionary and, 2008 Cal. App. LEXIS 995 (Cal. App. 4th Dist. July 7, 2008); therefore, immune); Hughes v. County of Burlington, 99 N.J. Florida Dep't of Transp. v. Allen, 768 So. 2d 496, 497 (Fla. 4th Super. 405, 240 A.2d 177 (1968) (decision to omit emergency DCA 2000) (holding that denial of defendant's motion for a shoulders), cert. denied, 51 N.J. 575, 242 A.2d 379 (1968); Fitz- summary judgment was error because before the government's

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18 plies to "a design-caused" accident. Design immunity because the approval of a plan or design was arbitrary does not immunize decisions that were not made; "the or unreasonable.208 injury-producing feature must have been a part of the In sum, under either a United States v. Dalehite or a plan approved by the governmental entity" for design United States v. Gaubert type of analysis, the majority immunity to be applicable.202 view is that the planning and designing of highways Only those aspects of design activity that involve and bikeways come within the meaning of the discre- broad policy considerations come within the ambit of tionary function exemption of tort claims acts for which the discretionary function exemption.203 The Supreme a public entity subject to the act has immunity for al- Court of Washington has stated that discretionary im- leged negligence. munity is "an extremely limited exception"204 to the gen- Guidance eral withdrawal of state tort immunity by the legisla- As explained in the next sections, although alleged 205 ture. The court identified decisions that involve broad negligence in the planning and designing of highways policy considerations that qualify for discretionary im- and bikeways may be protected from liability as an exer- munity, for example, the "decisions to build the free- cise of discretion, there are still some exceptions to im- way, to place it in this particular location so as to ne- munity of which a public entity should be aware. cessitate crossing the river, [and] the number of lanes...."206 However, for a public entity to be immune, it D2. Effect of Known Dangerous Conditions on Design must show "that it considered the risks and advantages Immunity of these particular designs, that they were consciously Although design immunity is recognized generally, balanced against alternatives, taking into account some courts have held that there is an exception to de- safety, economics, adopted standards, recognized engi- sign immunity if the public entity had notice209 of a dan- neering practices and whatever else was appropriate."207 gerous condition of a public improvement because of its There are cases, moreover, in which the courts have design and failed to take appropriate action.210 In such a held that public entities could not claim immunity be- case, the court may hold that the public entity had a cause there was inadequate study of a plan or design or duty to correct the dangerous condition or to give ade- quate notice of it to the traveling public.211 However, a state's statute may exclude a public en- tity's liability for inadequate design as illustrated by a sovereign immunity is waived, "there must be a known hazard Colorado case, Swieckowski v. City of Fort Collins, in- so serious and so inconspicuous to a foreseeable plaintiff that it virtually constitutes a trap," which the intersection in question 208 Romeo v. New York, 1997 N.Y. Misc. LEXIS 576, at *9 was not), review denied, 789 So. 2d 343 (Fla. 2001); Higgins v. (N.Y. Ct. Cl. 1997) (Unrept.) (holding that the State failed to State, 54 Cal. App. 4th 177, 18788, 62 Cal. Rptr. 2d 459, 465 conduct an adequate study of an intersection); but see Redcross 66 (Cal. App. 4th Dist. 1997) (evidence established that the v. State, 241 A.D. 2d 787, 78990, 660 N.Y.S.2d 211, 21314 absence of a median barrier was a design choice made by the (N.Y. App. 3d Dep't 1997) (holding that the placement of a State and that there were no "changed circumstances" to defeat pedestrian control button was not plainly inadequate or lack- the State's immunity); Shand Mining, Inc. v. Clay County Bd. ing a reasonable basis), appeal denied, 91 N.Y.2d 801, 669 of Comm'rs, 671 N.E.2d 477, 480 (Ind. App. 1st Dist. 1996) N.E.2d 533, 689 N.E.2d 533, 666 N.Y.S.2d 563 (1997). (holding that the county was entitled to immunity under a 209 statutory provision dealing with a loss caused by the design of If a dangerous condition was not of the State's own mak- a highway if the loss occurs at least 20 years after the highway ing, it must have had actual or constructive notice and a rea- was designed when there was no evidence that the county had sonable opportunity to take remedial action with respect altered or redesigned the highway since then), reh'g denied thereto; however, it has been held that when the dangerous (Feb. 13, 1997); and Cygler v. Presjack, 667 So. 2d 458, 461 condition was of the State's own making, notice was not re- (Fla. 4th DCA 1996) (affirming a summary judgment for the quired. Johnson v. State, 636 P.2d 47, 52 (Alaska 1981). 210 department and holding that the government was not liable for Thompson v. Coates, 694 So. 2d 599 (La. App. 2d Cir. failing to provide a traffic regulating or separating device or 1997), cert. denied, 701 So. 2d 987 (La. 1997) (stating that the barrier). design of a highway causing hydroplaning may result in a dan- 202 Grenier v. City of Irwindale, 57 Cal. App. 4th 931, 940 gerous condition). Compare Compton v. City of Santee, 12 Cal. 41, 67 Cal. Rptr. 2d 454, 459 (2d Dist. 1997). App. 4th 591, 600, 15 Cal. Rptr. 2d 660, 665 (Cal. App. 4th 203 Dist. 1993) (holding that the city that was entitled to design Breed v. Shaner, 57 Haw. 656, 668, 562 P.2d 436, 443 immunity for a bridge also could not be held liable for failing to (1977); Stewart v. State, 92 Wash. 2d 285, 597 P.2d 101 (1979) warn that the design was dangerous) and Alvarez v. State, 79 (involving alleged defective lighting and improper design of a Cal. App. 4th 720, 738, 95 Cal. Rptr. 2d 719, 732 (Cal. App. 5th bridge), overruled in part on other grounds, Crossen v. Skagit Dist. 1999) (affirming a grant of a summary judgment for the County, 100 Wash. 2d 355, 669 P.2d 1244 (1983). 204 State in a case involving the plaintiff's claim that the absence Stewart v. State, 92 Wash. 2d at 293, 597 P.2d at 106. of a median barrier constituted a dangerous condition). See also Ruff v. County of King, 125 Wash. 2d 697, 887 P.2d 211 City of St. Petersburg v. Collom, 419 So. 2d 1082, 1086 886 (1995) (reinstating a trial court's grant of summary judg- (Fla. 1982); see also Clarke v. Fla. Dep't of Transp., 506 So. 2d ment in favor of the county). 205 24 (Fla. 1st DCA 1987); Greene v. State, Dep't of Transp., 465 WASH. REV. CODE ANN. 4.92.090. So. 2d 560 (Fla. 1st DCA 1985); and State Dep't of Transp. v. 206 Stewart v. State, 92 Wash. 2d at 294, 597 P.2d at 106. Brown, 497 So. 2d 678 (Fla. 4th DCA 1986), review denied, 504 207 Id. So. 2d 766 (Fla. 1987).

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19 volving a bicycle accident but not on a bikeway.212 The D3. Design Immunity Statutes 15-yearold plaintiff, while riding his bicycle at night In addition to a discretionary function exemption in without a headlight against the flow of traffic on a their tort claims acts, a few states have a statutory pro- newly widened section of a city road, tumbled into a vision granting immunity specifically for claims arising ditch perpendicular to the road.213 The ditch was located out of an approved plan or design of a public improve- on private property at the boundary of the improved ment. In California, for example, a public entity is im- section of the road,214 but there were no warnings or mune from liability for an injury caused by the plan or barriers that indicated the presence of the ditch.215 Colo- design of a public project that was approved in advance rado's Governmental Immunity Act (GIA)216 by a public body or employee exercising discretionary provide[d] that a person injured because of the dangerous authority to give approval if there were any substantial condition of a public roadway may not recover against the evidence upon which a reasonable employee or public governmental agency that owns the roadway when the body could have approved the plan or design.226 For a cause of the dangerous condition is not due to negligent public entity to have design immunity, it must establish maintenance or construction by the governmental agency. It also prohibits recovery when the danger to the public that there was a causal relationship between the plan posed by the condition is due solely to inadequate de- or design and the accident; that there was discretionary sign. 217 approval of the plan or design prior to construction; and that there was substantial evidence supporting the rea- The court held that the city was immune under the sonableness of the adoption of the plan or design.227 As GIA.218 First, the failure to "maintain" means only "a for approval, it has been held that a detailed plan failure to restore a roadway to the state in which it was drawn up by a competent engineering firm and ap- originally constructed."219 Accordingly "[b]ecause the proved by the city engineer in the exercise of his discre- roadway remained unchanged, the City did not repair tionary authority is "persuasive evidence" of the ele- the roadway, and is immune from any claims of negli- ment of prior approval.228 Although the California gence for allowing the condition to exist."220 Second, the statute invites the court to consider whether approval city was immune under the GIA to claims for inade- of the plan or design by the public body was reasonable, quate design, and "the danger posed by the roadway's the New Jersey design immunity statute simply re- abrupt transition at the ditch was attributable solely to quires approval by one exercising discretionary author- design."221 That is, the ditch was a physical feature that ity to give such approval.229 was part of the design of the improved roadway.222 Al- Even in states having a design immunity statute, the though the court was critical of the city's failure to pre- statute may not provide necessarily for immunity in vent a bicycle accident that "was readily predictable every situation involving an allegedly defectively de- and could have been easily avoided," the city, neverthe- signed project. It has been held that there may be an less, had immunity under the GIA, even if the city were exception to design immunity if a public improvement negligent in failing to consider the physical features in 223 in actual use has a design feature that was not ap- the design of the improved roadway. The GIA also 230 proved in the overall plan or design. Second, a state "preclude[d] liability for a public entity's failure to post signs on a public highway."224 In sum, the court held 225 that the city had immunity. that in Colorado it is the development of a dangerous condition of a public highway, subsequent to the initial design and con- 212 struction of the highway, that creates a duty on the part of the 934 P.2d 1380 (Colo. 1997). state to return the road to "the same general state of being, 213 Id. at 1382. repair, or efficiency as initially constructed") (internal quota- 214 Id. tion marks omitted) (citation omitted)). 215 226 Id. at 1383. CAL. GOV'T CODE 830.6. 216 227 10A COLO. REV. STAT. 24-10-101120 (1988). Cornette v. Dep't of Transp., 26 Cal. 4th 63, 66, 26 P.3d 217 934 P.2d at 1382. 332, 334 (Cal. 2001); Higgins v. State, 54 Cal. App. 4th 177, 218 184, 62 Cal. Rptr. 2d 459, 464 (Cal. App. 4th Dist. 1997). 10A COLO. REV. STAT. 24-10-103(1). 228 219 Grenier v. City of Irwindale, 57 Cal. App. 4th 931, 940, 934 P.2d at 1385. 220 67 Cal. Rptr. 2d 454, 459 (Cal. App. 2d Dist. 1997). Id. at 1386. 229 221 N.J. STAT. ANN., tit. 59 4-6 (2009), stating: Id. 222 Neither the public entity nor a public employee is liable un- Id. at 1387. der this chapter for an injury caused by the plan or design of 222 Id. public property, either in its original construction or any im- 223 Id. provement thereto, where such plan or design has been ap- 224 proved in advance of the construction or improvement by the Id. Legislature or the governing body of a public entity or some 225 See also Estate of Grant v. State, 181 P.3d 1202, 1207 other body or a public employee exercising discretionary author- (Colo. Ct. App. 2008) (stating that "[i]f the state undertakes an ity to give such approval or where such plan or design is pre- upgrade and follows a certain design, any inadequacies that pared in conformity with standards previously so approved. 230 may result from that design do not waive immunity simply In Cameron v. State, 7 Cal. 3d 318, 102 Cal. Rptr. 305, because there previously may have been a safer design avail- 326, 497 P.2d 777, 782 (Cal. 1972), the design plans contained able"); Medina v. State, 35 P.3d 443, 448 (Colo. 2001) (holding no specification of the uneven super-elevation as the highway