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Liability Aspects of Bikeways (2010)

Chapter: SECTION V. IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION

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Suggested Citation:"SECTION V. IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION V. IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION V. IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION V. IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION V. IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION V. IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION V. IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION V. IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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13 jurisdictions that have not enacted tort claims acts ap- plicable to municipalities. In Augustine v. City of West Memphis,122 the plaintiff was injured while riding her bicycle when city employ- ees were cutting tree limbs, one of which fell and struck her. The plaintiff alleged that the employees were act- ing in a “proprietary capacity.”123 The plaintiff alleged that the defendants (a) failed to have warning devices in the area where the limbs were being cut, (b) failed to warn the plaintiff and other persons of the dangerous activities in and about the truck, (c) cut limbs that would fall in the traveled path of the street, and (d) failed to block off traf- fic in the area where the tree limbs would fall.124 The court agreed with the city that under the state’s former law the city had been “acting in a governmental capacity” at the time of the accident.125 The court also observed that “the former distinction between govern- mental and proprietary actions was abolished by Act 165 of 1969, which declared the state’s public policy to be that municipal corporations and other political sub- divisions shall be immune from liability in tort.”126 In Hillerby v. Town of Colchester,127 the plaintiff was riding his bicycle across a grassy area in the town when a manhole cover that he was crossing collapsed.128 The trial court “abandoned the established governmen- tal/proprietary distinction in favor of the private-analog test, a test used to determine the liability of the State in tort actions.”129 The Supreme Court of Vermont, in re- sponding to questions certified to it regarding the issue of the proprietary/governmental distinction in munici- pal tort liability, held that whether the traditional gov- ernmental/proprietary approach should be abrogated was a matter for the legislature to decide.130 The court stated, however, that the “courts have held municipali- ties liable only where the negligent act arises out of a duty that is proprietary in nature as opposed to gov- ernmental.”131 The court, furthermore, observed that Vermont is in the minority of states that continue to follow the governmental/proprietary test of municipal liability132 but stated that the decision whether to aban- don or alter the law was a matter for the legislature, not the court, to decide.133 In sum, the clear trend is that municipal corpora- tions are subject to tort claims legislation and the prin- ciples discussed herein rather than the former govern- 122 281 Ark. 162, 662 S.W.2d 813 (1984). 123 Id. at 163, 662 S.W.2d at 814. 124 Id. 125 Id. 126 Id. (citing ARK. STAT. ANN. § 12-2901 (Repl. 1979)). 127 167 Vt. 270, 706 A.2d 446 (1997). 128 Id. at 272, 706 A.2d at 446. 129 Id. 130 Id. at 273, 706 A.2d at 447. 131 Id. at 272, 706 A.2d at 447. 132 Id. 133 Id. at 274, 706 A.2d at 448. mental-proprietary test of tort liability of municipal corporations. SECTION V. IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION A. The Meaning of the Discretionary Function Exemption The primary defense to a public entity’s tort liability for negligent design, construction, and maintenance is based on the doctrine now codified in nearly all state tort claims acts: certain actions undertaken by govern- ments are “discretionary” in nature, and, therefore, are immune from liability. Because judgment, choice, or discretion is present in virtually all human activity, the issue becomes one of trying to distinguish between dis- cretionary and nondiscretionary actions within the meaning of the exemption from liability. Although the courts have attempted to provide guidance, they have had difficulty defining what qualifies as discretionary activity.134 The state courts tend to follow one of three ap- proaches in construing their own public tort claims acts having a discretionary function exemption. The ap- proaches are derived principally from the United States Supreme Court’s decisions in Dalehite v. United States,135 Indian Towing Co. v. United States,136 United States v. Varig Air Lines,137 and United States v. Gaubert,138 all of which involved claims asserted under the Federal Tort Claims Act (FTCA). Even if a state tort claims act does not have an ex- emption for discretionary action, some courts have held that the state and its agencies are still immune for their decisions that are discretionary in nature, as long as the decision-making involves the evaluation of broad policy factors and considerations.139 134 Federal cases are collected in “Claims Based on Con- struction and Maintenance of Public Property as within Provi- sion of 28 U.S.C. 2680(a) Excepting from Federal Tort Claims Act Claims involving ‘Discretionary Function or Duty,’” 37 A.L.R. Fed. 537. 135 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), reh’g denied, 346 U.S. 841, 880, 74 S. Ct. 13, 117, 98 L. Ed. 362, 386, 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, 1188 N 5 (D. N.J. 1994). 136 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955). 137 United States v. S. A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984), reh’g denied, United States v. United Scottish Ins. Co., 468 U.S. 1226, 105 S. Ct. 26, 82 L. Ed. 2d 919 (1984), on remand, S.A. Empresa de Viacao Aerea Rio Gran- dense (Varig Airlines) v. United States, 744 F.2d 1387 (9th Cir. 1984). 138 499 U.S 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991), on remand, 932 F.2d 376 (5th Cir. 1991). 139 Miotke v. Spokane, 101 Wash. 2d 307, 335, 678 P.2d 803, 819 (1984) (stating that in Evangelical United Brethren Church v. State, 67 Wash. 2d 246, 407 P.2d 440 (1965), the

14 In Dalehite, the Supreme Court held that govern- ment decisions that are made at a “planning rather than operational level” involve the exercise of discretion within the meaning of the discretionary function ex- emption and therefore are exempt from liability.140 In Indian Towing, the Court held that once the gov- ernment makes a decision at the planning or policy level, the discretion is exhausted and any negligence thereafter in implementing the decision is not protected by the exemption.141 In Varig Air Lines, the Court rejected the argument that planning-level activities may take place only at the highest levels of government. However, for decisions at the planning level to qualify for the exemption from liability, the decisions had to have been grounded on considerations of “social, economic, and political pol- icy.”142 Nevertheless, the Varig decision reaffirmed Dalehite’s planning-operational test.143 In 1991, in United States v. Gaubert,144 the Supreme Court held that there is no distinction between plan- ning- and operational-level actions.145 For example, if a government regulation allows a government employee to exercise discretion, then “the very existence of the regulation creates a strong presumption that a discre- tionary act authorized by the regulation involves con- sideration of the same policies which led to the promul- gation of the regulations.”146 Moreover, the Court held that “it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.”147 Under Gaubert, it is not the status or level of the gov- ernmental actor that determines whether the discre- tionary exemption applies; rather, it is the nature of the conduct or decision-making. In Gaubert, the Court made it clear that the exercise of immune discretion is not confined to the so-called policy or planning level. The Gaubert Court expanded the area of discretionary immunity beyond that exer- cised at the so-called planning level. The Court re- viewed its prior precedents in Dalehite and Varig Air- court created a narrow exception to governmental immunity from tort liability in instances when officials engage in discre- tionary acts in accordance with a 4-part inquiry). 140 346 U.S. at 42, 73 S. Ct. at 971, 97 L. Ed. 1444. 141 350 U.S. at 69, 76 S. Ct. at 126, 100 L. Ed. at 56. 142 467 U.S. at 814, 104 S. Ct. at 2765, 81 L. Ed. 2d at 674. 143 See Ala. Elec. Coop., Inc. v. United States, 769 F.2d 1523, 1527–28 (11th Cir. 1985) (stating that “Varig Airlines supports the planning/operational distinction developed by the lower courts in cases subsequent to Dalehite” and adding that plan- ning level decisions are those that involve “the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy,” whereas operational level decisions are those involving “normal day-by-day operations of the government”). 144 499 U.S. 315,111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991), on remand, 932 F.2d 376 (5th Cir. 1991). 145 Id. at 324, 111 S. Ct. at 1274, 113 L. Ed. 2d at 347–48. 146 Id. 147 Id. at 324, 111 S. Ct. at 1274, 113 L. Ed. 2d at 348. lines and summarized by category when a federal em- ployee’s actions are discretionary and therefore immune from liability, as well as when the employee’s actions do not involve the exercise of discretion and are not im- mune. First, “[u]nder the applicable precedents…if a regu- lation mandates particular conduct, and the employee obeys the direction, the Government will be protected because the action will be deemed in furtherance of the policies which led to the promulgation of the regula- tion….”148 Second, “[i]f the employee violates [a] mandatory regulation, there will be no shelter from liability be- cause there is no room for choice and the action will be contrary to policy.”149 Third, “if a regulation allows the employee discre- tion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regula- tions.”150 In sum, since the Gaubert decision, the test under the FTCA for determining whether a decision is pro- tected by the discretionary function exemption is not the level of the decision-maker but rather the discre- tionary nature of the decision itself. B. The Meaning of the Discretionary Function Exemption in State Tort Claims Acts As discussed below, it appears that a majority of state courts follow the Dalehite approach, some follow the Indian Towing approach, and a smaller number of state courts have chosen to follow the Gaubert approach in construing a state tort claims act’s discretionary function exemption.151 In Johnson v. State,152 a pre-Gaubert case, the Cali- fornia Supreme Court pointed out that a distinction between the words “discretionary” and “ministerial” 148 Id. at 324, 111 S. Ct. at 1274, 113 L. Ed. 2d at 347. 149 Id. (emphasis supplied). 150 Id. 151 Johnson v. Dep’t of Transp., 2004 UT App 284, *P22 N 4, 98 P.3d 773, 780 N 4 (Utah App. 2004) (stating that a “decision to allow the lane adjacent to the cutouts to remain open at night was clearly not a discretionary function since the deci- sion was made by a UDOT on-site inspector who acts at the operational level” and following Trujillo v. Utah Dep’t of Transp., 1999 Utah App. 227, 986 P.2d 752, 760 N 2 (Utah 1999) (rejecting the Gaubert analysis, holding that the U.S. Supreme Court’s interpretation of the discretionary function exemption in the FTCA was not binding on Utah’s interpreta- tion of its tort claims act, and ruling that the court would con- tinue to follow the planning/operational dichotomy)). 152 69 Cal. 2d 782, 73 Cal. Rptr. 240, 447 P.2d 352 (1968). In Johnson the plaintiff sought damages from the State for its failure to give adequate warning of the homicidal tendencies of a 16-year-old youth who the State had placed in a foster home. In holding that the State was not immunized by the above provision of the statute, the court rejected a semantic approach to the applicability of the discretionary function exception.

15 based on linguistics or lexicography would not work, because virtually all ministerial activity involves the exercise of discretion. The court stated that the purpose of the statutory provision for discretionary immunity was to assure “judicial abstention in areas in which the responsibility for basic policy decisions has been com- mitted to coordinate branches of government.”153 The court held that the statutory provision for discretionary immunity related exclusively to determinations made by a coordinate branch of government that involve basic policy decisions, thus following the decisions in Dalehite and Varig Airlines.154 Although many state courts have not adopted the U.S. Supreme Court’s approach in Gaubert,155 the Dis- trict of Columbia Court of Appeals follows the Gaubert analysis concerning what kind of decision-making is discretionary. For example, in Aguehounde v. District of Columbia,156 involving a claim by a pedestrian struck at an intersection controlled by a traffic signal, the court held that the setting of signal lights was an exercise of discretion. The Court of Appeals, citing prior precedent in the District of Columbia, observed that when “an employee fails to follow an established policy, because the existence of a set policy means that all discretion has been removed from the employee, …the employee’s actions would…be ministerial.”157 After “[f]inding that the setting of yellow intervals is a discretionary func- tion,”158 the court next turned to the question of whether there was a specific or mandatory directive for employ- ees to follow in setting the timing interval.159 The court, finding none, concluded that the employees were exer- cising discretion and that any alleged mismeasurement at the intersection by the District’s employees that may 153 Id. at 793, 73 Cal. Rptr. at 360, 447 P.2d at 248 (empha- sis in original). 154 69 Cal. 2d at 793, 795, 73 Cal. Rptr. at 360, 361, 447 P.2d at 248, 249. See also Fortenbacher v. Commonwealth, 72 Mass. 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- tions involving a highway was the exercise of a discretionary function under the state’s torts claim act), cert. denied, 958 So. 2d 1232 (Miss., June 14, 2007). 155 Trujillo v. Utah Dep’t of Transp., 1999 Ut. App. 227, 986 P.2d 752 (1999); Tseu ex rel. Hobbs v. Jeyte, 88 Haw. 85, 90, 962 P.2d 344, 349 (1998); and Rick v. State Dep’t of Transp. & Dev., 630 So. 2d 1271 (La. 1994), overruled on other grounds, Long v. State, 916 So. 2d 87, 101–02 (La. 2005). 156 666 A.2d 443 (D.C. App. 1995). See also Tucci v. District of Columbia, 956 A.2d 684, 691 (D.C. Ct. App. 2008) (stating that the court had previously rejected an “attempt to blur the distinction between discretionary and ministerial functions by ‘isolating each component of a decision’” and citing Ague- hounde, supra.) 157 666 A.2d at 450. 158 666 A.2d at 451. 159 Id. have contributed to an improper traffic light setting was irrelevant.160 Some state courts continue to apply the planning- operational test of discretion, sometimes without even mentioning the later Gaubert case;161 however, in Trujillo v. Utah Dep’t of Transportation,162 the Supreme Court of Utah expressly declined to embrace the Gaubert decision. In Trujillo, the court ruled that the transportation department’s formulation of a traffic control plan to use barrels rather than barriers at an accident location was not a policy-level decision.163 Moreover, the court held that the failures to reduce speed in a construction zone as called for in the con- struction plan, to investigate accidents, or to consider corrective action in response to notice of a dangerous condition were all operational-level activities.164 Another court has stated that if the “work involved no marshal- ing of state resources, no prioritizing of competing needs, no planning, and no exercise of policy-level dis- cretion,” then the activity is likely to be held to be op- erational in nature.165 In Tseu ex rel. Hobbs v. Jeyte,166 the court stated that it had never adopted the reasoning in Gaubert, and it would be “directly contrary to its pre- vious holdings on the discretionary function exception under Hawaii law to do so.”167 Guidance It is widely held under tort claims acts that public en- tities are not liable for negligence committed in the exer- cise of their discretion. Although the rationale of the Supreme Court’s decision in United States v. Gaubert, supra, is more favorable to public entities and allows for immune discretion to be exercised at all levels of a pub- lic entity’s decision-making, including at the so-called operational level, the majority of courts appears to ad- here to the rationale that the only exercise of discretion that is discretionary and therefore is immune from li- ability is that discretion that is exercised at the policy or planning level. 160 Id. 161 Taylor-Rice v. State, 979 P.2d 1086, 1104 (Haw. 1999) (failure to replace a guardrail was operational-level act with no mention of Gaubert); State v. Livengood, 688 N.E.2d 189, 196 (Ind. App. 1st Dist. 1997) (design and installation of replace- ment of a portion of a guardrail to comply with a safety stan- dard was operational-level task and not immune); and Schroe- der v. Minnesota, 1998 Minn. App. LEXIS 1436 (1998) (Unrept.) (decision to patch pavement where it met a bridge was an operational-level activity). 162 1999 Ut. App. 227, 986 P.2d 752 (Utah 1999). 163 Id. at *P33, 986 P.2d at 762. 164 Id. at *P34, 986 P.2d at 762. 165 Defoor v. Evesque, 694 So. 2d 1302, 1306 (Ala. 1997). 166 Tseu ex rel. Hobbs v. Jeyte, 88 Haw. 85, 962 P.2d 344 (1998). 167 Id. at 89, 962, P.2d at 348.

16 C. The Discretionary Function Exemption and Bikeway Claims Against Public Entities In regard to bicycle accidents and the effect of the discretionary function exemption, there are cases hold- ing that the exemption applies, or that a trial is re- quired to determine whether the exemption applies, or that the exemption does not apply. Some cases hold that a public entity, if challenged, must be able to prove that it exercised its discretion before making a decision, that the discretion it exercised involved policy consid- erations, or that the public entity consciously balanced the risks and benefits of the proposed decision. For example, in Hanson v. County of Vigo,168 a vehi- cle struck the young plaintiff while she was riding her bicycle in an intersection.169 The county board had ap- proved a plan for the placement and replacement of signs on county roads; however, the board approved the plan without deliberation.170 In applying the Indiana Tort Claims Act, in particular the discretionary func- tion exemption, IC–34.4-16.5-3, the court stated that it applied the “‘planning-operational’ standard.”171 Hanson conceded that Vigo’s decision to place and replace signs at intersections was a discretionary function and there- fore immune but argued that the county had been neg- ligent in the implementation of the decision, in particu- lar “for failing to prioritize placement at unmarked intersections prior to replacing signs at intersections which were currently unmarked.”172 The county failed to introduce evidence “proving that implementation of the plan had been considered by the Board” or that the Board “consciously balance[ed] risks and benefits of the Board’s decision.”173 Rather, “it was the county engineer who decided how to implement the Board’s plan…but his actions did not rise to the level of executive judg- ments that should be afforded protection under the gov- ernmental immunity doctrine.”174 The court remanded the case for a “determination of whether the Board en- gaged in a decision-making process regarding the im- plementation of the sign plan” and whether “the im- plementation decision resulted from a conscious balancing of risks and benefits.”175 In Schmitz v. City of Dubuque,176 the plaintiff was in- jured when the front wheel of her bicycle caught the edge of an asphalt overlay on a designated bicycle and 168 659 N.E.2d 1123 (Ind. App. 4th Dist. 1996). 169 Id., 659 N.E.2d at 1125. 170 Id. See also Madden v. Ind. Dep’t of Transp., 832 N.E.2d 1122, 1128 (Ind. App. 3d Dist. 2005) (stating that “nor may we find discretionary function immunity based solely on testimony by a representative of the governmental entity that meetings were held, without written documentation of the meetings”). 171 Id. 172 Id. at 1126. 173 Id. 174 Id. (emphasis supplied) (citation omitted). 175 Id. at 1127. 176 682 N.W.2d 70 (Iowa 2004). walking trail in Dubuque.177 The court reversed the trial court’s dismissal of the case on the basis that the city had immunity.178 The plaintiff alleged that the city was negligent in the design, construction, and maintenance of the trail built in 1973 or 1974.179 The city had overlaid the deteriorated surface of the trail with another layer of asphalt in 1991; however, the city did not raise the shoulders of the trail, the plaintiff’s principal claim of negligence.180 Although AASHTO standards for the con- struction of such trails that discourage construction with a drop-off were not published when the trail was built originally, the AASHTO standards were in effect in 1991 when the asphalt overlay was added.181 The issue was whether the city’s action was pro- tected by the discretionary function exemption in the Iowa Code that was applicable to the liability of cities.182 The court held that the functions alleged to have been performed negligently in regard to the bike trail were entitled to immunity, because they involved “‘policy formation, as distinguished from the day-to-day activi- ties of persons not engaged in determining the general nature of the Government’s business….’”183 The court observed that “[o]ur cases have held that liability under tort claims acts is the rule and immunity is the excep- tion.”184 However, “before immunity attaches there must be some form of considered decision, that is, one which balances risk and advantages.”185 The court held that the city had not met its burden to establish that it had immunity, because “the city produced no evidence that the choice it made with respect to whether the overlay should be done with or without grading of the accompa- nying shoulders was the sort of decision that the discre- tionary function immunity intends to protect, i.e., a decision weighing ‘social, economic, or political poli- cies.’”186 The court remanded the case, without regard to the city’s claim of immunity, for proceedings on the merits of the plaintiff’s claims.187 In Angell v. Hennepin County Regional Rail Author- ity,188 the plaintiff, who veered off a paved public trail onto a dirt path that appeared to be well traveled, was injured when she biked off a loading dock at the end of the dirt path.189 The court had to determine whether the discretionary function exemption of the Minnesota tort claims act applied to the authority, which was a local 177 Id. at 71. 178 Id. 179 Id. 180 Id. 181 Id. 182 Id. 183 Id. at 73 (quoting Downs v. United States, 522 F.2d 990, 996 (6th Cir. 1975)). 184 Id. at 74. 185 Id. (citation omitted). 186 Id. at 76 (citation omitted). 187 Id. 188 578 N.W.2d 343 (Minn. 1998). 189 Id. at 344.

17 governmental unit and a political subdivision of the state. The question was whether the authority was ex- ercising discretion or was engaged only in operational activity when it “failed to restrict access to the Hopkins corridor and failed to block off the loading dock or to warn of its presence….”190 The court held that the record did not show that the authority’s failures were based on “policy decisions involving economic, political, and so- cial factors;”191 but rather, because the authority’s fail- ures were nothing more “than technical and profes- sional evaluations” (discussed in the opinion), the authority was not entitled to immunity.192 In sum, a public entity should have immunity for al- leged negligence committed at the planning level under either a United States v. Dalehite or a United States v. Gaubert type of analysis of the discretionary function exemption of a state’s or locality’s tort claims act. Guidance Although a public entity usually is immune for al- leged negligence committed in the exercise of its discre- tion at the policy or planning level, it is clear that some courts require that there be a showing that a public en- tity, in fact, exercised its discretion. In the Hanson case, supra, the court remanded the case for a determination of whether the public entity’s board had engaged in a decision-making process and consciously balanced the risks and benefits concerning a proposed plan for the placement and replacement of signs on county roads. Another appellate court deciding the issue may not have allowed the public entity a second chance to offer proof that it actually had exercised its discretion. It is sug- gested that public entities maintain records of their de- cision-making with respect to bikeways and their safety and condition, so that there will be evidence on the part of the public entity that there was an actual exercise of the entity’s discretion at the time of any decision- making. D. Immunity for Negligent Design Based on a Statutory Exemption for Discretionary Activity D1. Immunity for the Design of Highways and Bikeways If there is one area of government activity that gen- erally is considered to be immune as a protected exer- cise of discretion, it is the one of the design of highways and bikeways. Whether pre- or post-Gaubert, there are numerous examples of governmental actions that have been held to be discretionary, including the approval of designs and specifications,193 the decision to adhere to a 190 Id. at 347. 191 Id. 192 Id. at 348. 193 Delgadillo v. Elledge, 337 F. Supp. 827 (E.D. Ark. 1972) (approval of designs and specifications was discretionary and, therefore, immune); Hughes v. County of Burlington, 99 N.J. Super. 405, 240 A.2d 177 (1968) (decision to omit emergency shoulders), cert. denied, 51 N.J. 575, 242 A.2d 379 (1968); Fitz- former design during reconstruction,194 and decisions whether to use barriers195 or how to set speed limits.196 The public entities that responded to the survey did not report any bikeway claims involving negligent design and thus did not report any instances when they had been held liable for the negligent design of a bikeway. No cases were located in which a public entity had been held liable for the negligent design of a bikeway. With respect to liability for the negligent design of public improvements, the discretionary function exemp- tion in the FTCA was held to preclude the liability of the United States for a bridge design in Wright v. United States.197 Similarly, in Summer v. Carpenter,198 the Supreme Court of South Carolina held that under South Carolina law, “[a]s for negligent design, the [South Carolina Tort Claims] Act provides absolute governmental immunity from liability for loss resulting from the design of highways and other public ways.”199 In the Summer case, the court held that the department would be immune even if it had been on notice that the design of the intersection was dangerous.200 Other cases have found that a public entity had design immunity for various reasons.201 However, design immunity only ap- gerald v. Palmer, 47 N.J. 106, 219 A.2d 512 (1966) (decision by the State not to design its overpasses with wire fences). 194 Richardson v. State, Dep’t of Roads, 200 Neb. 225, 263 N.W.2d 442 (1978), supp. op., 200 Neb. 781, 265 N.W.2d 457 (1978). See also Maresh v. State, 241 Neb. 496, 518, 489 N.W.2d 298, 314 (1992) (holding that design decisions are dis- cretionary but that the “failure to warn would be actionable, as it embodies no discretionary functions, and the doctrine of state immunity does not apply”). 195 Alvarez v. State, 79 Cal. App. 4th 720, 738–39, 95 Cal. Rptr. 2d 719, 732–33 (Cal. App. 5th Dist. 1999) (design immu- nity not lost because of an absent barrier, although approved for eventual installation because of higher traffic volume) and Higgins v. State, 54 Cal. App. 4th 177, 62 Cal. Rptr. 2d 459 (1997) (upheld immunity for a barrier because it was a design decision). 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 Cal. LEXIS 6287 (Cal. Sept. 12, 2001). 197 568 F.2d 153, 158 (10th Cir. 1977) (stating that the gov- ernment “was engaged in a ‘discretionary function’ when it determined to aid and assist the State of Utah in the construc- tion of the bridge and approach roads….”), cert. denied, 439 U.S. 824, 99 S. Ct. 94, 58 L. Ed. 2d 117 (1978). 198 328 S.C. 36, 43, 492 S.E.2d 55, 58 (1997), reh’g denied (Oct. 21, 1997). 199 Id. 200 Id. 201 Laabs v. City of Victorville, 163 Cal. App. 4th 1242, 1267, 78 Cal. Rptr. 3d 372, 393 (Cal. App. 4th Dist. 2008) (holding that with respect to the city’s placement of a luminaire too close to the roadway, summary judgment for the city was proper as the evidence established that the city had design immunity as a matter of law), modified and rehearing denied, 2008 Cal. App. LEXIS 995 (Cal. App. 4th Dist. July 7, 2008); Florida Dep’t of Transp. v. Allen, 768 So. 2d 496, 497 (Fla. 4th DCA 2000) (holding that denial of defendant’s motion for a summary judgment was error because before the government’s

18 plies to “a design-caused” accident. Design immunity does not immunize decisions that were not made; “the injury-producing feature must have been a part of the plan approved by the governmental entity” for design immunity to be applicable.202 Only those aspects of design activity that involve broad policy considerations come within the ambit of the discretionary function exemption.203 The Supreme Court of Washington has stated that discretionary im- munity is “an extremely limited exception”204 to the gen- eral withdrawal of state tort immunity by the legisla- ture.205 The court identified decisions that involve broad policy considerations that qualify for discretionary im- munity, for example, the “decisions to build the free- way, to place it in this particular location so as to ne- cessitate crossing the river, [and] the number of lanes….”206 However, for a public entity to be immune, it must show “that it considered the risks and advantages of these particular designs, that they were consciously balanced against alternatives, taking into account safety, economics, adopted standards, recognized engi- neering practices and whatever else was appropriate.”207 There are cases, moreover, in which the courts have held that public entities could not claim immunity be- cause there was inadequate study of a plan or design or sovereign immunity is waived, “there must be a known hazard so serious and so inconspicuous to a foreseeable plaintiff that it virtually constitutes a trap,” which the intersection in question was not), review denied, 789 So. 2d 343 (Fla. 2001); Higgins v. State, 54 Cal. App. 4th 177, 187–88, 62 Cal. Rptr. 2d 459, 465– 66 (Cal. App. 4th Dist. 1997) (evidence established that the absence of a median barrier was a design choice made by the State and that there were no “changed circumstances” to defeat the State’s immunity); Shand Mining, Inc. v. Clay County Bd. of Comm’rs, 671 N.E.2d 477, 480 (Ind. App. 1st Dist. 1996) (holding that the county was entitled to immunity under a statutory provision dealing with a loss caused by the design of a highway if the loss occurs at least 20 years after the highway was designed when there was no evidence that the county had altered or redesigned the highway since then), reh’g denied (Feb. 13, 1997); and Cygler v. Presjack, 667 So. 2d 458, 461 (Fla. 4th DCA 1996) (affirming a summary judgment for the department and holding that the government was not liable for failing to provide a traffic regulating or separating device or barrier). 202 Grenier v. City of Irwindale, 57 Cal. App. 4th 931, 940– 41, 67 Cal. Rptr. 2d 454, 459 (2d Dist. 1997). 203 Breed v. Shaner, 57 Haw. 656, 668, 562 P.2d 436, 443 (1977); Stewart v. State, 92 Wash. 2d 285, 597 P.2d 101 (1979) (involving alleged defective lighting and improper design of a bridge), overruled in part on other grounds, Crossen v. Skagit County, 100 Wash. 2d 355, 669 P.2d 1244 (1983). 204 Stewart v. State, 92 Wash. 2d at 293, 597 P.2d at 106. See also Ruff v. County of King, 125 Wash. 2d 697, 887 P.2d 886 (1995) (reinstating a trial court’s grant of summary judg- ment in favor of the county). 205 WASH. REV. CODE ANN. § 4.92.090. 206 Stewart v. State, 92 Wash. 2d at 294, 597 P.2d at 106. 207 Id. because the approval of a plan or design was arbitrary or unreasonable.208 In sum, under either a United States v. Dalehite or a United States v. Gaubert type of analysis, the majority view is that the planning and designing of highways and bikeways come within the meaning of the discre- tionary function exemption of tort claims acts for which a public entity subject to the act has immunity for al- leged negligence. Guidance As explained in the next sections, although alleged negligence in the planning and designing of highways and bikeways may be protected from liability as an exer- cise of discretion, there are still some exceptions to im- munity of which a public entity should be aware. D2. Effect of Known Dangerous Conditions on Design Immunity Although design immunity is recognized generally, some courts have held that there is an exception to de- sign immunity if the public entity had notice209 of a dan- gerous condition of a public improvement because of its design and failed to take appropriate action.210 In such a case, the court may hold that the public entity had a 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 Colorado case, Swieckowski v. City of Fort Collins, in- 208 Romeo v. New York, 1997 N.Y. Misc. LEXIS 576, at *9 (N.Y. Ct. Cl. 1997) (Unrept.) (holding that the State failed to conduct an adequate study of an intersection); but see Redcross v. State, 241 A.D. 2d 787, 789–90, 660 N.Y.S.2d 211, 213–14 (N.Y. App. 3d Dep’t 1997) (holding that the placement of a pedestrian control button was not plainly inadequate or lack- ing a reasonable basis), appeal denied, 91 N.Y.2d 801, 669 N.E.2d 533, 689 N.E.2d 533, 666 N.Y.S.2d 563 (1997). 209 If a dangerous condition was not of the State’s own mak- ing, it must have had actual or constructive notice and a rea- sonable opportunity to take remedial action with respect thereto; however, it has been held that when the dangerous condition was of the State’s own making, notice was not re- quired. Johnson v. State, 636 P.2d 47, 52 (Alaska 1981). 210 Thompson v. Coates, 694 So. 2d 599 (La. App. 2d Cir. 1997), cert. denied, 701 So. 2d 987 (La. 1997) (stating that the design of a highway causing hydroplaning may result in a dan- gerous condition). Compare Compton v. City of Santee, 12 Cal. App. 4th 591, 600, 15 Cal. Rptr. 2d 660, 665 (Cal. App. 4th Dist. 1993) (holding that the city that was entitled to design immunity for a bridge also could not be held liable for failing to warn that the design was dangerous) and Alvarez v. State, 79 Cal. App. 4th 720, 738, 95 Cal. Rptr. 2d 719, 732 (Cal. App. 5th Dist. 1999) (affirming a grant of a summary judgment for the State in a case involving the plaintiff’s claim that the absence of a median barrier constituted a dangerous condition). 211 City of St. Petersburg v. Collom, 419 So. 2d 1082, 1086 (Fla. 1982); see also Clarke v. Fla. Dep’t of Transp., 506 So. 2d 24 (Fla. 1st DCA 1987); Greene v. State, Dep’t of Transp., 465 So. 2d 560 (Fla. 1st DCA 1985); and State Dep’t of Transp. v. Brown, 497 So. 2d 678 (Fla. 4th DCA 1986), review denied, 504 So. 2d 766 (Fla. 1987).

19 volving a bicycle accident but not on a bikeway.212 The 15-year–old plaintiff, while riding his bicycle at night without a headlight against the flow of traffic on a newly widened section of a city road, tumbled into a ditch perpendicular to the road.213 The ditch was located on private property at the boundary of the improved section of the road,214 but there were no warnings or barriers that indicated the presence of the ditch.215 Colo- rado’s Governmental Immunity Act (GIA)216 provide[d] that a person injured because of the dangerous condition of a public roadway may not recover against the governmental agency that owns the roadway when the cause of the dangerous condition is not due to negligent maintenance or construction by the governmental agency. It also prohibits recovery when the danger to the public posed by the condition is due solely to inadequate de- sign.217 The court held that the city was immune under the GIA.218 First, the failure to “maintain” means only “a failure to restore a roadway to the state in which it was originally constructed.”219 Accordingly “[b]ecause the roadway remained unchanged, the City did not repair the roadway, and is immune from any claims of negli- gence for allowing the condition to exist.”220 Second, the city was immune under the GIA to claims for inade- quate design, and “the danger posed by the roadway’s abrupt transition at the ditch was attributable solely to design.”221 That is, the ditch was a physical feature that was part of the design of the improved roadway.222 Al- though the court was critical of the city’s failure to pre- vent a bicycle accident that “was readily predictable and could have been easily avoided,” the city, neverthe- less, had immunity under the GIA, even if the city were negligent in failing to consider the physical features in the design of the improved roadway.223 The GIA also “preclude[d] liability for a public entity’s failure to post signs on a public highway.”224 In sum, the court held that the city had immunity.225 212 934 P.2d 1380 (Colo. 1997). 213 Id. at 1382. 214 Id. 215 Id. at 1383. 216 10A COLO. REV. STAT. §§ 24-10-101–120 (1988). 217 934 P.2d at 1382. 218 10A COLO. REV. STAT. § 24-10-103(1). 219 934 P.2d at 1385. 220 Id. at 1386. 221 Id. 222 Id. at 1387. 222 Id. 223 Id. 224 Id. 225 See also Estate of Grant v. State, 181 P.3d 1202, 1207 (Colo. Ct. App. 2008) (stating that “[i]f the state undertakes an upgrade and follows a certain design, any inadequacies that may result from that design do not waive immunity simply because there previously may have been a safer design avail- able”); Medina v. State, 35 P.3d 443, 448 (Colo. 2001) (holding D3. Design Immunity Statutes In addition to a discretionary function exemption in their tort claims acts, a few states have a statutory pro- vision granting immunity specifically for claims arising out of an approved plan or design of a public improve- ment. In California, for example, a public entity is im- mune from liability for an injury caused by the plan or design of a public project that was approved in advance by a public body or employee exercising discretionary authority to give approval if there were any substantial evidence upon which a reasonable employee or public body could have approved the plan or design.226 For a public entity to have design immunity, it must establish that there was a causal relationship between the plan or design and the accident; that there was discretionary approval of the plan or design prior to construction; and that there was substantial evidence supporting the rea- sonableness of the adoption of the plan or design.227 As for approval, it has been held that a detailed plan drawn up by a competent engineering firm and ap- proved by the city engineer in the exercise of his discre- tionary authority is “persuasive evidence” of the ele- ment of prior approval.228 Although the California statute invites the court to consider whether approval of the plan or design by the public body was reasonable, the New Jersey design immunity statute simply re- quires approval by one exercising discretionary author- ity to give such approval.229 Even in states having a design immunity statute, the statute may not provide necessarily for immunity in every situation involving an allegedly defectively de- signed project. It has been held that there may be an exception to design immunity if a public improvement in actual use has a design feature that was not ap- proved in the overall plan or design.230 Second, a state that in Colorado it is the development of a dangerous condition of a public highway, subsequent to the initial design and con- struction of the highway, that creates a duty on the part of the state to return the road to “the same general state of being, repair, or efficiency as initially constructed”) (internal quota- tion marks omitted) (citation omitted)). 226 CAL. GOV’T CODE § 830.6. 227 Cornette v. Dep’t of Transp., 26 Cal. 4th 63, 66, 26 P.3d 332, 334 (Cal. 2001); Higgins v. State, 54 Cal. App. 4th 177, 184, 62 Cal. Rptr. 2d 459, 464 (Cal. App. 4th Dist. 1997). 228 Grenier v. City of Irwindale, 57 Cal. App. 4th 931, 940, 67 Cal. Rptr. 2d 454, 459 (Cal. App. 2d Dist. 1997). 229 N.J. STAT. ANN., tit. 59 § 4-6 (2009), stating: Neither the public entity nor a public employee is liable un- der this chapter for an injury caused by the plan or design of public property, either in its original construction or any im- provement thereto, where such plan or design has been ap- proved in advance of the construction or improvement by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary author- ity to give such approval or where such plan or design is pre- pared in conformity with standards previously so approved. 230 In Cameron v. State, 7 Cal. 3d 318, 102 Cal. Rptr. 305, 326, 497 P.2d 777, 782 (Cal. 1972), the design plans contained no specification of the uneven super-elevation as the highway

20 may have a duty to improve or change an existing highway or bikeway when actual use or changed cir- cumstances indicate later that the design is no longer satisfactory. Under the California design immunity statute, the state has a reasonable time within which to take action after having notice of such a dangerous con- dition.231 In Juge v. County of Sacramento,232 the plaintiff al- leged that he was injured when he lost control of his bicycle while rounding a curve on the county’s negli- gently designed bike trail.233 The county allegedly failed to use California’s design criteria and uniform specifica- tions as required by the California Bikeways Act.234 However, the California Bikeways Act was not in effect when the bicycle trail was designed.235 Although the opinion focuses almost exclusively on motion and sum- mary judgment practice, the court affirmed the trial court’s dismissal of the case on summary judgment, first, because the design of the bikeway was protected by design immunity under California Government Code Section 830.6 and was not subject to the statutory trap exception in Section 830.8.236 Second, in doing so, the appellate court agreed with the trial court’s ruling that “[t]he defendant negated an essential element of each theory of the plaintiff’s claim, namely causation.”237 Guidance A public entity ordinarily has immunity regarding the plan or design of bikeways or other public improve- ments because of a discretionary function exemption in a tort claims act, or in a few states by virtue of a specific design immunity statute, either or both of which may be applicable. However, depending on the jurisdiction and the circumstances, a public entity’s immunity is not nec- essarily ironclad. In some jurisdictions, regardless of whether there is also a design immunity statute, a pub- lic entity may fail to have immunity if a plan or design that is the proximate cause of a bikeway-accident was not duly reviewed and approved by the governmental body having responsibility to review and approve such plans or designs. Furthermore, in some states there may not be immunity for a public entity that had notice of was actually constructed; “[t]herefore such super-elevation as was constructed did not result from the design or plan intro- duced into evidence and there was no basis for concluding that any liability for injuries caused by this uneven super-elevation was immunized by [Cal. Gov’t Code] section 830.6.” 231 CAL. GOV’T CODE § 830.6 (2009) (stating in part that “the immunity provided by this section shall continue for a reason- able period of time sufficient to permit the public entity to ob- tain funds for and carry out remedial work.”). 232 12 Cal. App. 4th 59, 15 Cal. Rptr. 2d 598 (Cal. App. 3d Dist. 1993). 233 Id. at 62, 15 Cal. Rptr. 2d at 600. 234 Id. at 63, 15 Cal. Rptr. 2d at 600 (citing Streets & High- way Code §§ 2374–76). 235 Id. at 63, 15 Cal. Rptr. 2d at 601. 236 Id. 237 Id. at 64, 15 Cal. Rptr. 2d at 601 (internal quotation marks omitted). and failed to respond appropriately to a design feature that resulted in a dangerous condition. Similarly, in some jurisdictions a public entity will not have immu- nity if it becomes aware of a defect in the plan or design as a result of changed circumstances and fails to take appropriate action. Hence, notwithstanding the general rule that a public entity has immunity for the planning and designing of highways and bikeways, a public agency should remain vigilant and be cognizant of the rules on plan or design immunity in its jurisdiction. E. Application of the Discretionary Exemption to the Maintenance of Bikeways It is not possible simply to categorize decisions in- volving construction or maintenance activities as purely operational in character and, therefore, not worthy of protection under the discretionary function exemption. The mere labeling of an activity as being either a design or a maintenance function has been rejected as an un- satisfactory test to determine whether an activity is immune from liability for negligence under the discre- tionary function exception.238 In states in which the courts follow the U.S. Su- preme Court’s interpretation in Gaubert, supra, of the FTCA’s discretionary function exception, a state’s em- ployees may make decisions on a day-to-day basis at the so-called operational level that still may come within the protection of the discretionary function exception. However, it appears that a majority of state courts con- tinue to follow the planning-operational dichotomy in Dalehite, supra, pursuant to which only discretion exer- cised at the planning level is likely to be immune from liability.239 For example, in State v. Abbott,240 the Su- preme Court of Alaska stated that day-to-day “house- 238 Day v. City of Canby, 143 Or. App. 341, 349, 922 P.2d 1269, 1274 (Or. Ct. App. 1996) (stating that “[i]n some cases, a determination of whether immunity applies is not possible until it is known how the particular decision was made” but that “[in] other cases, a mere description of the decision in question will make it clear that governmental discretion was necessarily involved”); (Little v. Wimmer, 303 Or. 580, 588, 739 P.2d 564, 569 (Or. 1987) (evidence of how the decision was made is necessary to establish the State’s immunity); Steven- son v. State Dep’t of Transp., 290 Or. 3, 619 P.2d 247, 654 (Or. 1980) (reinstating a verdict for the plaintiff without regard to whether a dangerous condition was the result of a faulty design or of negligent maintenance as there was nothing “in the re- cord to suggest that the responsible employees of the highway division made any policy decision of the kind we have described as the exercise of governmental discretion”). 239 See, e.g., Trujillo v. Utah Dep’t of Transp., 1999 Utah App. 227, 986 P.2d 752 (1999); Tseu ex rel. Hobbs v. Jeyte, 88 Haw. 85, 962 P.2d 344 (1998); and Rick v. State Dep’t of Transp. & Dev., 630 So. 2d 1271 (La. 1994). 240 498 P.2d 712 (Alaska 1972). See also Dep’t of Transp. & Pub. Facilities v. Sanders, 944 P.2d 453, 456 (Alaska 1997) (stating that the court identifies “‘discretionary’ acts or func- tions by examining whether the act or function can be de- scribed as ‘planning’ or ‘operational,’” that a “planning decision is one that involves policy formulation,” whereas “an opera- tional decision involves policy execution or implementation”).

Next: SECTION VI. ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS »
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TRB’s National Cooperative Highway Research Program (NCHRP) Legal Research Digest 53: Liability Aspects of Bikeways explores the liability of public entities for bicycle accidents on bikeways as well as on streets and highways. The report also examines the federal laws that encourage the designation and use of bikeways; the elements of a claim in tort against a public entity for a bicycle accident, whether on a public street or some type of bikeway; defenses to bikeway accidents under tort claims acts and applicable to public entities; immunity for bicycle claims under some state recreational use statutes that in a majority of states are applicable to public entities; and public entities’ laws and policies on the accommodation of bicycles on streets and highways and the designation of bikeways.

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