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may have a duty to improve or change an existing and failed to respond appropriately to a design feature
highway or bikeway when actual use or changed cir- that resulted in a dangerous condition. Similarly, in
cumstances indicate later that the design is no longer some jurisdictions a public entity will not have immu-
satisfactory. Under the California design immunity nity if it becomes aware of a defect in the plan or design
statute, the state has a reasonable time within which to as a result of changed circumstances and fails to take
take action after having notice of such a dangerous con- appropriate action. Hence, notwithstanding the general
dition.231 rule that a public entity has immunity for the planning
In Juge v. County of Sacramento,232 the plaintiff al- and designing of highways and bikeways, a public
leged that he was injured when he lost control of his agency should remain vigilant and be cognizant of the
bicycle while rounding a curve on the county's negli- rules on plan or design immunity in its jurisdiction.
233
gently designed bike trail. The county allegedly failed
to use California's design criteria and uniform specifica- E. Application of the Discretionary Exemption to
tions as required by the California Bikeways Act.234 the Maintenance of Bikeways
However, the California Bikeways Act was not in effect It is not possible simply to categorize decisions in-
when the bicycle trail was designed.235 Although the volving construction or maintenance activities as purely
opinion focuses almost exclusively on motion and sum- operational in character and, therefore, not worthy of
mary judgment practice, the court affirmed the trial protection under the discretionary function exemption.
court's dismissal of the case on summary judgment, The mere labeling of an activity as being either a design
first, because the design of the bikeway was protected or a maintenance function has been rejected as an un-
by design immunity under California Government Code satisfactory test to determine whether an activity is
Section 830.6 and was not subject to the statutory trap immune from liability for negligence under the discre-
236
exception in Section 830.8. Second, in doing so, the tionary function exception.238
appellate court agreed with the trial court's ruling that In states in which the courts follow the U.S. Su-
"[t]he defendant negated an essential element of each preme Court's interpretation in Gaubert, supra, of the
theory of the plaintiff's claim, namely causation."237 FTCA's discretionary function exception, a state's em-
Guidance ployees may make decisions on a day-to-day basis at the
A public entity ordinarily has immunity regarding so-called operational level that still may come within
the plan or design of bikeways or other public improve- the protection of the discretionary function exception.
ments because of a discretionary function exemption in a However, it appears that a majority of state courts con-
tort claims act, or in a few states by virtue of a specific tinue to follow the planning-operational dichotomy in
design immunity statute, either or both of which may be Dalehite, supra, pursuant to which only discretion exer-
applicable. However, depending on the jurisdiction and cised at the planning level is likely to be immune from
the circumstances, a public entity's immunity is not nec- liability.239 For example, in State v. Abbott,240 the Su-
essarily ironclad. In some jurisdictions, regardless of preme Court of Alaska stated that day-to-day "house-
whether there is also a design immunity statute, a pub-
lic entity may fail to have immunity if a plan or design 238
Day v. City of Canby, 143 Or. App. 341, 349, 922 P.2d
that is the proximate cause of a bikeway-accident was 1269, 1274 (Or. Ct. App. 1996) (stating that "[i]n some cases, a
not duly reviewed and approved by the governmental determination of whether immunity applies is not possible
body having responsibility to review and approve such until it is known how the particular decision was made" but
plans or designs. Furthermore, in some states there may that "[in] other cases, a mere description of the decision in
not be immunity for a public entity that had notice of 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
was actually constructed; "[t]herefore such super-elevation as made is necessary to establish the State's immunity); Steven-
was constructed did not result from the design or plan intro- son v. State Dep't of Transp., 290 Or. 3, 619 P.2d 247, 654 (Or.
duced into evidence and there was no basis for concluding that 1980) (reinstating a verdict for the plaintiff without regard to
any liability for injuries caused by this uneven super-elevation whether a dangerous condition was the result of a faulty design
was immunized by [Cal. Gov't Code] section 830.6." or of negligent maintenance as there was nothing "in the re-
231
CAL. GOV'T CODE § 830.6 (2009) (stating in part that "the cord to suggest that the responsible employees of the highway
immunity provided by this section shall continue for a reason- division made any policy decision of the kind we have described
able period of time sufficient to permit the public entity to ob- as the exercise of governmental discretion").
239
tain funds for and carry out remedial work."). See, e.g., Trujillo v. Utah Dep't of Transp., 1999 Utah
232
12 Cal. App. 4th 59, 15 Cal. Rptr. 2d 598 (Cal. App. 3d App. 227, 986 P.2d 752 (1999); Tseu ex rel. Hobbs v. Jeyte, 88
Dist. 1993). Haw. 85, 962 P.2d 344 (1998); and Rick v. State Dep't of
233 Transp. & Dev., 630 So. 2d 1271 (La. 1994).
Id. at 62, 15 Cal. Rptr. 2d at 600. 240
234 498 P.2d 712 (Alaska 1972). See also Dep't of Transp. &
Id. at 63, 15 Cal. Rptr. 2d at 600 (citing Streets & High-
Pub. Facilities v. Sanders, 944 P.2d 453, 456 (Alaska 1997)
way Code §§ 237476).
235
(stating that the court identifies "`discretionary' acts or func-
Id. at 63, 15 Cal. Rptr. 2d at 601. tions by examining whether the act or function can be de-
236
Id. scribed as `planning' or `operational,'" that a "planning decision
237
Id. at 64, 15 Cal. Rptr. 2d at 601 (internal quotation is one that involves policy formulation," whereas "an opera-
marks omitted). tional decision involves policy execution or implementation").
