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keeping" functions (ministerial duties) are generally not SECTION VI. ALLEGED NEGLIGENCE OF PUBLIC
discretionary.241 However, since the Gaubert case, in ENTITIES THAT MAY OR MAY NOT RESULT IN
some states so-called housekeeping functions, presuma- LIABILITY FOR BIKEWAY ACCIDENTS
bly meaning those performed at the operational level,
nevertheless, may be protected from liability by the
discretionary function exception. A. Warning Signs
In any case, the well-settled rule under both pre- Although a public entity is not compelled to place
Gaubert and post-Gaubert decisions appears to be that warning signs, for example, at every curve along a
when a public entity has knowledge of a dangerous or highway or bikeway, generally it must provide them at
hazardous condition, the public entity has a duty to "dangerous places" or unusual places to enable users
correct the defective condition or to give adequate warn- exercising ordinary care and prudence to avoid injury to
ing of it.242 The discretionary function exception has not themselves and others.244 As one court has stated, a
protected a public entity from liability for a failure to public entity is not "responsible for all injuries resulting
respond to a dangerous or hazardous condition.243 A from any risk posed by the roadway or its appurte-
state's tort claims act and judicial precedents must be nances, only those caused by an unreasonable risk of
reviewed to determine whether the state has immu- harm to others."245 Thus, under a state's tort claims act,
nized public entities for negligence in the performance a public entity may have immunity as long as the sig-
of certain activities that generally are regarded as com- nal, sign, marking, or device was not necessary to warn
ing within the maintenance category. of a dangerous condition that would not have been rea-
The majority rule, thus, is that maintenance ordinar- sonably apparent to and would not have been antici-
246
ily is regarded by the courts applying a United States v. pated by a person exercising due care. Of course, be-
Dalehite type of analysis as operational-level activity fore the failure to post a warning will result in liability,
that is not immune from liability by virtue of a discre- it must be shown that the absence of a warning was the
tionary function exemption in a tort claims act. Even proximate cause of the accident.247
under a United States v. Gaubert type of analysis, a In some jurisdictions, however, the courts have held
public entity generally would not be protected from li- that whether a public entity is protected from liability
ability under a discretionary function exemption if the by the discretionary function exemption decision must
248
public entity violates a mandatory policy or standard be decided on a case-by-case basis:
applicable to a bikeway.
Guidance 244
Hensley v. Jackson County, 227 S.W.3d 491 (Mo. 2007)
Some courts adhering to the planning-operational (negligent maintenance or failure to repair a downed stop sign
level dichotomy announced in United States v. Dalehite as constituting a dangerous condition); Norman v. N.C. Dep't of
also state that when construing their state's tort claims Transp., 161 N.C. App. 211, 218, 588 S.E.2d 42, 48 (N.C. Ct.
act they look to or follow the federal courts' interpreta- App. 2003), review dismissed, 358 N.C. 235, 595 S.E.2d 153
tion of the discretionary function exemption in the (2004), review denied, 358 N.C. 235, 595 S.E.2d 153 (2004),
FTCA. If a maintenance policy adopted by a public en- cert. denied, 358 N.C. 545, 599 S.E.2d 404 (2004), appeal after
remand, 2008 N.C. App. LEXIS 814 (N.C. Ct. App. May 6,
tity allows for the exercise of discretion in the perform-
2008); Commonwealth v. Babbitt, 172 S.W.3d 786, 794 (2005)
ance of maintenance tasks, such as the setting of priori-
(holding that the State had "no duty to provide warning signs,
ties or allocation of personnel or resources, the public guardrails, or barriers when an unusual or dangerous condi-
entity may want to research whether the involved state tion does not exist," nor had a "duty to erect guardrails or bar-
uses the Gaubert or some other test, and whether the riers of sufficient strength to withstand any degree of force").
discretionary function exemption also immunizes action 245
Lee v. State ex rel. Dep't of Transp. & Dev., 701 So. 2d
taken pursuant to maintenance-level policies that re- 676, 678 (La. 1997) (stating that "[i]t is well-settled that a gov-
quire or allow the exercise of discretion. ernmental authority that undertakes to control traffic at an
intersection must exercise a high degree of care for the safety
of the motoring public").
246
See, e.g., CAL. GOV'T CODE § 830.8.
241
498 P.2d at 720. 247
Cianciola v. State, 38 A.D. 3d 1296, 1297, 834 N.Y.S.2d
242
See discussion, supra, in §§ IV.C, V, and VI. 755, 756 (N.Y. App. 4th 2007); Harkness v. Hall, 684 N.E.2d
243
See Symmonds v. Chicago, M., S.P. & P.R. Co., 242 1156 (Ind. Ct. App. 1997) (holding that the failure of a county
N.W.2d 262 (Iowa 1976) (holding that the existence of a haz- to maintain and sign a highway was the proximate cause of the
ardous highway condition alone was sufficient to give rise to accident); Kennedy v. Ohio Dep't of Transp., 63 Ohio Misc. 2d
the public agency's duty to provide adequate warning). Cases 328, 331, 629 N.E.2d 1101, 1103 (Ct. Cl. 1992) (holding that
holding that a public entity's State's failure to provide warning the transportation department established that the road's traf-
signs at a given location did not involve the exercise of discre- fic control devices conformed to the Ohio MUTCD and that the
tion include Metier v. Cooper Transport Co., 378 N.W.2d 907, decedent, who was intoxicated, drove past three separate bar-
91011 (Iowa 1985); Stanley v. State, 197 N.W.2d 599 (Iowa ricades closing the area where a machine was parked across
1972) and Ehlinger v. State, 237 N.W.2d 784 (Iowa 1976). But the roadway).
248
see Seiber v. State, 211 N.W.2d 698 (Iowa 1973) (holding that a Lee v. State, 701 So. 2d at 679 (stating that "[i]n all
policy determination not to erect signs along state highways situations, the decision to erect a warning sign is discretionary
warning of deer involved the exercise of protected discretion). on the part of DOTD").
