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Immunity may be established by government defendants mune."259 It should be noted that a court following the
who can show that the challenged decision was discre- Gaubert approach could have decided the case differ-
tionary because it resulted from a policy oriented deci- ently by concluding that discretion may be exercised
sion-making process. If the counties engaged in this deci- also at the so-called operational level.
sion-making process, the courts may not judge the
wisdom of their decisions. That judgment is left to the po-
B. Traffic Control Devices
litical process.
Although there is a split of authority regarding
The defendants here seek to establish the defense of im- whether a public entity is liable for failure to erect traf-
munity. Each bears the burden to show that a policy deci-
fic signals or other traffic control devices,260 it appears
sion, consciously balancing risks and benefits, took place.
that in most jurisdictions a public entity has immunity
Neither defendant county presented evidence to show
that its decision regarding the warning signs was the re- for the initial decision regarding whether to install
sult of such a process.
249 them.261 Cases have held that the state's decision-
making concerning the providing or placing of such de-
As for warning signs and bicycle accidents, in juris-
vices is within the sound discretion of the responsible
dictions that strictly follow the planning-operational
public entity and is protected by the discretionary func-
dichotomy, a public entity's immunity may be limited to
tion exception.262
its initial decision to build or designate a bikeway or to
place a sign on a bikeway. Although the bicycle accident
occurred on a public road in Johnson v. Alaska,250 the
plaintiff was severely injured when she approached a 259
Id. at 66. See also Guerrero v. Alaska Hous. Fin. Corp.,
railroad crossing and the front wheel of her bicycle 123 P.3d 966, 981 (Alaska 2005) (stating that Alaska cases
"caught" in the tracks, "pitching her over the front of "have placed certain kinds of government actions on the opera-
251
her bicycle." Warning signs were in place at the time tional side of the operational/planning balance," such as high-
of the accident,252 but the plaintiff alleged that the city way maintenance, the painting of lane markings on highways,
was "negligent in the design, maintenance and `signing' and the posting of highway signs).
260
of the railroad crossing which caused her accident."253 Annotation, Highways: Governmental Duty to Provide
An issue on appeal was whether the State had discre- Curve Warnings or Markings, 57 A.L.R. 4th 342, §§ 4, 5(a), (b).
261
tionary function immunity under the Alaska Tort Boub v. Township of Wayne, 183 Ill. 2d 520, 536, 702
Claims Act.254 N.E.2d 535, 543 (1998) (stating that "[o]ur cases have found
immunity under section 3-104 of the Tort Immunity Act...for
In remanding the case, the Supreme Court of Alaska
the initial failure to provide specific warning devices"); see also
reiterated that it followed the "planning-operational
Weiss v. N.J. Transit, 128 N.J. 376, 608 A.2d 254, 257 (1992)
level test to determine whether a particular govern- (holding that "the explicit grant of immunity for failure to pro-
mental function was within the ambit of the discretion- vide traffic signals under N.J.S.A. 59:4-5 `will prevail over the
ary function exemption."255 The court held that liability provisions'" of the tort claims act in a case in which the
[t]he decision of whether to have built the road or cross- plaintiff alleged that the public authorities were independently
ing was a planning decision involving a basic policy deci- negligent in delaying the implementation of a plan to install a
sion.... However, once the state made the decision to con- traffic signal at a railroad crossing) (citation omitted)). See
struct the road and crossing, the discretionary function Pandya v. State, Dep't of Transp., 375 N.J. Super. 353, 370,
immunity did not protect it from possible negligence li- 867 A.2d 1236, 1245 (2005) (stating that the court agreed with
ability in the operational carrying out of the basic policy- the plaintiffs that "the lane markings at issue here do not fall
256
planning decision to build. within the immunity of N.J.S.A. 59:4-5, because the issue here
involved the State's action in affirmatively creating two alleg-
The court noted that "there is no blanket design im-
edly dangerous lanes").
munity in Alaska."257 Thus, the State did not have im- 262
Kohl v. City of Phoenix, 215 Ariz. 291, 295, 160 P.3d 170,
munity, because "the design decision made by the state
174 (Ariz. 2007) (holding that the city had absolute immunity
in applying the reconstruction plans of the road and in a wrongful death action involving a bicyclist when the city
crossing were operational decisions...."258 Likewise, "the made a decision to use computer software to rank intersections
decision to sign [was] operational and hence not im- requiring traffic signals and to establish other criteria); City of
Grapevine v. Sipes, 195 S.W.3d 689 (Tex. 2006) (holding that
the city had immunity after it decided to install a traffic signal
249
Peavler v. Board of Comm'rs, 528 N.E.2d 40, 4748 (Ind. and after a reasonable period of time still failed to do so);
1988). McDuffie v. Roscoe, 679 So. 2d 641, 645 (Ala. 1996) (stating
250 that the court could "not agree that posting warning signs was
636 P.2d 47 (Alaska 1981).
251
a ministerial function"); French v. Johnson County, 929 S.W.2d
Id. at 50. 614, 617 (Tex. App. 1996) (stating that the decisions not to
252
Id. install guardrails, replace a bridge, or post warning signs were
253
Id. discretionary decisions and that the tort claims act did not
254
Id. at 63 (citing ALASKA STAT. 09.50.250). waive governmental immunity for such decisions). But see Ja-
255 cobs v. Board of Comm'rs, 652 N.E.2d 94, 100 (Ind. App. 1995)
Id. at 64.
256
(reversing the grant of a summary judgment for the county and
Id. at 65 (citations omitted). holding that the county failed to establish that it had engaged
257
Id. in a systematic process to determine when and where to place
258
Id. warning signs).
