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24 the discretionary function exemption in the Minnesota at the intersection.288 However, the "most critical evi- Tort Claims Act.277 The court held that dence" was the city engineer's erroneous belief that "the [t]he City's decision to replace the semaphore with a stop city had no power to install a stop sign on a private sign and through street configuration was the result of a road."289 The court held that "[i]f the municipality pro- planning decision made after balancing various factors ceeds in direct contravention, or ignorance, of all le- including safety testing, traffic patterns and budget con- gitimate interpretations of the law, its plan of action is cerns. Absent proof that the City had notice of a danger- 278 inherently unreasonable."290 ous condition, the act was discretionary. In general, although there is some judicial authority Likewise, the decision to post a speed limit sign is a to the contrary, after a public entity provides a warning protected planning-level activity rather than an unpro- sign or a traffic control device, the public entity has a tected operational-level activity.279 In Kolitch v. Lind- duty to maintain it in good working order and its failure edahl,280 the Supreme Court of New Jersey agreed with to do so is not protected by the discretionary function the state that "it cannot be a tort to communicate accu- exemption.291 As one appellate court held under the cir- rately a properly established speed limit" and "that the cumstances of that case, "[t]he posted advisory speed setting of the speed limit in the first instance is a dis- signs are not binding and were customarily ignored, cretionary function."281 Furthermore, the court, in dis- which fact was known to the State.... [T]he State's fail- cussing the planning-operational test and whether dis- ure to post mandatory speed limit signs at this danger- cretion had been exercised under the discretionary ous intersection may be deemed a proximate cause of function exemption, stated: the accident."292 The posting of a sign is merely one form of acting on the decision to set a certain limit, a decision that is discre- D. Pavement Markings tionary in nature and therefore entitled to immunity. There are cases holding that a public entity has im- Thus, both the decision and the act of implementation are munity for its decisions regarding pavement mark- 282 one and the same for the purposes of the statute. ings.293 It has been held that special pavement markings The court also relied on New Jersey Statutes Anno- may not be required at an intersection when the evi- tated 59:45, which exonerates a public entity "for an dence does not establish that a hazardous or dangerous injury caused by the failure to provide ordinary traffic condition existed.294 On the other hand, there are prece- signals, signs, markings or other similar devices."283 284 In Alexander v. Eldred, the city of Ithaca argued that its decision whether to install a stop sign was not 288 Id. at 466, 472 N.E.2d at 99899, 483 N.Y.S.2d at 171. "justiciable."285 The New York Court of Appeals held 289 Id. at 466, 472 N.E.2d at 999, 483 N.Y.S.2d at 171. that municipalities do not have absolute immunity 290 Id. at 467, 472 N.E.2d at 999, 483 N.Y.S.2d at 171. when exercising their discretion.286 Rather, a plaintiff 291 Dep't of Transp. v. Konney, 587 So. 2d 1292, 1294 (Fla. may succeed "on proof that the plan either was evolved 1991) (holding that the state and county were not liable be- without adequate study or lacked [a] reasonable ba- cause their "decisions relating to the installation of appropriate sis."287 In Alexander, the plaintiff's evidence established traffic control methods and devices or the establishment of that the city had failed to review traffic counts that speed limits are discretionary decisions"); Bussard v. Ohio were less than 18 years old for the intersection in ques- Dep't of Transp., 31 Ohio Misc. 2d 1, 507 N.E.2d 1179 (Ct. Cl. tion and that New York's MUTCD required a stop sign 1986); Shuttleworth v. Conti Constr. Co., 193 N.J. Super. 469, 474, 475 A.2d 48, 51 (1984) (holding that a jury question was 277 presented regarding whether the county was guilty of "palpa- 386 N.W.2d at 844 (citing MINN. STAT. 466.03(6)). 278 bly unreasonable" conduct in allowing a sign to become ob- Id. at 846. scured by vegetation after installation); Bryant v. Jefferson 279 Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, City, 701 S.W.2d 626 (Tenn. Ct. App. 1985); Dep't of Transp. v. 27374 (Minn. Ct. App. 1996) (holding that an engineer's deci- Neilson, 419 So. 2d 1071 (Fla. 1982) (holding that the failure to sion not to install a "distance plaque" on the approach to a maintain traffic control devices in proper working order once curve was discretionary). installed constituted negligence at the unprotected, operational 280 100 N.J. 485, 497 A.2d 183 (1985). See also Coyne v. level). Dep't of Transp., 182 N.J. 481, 867 A.2d 1159 (2005) (remand- 292 Scheemaker v. State, 125 A.D. 2d 964, 510 N.Y.S.2d 359, ing to the trial court in a case involving an accident when the 360 (N.Y. App. 4th Dep't 1986), aff'd, 70 N.Y.2d 985, 526 department had stationed a truck with a flashing "Left Lane N.Y.S.2d 420, 521 N.E.2d 427 (1988). Closed Ahead" sign for a determination of whether the depart- 293 Elmer v. Kratzer, 249 A.D. 2d 899, 672 N.Y.S.2d 584 ment's actions were "palpably unreasonable," a term not de- (N.Y. App. 4th Dep't 1998) (holding that the city was immune fined in the State's tort claims act). for its decision to classify a road as a truck route that the city 281 100 N.J. at 494, 497 A.2d at 187. had painted as two-lane rather than as a four-lane road); State 282 Id. at 495, 497 A.2d at 188. Dep't of Highways & Public Transp. v. Carson, 599 S.W.2d 852, 283 Id. at 496, 497 A.2d at 189. 854 (Tex. Civ. App. 1980) (holding that there was no liability 284 for alleged faulty or misleading pavement markings), writ re- 63 N.Y.2d 460, 472 N.E.2d 996, 483 N.Y.S.2d 168 (1984). 285 fused n.r.e. and reh'g of writ of error overruled (Nov. 12, 1980)). Id. at 465, 472 N.E.2d at 998, 483 N.Y.S.2d at 170. 294 286 Stomelli v. State, 11 A.D. 2d 1088, 206 N.Y.S.2d 823 Id. at 466, 472 N.E.2d at 998, 483 N.Y.S.2d at 170. (N.Y. App. 4th Dep't 1960), appeal denied, 9 N.Y.2d 609 (1961); 287 Id. (citation omitted). Egnoto v. State, 11 A.D. 2d 1089, 206 N.Y.S.2d 824 (N.Y. App.