Effect of MUTCD on Tort Liability of Government Transportation Agencies (2014)

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37 exit ramp) [] a note is made in the plans of the variance. 428 The Virginia DOT stated that in some cases the records indicate the decision-maker and the basis for the decision; for example, in setting speed lim- its and truck restrictions.429 The Wisconsin DOT also said that “[i]t depends…If the decision requires an engineering study or evaluation, there may be documentation. If the decision simply involves application of agency standards, no documentation would be created. If an exception to standards is approved, documentation is required.”430 Other departments that maintain records stated that their procedures or documentation include: • Traffic warrant studies, speed studies, and design calculations.431 • “The evaluation, decisions and records [that] should be documented in Traffic Investigation Reports.”432 • “A traffic study or analysis with recommenda- tions [that] is completed.”433 • “If work is done per a contract, records regard- ing the development of the plans [that] are main- tained until the letting of the project.”434 • “If work is done by State forces or a contract agency, the reason for the work [that] is docu- mented on the work order.”435 Third, 15 departments reported that when records are kept, they keep a record of who made the decision and the basis of the decision.436 In Indiana, “[i]n general the documentation will show who made the decision or authorized [it] and why the decision was made.”437 Iowa noted that any “traffic control daily diary is made part of the 428 Response of Arizona DOT. 429 Id. 430 Response of Wisconsin DOT. 431 Response of Alabama DOT. 432 Response of Caltrans. 433 Response of Kansas DOT. 434 Response of Michigan DOT. 435 Response of Michigan DOT. 436 Responses of Alabama DOT, Arizona DOT, Caltrans, Indiana DOT, Iowa DOT, Kansas DOT, Michigan DOT, Missouri Highway and Transportation Commission, New York State DOT, Pennsylvania DOT, Texas DOT, Utah DOT, Virginia DOT, Washington State DOT, and Wisconsin DOT. Other departments indicated that they do not keep a record of such infor- mation. Responses of Arkansas Highway and Transpor- tation Department, Nevada DOT, Oklahoma DOT, and New Hampshire DOT. 437 Response of Indiana DOT. permanent project records.”438 In Kansas, the records that are maintained “contain the name of the individual or the department making the deci- sion.”439 In Utah, “[t]he traffic studies state the basis for the decision and are signed by the engi- neer.”440 In Wisconsin, “[f]ormal decisions are not issued. Rather, the decisions would be docu- mented in diaries, email messages, or other docu- mentation in many instances.”441 Fourth, the period of time that any such departmental documentation is maintained var- ies, ranging from 3442 to 5,443 7,444 or 10445 years, or for an unlimited time.446 One department stated that records are retained until reconstruction.447 The Virginia DOT stated that records are kept “[i]ndefinitely for speed limits and truck restric- tions; [that the period] varies for other traffic studies, but three years is a typical limit, unless a different period is required under law or by the agency/state retention policies.”448 VIII. TRAFFIC CONTROL DEVICES UNDER THE MUTCD AND THE EXERCISE OF DISCRETION A. The MUTCD and Immunity for a Negligent Plan or Design If there is one area of government activity that generally is considered to be immune as a protected exercise of discretion, it is highway planning and designing.449 438 Response of Iowa DOT. 439 Response of Kansas DOT. 440 Response of Utah DOT. 441 Response of Wisconsin DOT. 442 Response of Indiana DOT. 443 Responses of Oklahoma DOT (minimum of 5 years, then retained pursuant to the policies of the Oklahoma Department of Libraries); Texas DOT (“on average, records are kept for five years”); Utah DOT (then “archived’). 444 Responses of Michigan DOT, Missouri Highway and Transportation Commission, and Wisconsin DOT. 445 Response of Caltrans. 446 Responses of Arizona DOT (“indefinitely”), Pennsylvania DOT (“infinity”), and Washington State DOT. 447 Response of New York State DOT. 448 Response of Virginia DOT. 449 Laabs v. City of Victorville, 163 Cal. App. 4th 1242, 1267, 78 Cal. Rptr. 3d 372, 393 (Cal. App. 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., July 7, 2008); Fla. Dep’t of Transp. v.

38 The term design is included many times in Standards in the 2009 MUTCD, as well in guid- ance, support, and option statements. In Section 1A.07(01) of the MUTCD regarding responsibility for traffic control devices, a Standard is included providing that “[t]he responsibility for the design, placement, operation, maintenance, and uniform- ity of traffic control devices shall rest with the public agency or the official having jurisdiction, or, in the case of private roads open to public travel, with the private owner or private official having jurisdiction.” (Emphasis added.) 450 The Manual includes a Standard in Section 1A.10(01) regarding interpretations, experimentations, changes, and interim approvals stating that “[d]esign, application, and placement of traffic control devices other than those adopted in this Manual shall be prohibited unless the provisions of this Section are followed.” (Emphasis added.)451 In Section 2A.06(07) on the design of signs, another Standard states that “[u]niformity in design shall include shape, color, dimensions, leg- ends, borders, and illumination or retroreflectiv- ity.” (Emphasis added.)452 Insofar as guidance statements are concerned, Section 1A.09(03) of the MUTCD includes guid- ance statements regarding the use of an engineer- ing study and engineering judgment. The section states that “[e]ngineering judgment should be exercised in the selection and application of traffic Allen, 768 So. 2d 496, 497 (Fla. 4th DCA 2000) (holding that denial of defendant’s motion for a summary judg- ment was error because before the government’s sover- eign immunity is waived, “there must be a known haz- ard 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. 1997) (evidence established that the absence of a me- dian 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 Board of Comm’rs, 671 N.E.2d 477, 480 (Ind. App. 1996) (holding that the county was entitled to im- munity 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). 450 2009 MUTCD, supra note 1, at 2. 451 Id. at 4. 452 Id. at 28. control devices, as well as in the location and design of roads and streets that the devices com- plement.”453 In Section 2A.03(04) of the Manual, guidance is included stating that “[r]oadway geo- metric design and sign application should be coor- dinated so that signing can be effectively placed to give the road user any necessary regulatory, warning, guidance, and other information.”454 The term design appears in option statements such as in Section 2A.17(03) regarding overhead sign installation. The Section states: “The follow- ing conditions (not in priority order) may be con- sidered in an engineering study to determine if overhead signs would be beneficial: A. Traffic vol- ume at or near capacity, B. Complex interchange design, C. Three or more lanes in each direc- tion.”455 The term design appears in support statements, such as in Section 2C.08(08) on advisory speed plaques (W13-1P). The Section states that “[t]he 16, 14, and 12 degrees of ball-bank criteria [dis- cussed in paragraph 07] are comparable to the current AASHTO horizontal curve design guid- ance. Research has shown that drivers often exceed existing posted advisory curve speeds by 7 to 10 mph.”456 As noted, many of the transportation depart- ments responding to the survey reported that they defend MUTCD cases on the basis that they have immunity.457 That is, the departments also defend cases on the basis that a specific plan or design decision or action arising under the MUTCD was discretionary and thus not subject to tort liabil- ity.458 Moreover, as discussed in this part of the digest, besides having immunity under a discre- tionary function exemption of a tort claims act, some departments may have immunity pursuant to a design immunity statute or other state statute. Cases have held that there is immunity for al- leged negligence in connection with a wide range of design decisions, including approval of designs and specifications,459 a decision to adhere 453 Id. at 4. 454 Id. at 27. 455 Id. at 41. 456 Id. at 112. 457 See discussion in Section V.C of the digest. 458 Id. 459 Delgadillo v. Elledge, 337 F. Supp. 827 (E.D. Ark. 1972) (approval of designs and specifications was dis- cretionary and, therefore, immune); Hughes v. County of Burlington, 99 N.J. Super. 405, 240 A.2d 177 (l968) (decision to omit emergency shoulders); Fitzgerald v. Palmer, 47 N.J. 106, 219 A.2d 512 (1966) (decision by the State not to design its overpasses with wire fences).

39 to a former design during reconstruction,460 a deci- sion on whether to use barriers,461 or a decision on setting speed limits.462 In Sexton, an Illinois court agreed with the City that “the plaintiff’s claim was based upon a theory of negligent design in the traffic control preemption system,” for which the governmental defendant had absolute immu- nity.463 However, as held by the Supreme Court of South Carolina in Summer v. Carpenter,464 design immunity does not immunize decisions that were not made; that is, “the injury-producing feature must have been a part of the plan approved by the governmental entity” for design immunity to be applicable.465 In New York, the courts have held that public entities may not claim immunity when there was inadequate study of a plan or design, or when the approval of a plan or design was arbi- trary or unreasonable.466 B. Design Immunity Statutes Some states have statutes that specifically provide for immunity for the design of public improvements such as highways.467 Six transpor- 460 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 de- sign decisions are discretionary but that the “failure to warn would be actionable, as it embodies no discretion- ary functions, and the doctrine of state immunity does not apply”). 461 Alvarez v. State, 79 Cal. App. 4th 720, 738–39, 95 Cal. Rptr. 2d 719, 732–33 (Cal. App. 1999) (design im- munity not lost because of an absent barrier, although approved for eventual installation because of higher traffic volume); Higgins v. State, 54 Cal. App. 4th 177, 62 Cal. Rptr. 2d 459 (1997) (upheld immunity for a bar- rier because it was a design decision). 462 Fuller v. Dep’t of Transp., 89 Cal. App. 4th 1109, 107 Cal. Rptr. 2d 823 (Cal. App. 2001), review denied, 2001 Cal. LEXIS 6287 (Cal. Sept. 12, 2001). 463 Sexton v. City of Chicago, 976 N.E.2d 526, 529 (2012). 464 328 S.C. 36, 43, 492 S.E.2d 55, 58 (1997). 465 Grenier v. City of Irwindale, 57 Cal. App. 4th 931, 940–41, 67 Cal. Rptr. 2d 454, 459 (Cal. App. 1997). 466 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 (1997) (holding that the place- ment of a pedestrian control button was not plainly in- adequate or lacking a reasonable basis). 467 See CAL. GOV’T CODE § 830.6 (2013) (subject to cer- tain provisos and conditions set forth in the statute that [n]either a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a con- tation departments that responded to the survey reported that their states have a statute that ex- empts the department from any claims involving the design of a highway or related features or fa- cilities, i.e., a specific design immunity statute.468 Other departments, however, advised that their states do not have such a statute.469 In Hankins v. City of Cleveland,470 a MUTCD case involving alleged improper signage and warnings, the court discussed Mississippi’s stat- ute under which a government entity has plan or design immunity. Under Mississippi Code Anno- tated § 11-46-9(1)(p), a governmental entity and its employees acting within the scope of their em- ployment are not liable for any claim: Arising out of a plan or design for construction or improvements to public property, including but not lim- ited to, …highways, roads, streets, …where such plan or design has been approved in advance of the construction struction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved. MO. REV. STAT. § 537.600.1(2) (2013) (waiving sover- eign immunity to a certain extent for dangerous condi- tions but providing that for roads designed and con- structed prior to September 12, 1977, a public entity shall be entitled to a defense which shall be a complete bar to recovery whenever the public entity can prove by a preponder- ance of the evidence that the alleged negligent, defective, or dan- gerous design reasonably complied with highway and road de- sign standards generally accepted at the time the road or highway was designed and constructed. N.J. STAT. ANN. tit. 59, § 4-6 (2013) (providing that a. Neither the public entity nor a public employee is liable under 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. 468 Responses of Indiana DOT (citing IND. CODE § 34- 13-3-3(10) (granting immunity to a governmental entity in situations where an independent contractor was per- forming a delegable duty); Iowa DOT (citing IOWA CODE § 669.14(8) (design immunity)); Kansas DOT (citing KAN. STAT. ANN. § 75-6104(m)); Michigan DOT (citing MICH. COMP. LAWS § 691.1401, et seq. and the common law); Nevada DOT (citing NEV. STAT., ch. 41); and Ohio DOT (citing OHIO REV. CODE § 2743.02). 469 Responses of Alabama DOT, Arkansas Highway and Transportation Department, Missouri Highway and Transportation Commission, Nebraska Department of Roads, New York State DOT, Oklahoma DOT, Penn- sylvania DOT, Texas DOT, Utah DOT, Washington State DOT, and Wisconsin DOT. 470 90 So. 3d 88 (Miss. 2011).

40 or improvement by the legislative body or governing au- thority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or design. 471 Even though the defendants failed to show that they had complied with the necessary elements for plan or design immunity,472 the court affirmed the dismissal of the case on a second basis—the defendants Delta State University and the City had immunity under the discretionary function exemption of the Mississippi statute.473 As stated in Sadler v. Department of Transpor- tation of the State of Georgia,474 in Georgia the State’s design-standards exception shields the State and its agencies from liability for losses that result from “[t]he plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works [when] such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design.” 475 In Sadler, the plaintiffs alleged that the Georgia DOT negligently analyzed an intersection and bypass; “negligently managed, designed, and maintained the intersection”; “failed to comply with generally accepted design standards”; and “failed to provide proper traffic-control devices and signals at the intersection.”476 The court held that the DOT had immunity because the evidence established that the design complied with the 1988 edition of the MUTCD.477 In contrast, in Linton v. Missouri Highways and Transportation Commission,478 a federal court found that the signs on the highway where a vehi- cle crashed into a concrete railing of an overpass failed to follow the standards in the MUTCD. Al- though the signs complied with the 1971 stan- dards when the exit was built in 1976, it did not comply with the 1988 standards, an important issue inasmuch as the ramp was resurfaced and re-signed in 1984.479 471 Hankins v. City of Cleveland, 90 So. 3d 88, 93 (Miss. 2011). See also Woodworth v. State, 154 Idaho 362, 298 P.3d 1066 (2013), discussed in Section IV.A. 472 Id. 473 Id. (citing MISS. CODE. ANN. § 11-4-9(1)(d)). 474 311 Ga. App. 601, 716 S.E.2d 639 (Ga. 2011). 475 Id. at 603–04, 716 S.E.2d at 641 (quoting GA. CODE ANN. § 50-21-24 (10)). 476 Id. at 602–03, 716 S.E.2d at 640–41. 477 Id. at 604, 716 S.E.2d at 642. 478 980 S.W.2d 4 (Mo. 1998). 479 Stephen R. Bough & M. Blake Heath, When an Outdated Design Finally Needs to be Put to Bed: The Government’s State of the Art Defense in Road Design Although design immunity is recognized gener- ally, some courts have held that there is an excep- tion to design immunity if the public entity had notice480 of a dangerous condition of a public improvement because of its design and failed to take appropriate action.481 As discussed in Section V.E, a court may hold that a public entity had a duty to correct a dangerous condition or to give adequate notice of it to the traveling public.482 A Missouri statute waives sovereign immunity for accidents caused by a dangerous condition of the highway when a plaintiff is able to demon- strate that the injury directly resulted from the dangerous con- dition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dan- gerous condition. 483 Commentators argue that the Missouri “waiver of sovereign immunity for dangerous conditions ‘establishes an absolute waiver of immunity…and abolishes any distinction between governmental and proprietary acts as a test of governmental liability.’”484 They further contend that “[t]he neg- Cases, 67 J. MO. B. 268, 271, 272 (2011), hereinafter referred to as “Bough & Heath.” 480 If a dangerous condition was not of the State’s own making, it must have had actual or constructive notice and a reasonable 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 is not required. Johnson v. State, 636 P.2d 47, 52 (Alaska 1981). 481 Thompson v. Coates, 694 So. 2d 599 (La. 1997) (stating that the design of a highway causing hydro- planing may result in a dangerous condition). Compare Compton v. City of Santee, 12 Cal. App. 4th 591, 600, 15 Cal. Rptr. 2d 660, 665 (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 (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 bar- rier constituted a dangerous condition). 482 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. 1987); Greene v. State, Dep’t of Transp., 465 So. 2d 560 (Fla. 1985); and State Dep’t of Transp. v. Brown, 497 So. 2d 678 (Fla. 1986). 483 Bough & Heath, supra note 479, at 270 (quoting MO. REV. STAT. § 537.600.1(2) (2010 Supp.)). 484 Id.

41 ligence of a driver will not defeat a claim based on a negligent design theory. Instead, the evidence will only allow MHTC to apportion fault between itself and the driver.”485 Nevertheless, the authors concede that [a] plaintiff suing MHTC (or any other governmental entity that maintains a road) for negligent design of a roadway or highway may still not be successful, even if he has established all of the requirements for a dangerous condition listed in § 537.600.1(2), since MHTC still may have the state of the art defense in cases involving design and construction prior to September 12, 1977. (Emphasis added.)486 In other states a statute may preclude a public entity’s liability for inadequate design when there is a dangerous condition. A Colorado case, Swieckowski v. City of Fort Collins,487 involved the absence of warnings or barriers that would have indicated the presence of a ditch that was perpen- dicular to a section of the road where the accident occurred. Colorado’s Governmental Immunity Act (GIA)488 provides that a person injured because of the dangerous condition of a public roadway may not recover against the govern- mental agency that owns the roadway when the cause of the dangerous condition is not due to negligent mainte- nance 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 design. (Empha- sis added.) 489 The court held that the City was immune under the GIA.490 First, the failure to “maintain” means only “a failure to restore a roadway to the state in which it was originally constructed.”491 Accord- ingly, “[b]ecause the roadway remained un- changed, the City did not repair the roadway[] and is immune from any claims of negligence for allowing the condition to exist.”492 Second, because “the danger posed by the road- way’s abrupt transition at the ditch was attribut- able solely to design,” the City was immune under 485 Id. 486 Id. The state-of-the-art defense is based on MO. REV. STAT. § 537.600.1(2), which provides in part that in claims for the negligent, defective or dangerous design of a highway or road, …designed and constructed prior to September 12, 1977, the public entity shall be entitled to a defense which shall be a complete bar to recovery whenever the public entity can prove by a preponderance of the evidence that the alleged negligent, defective, or dangerous design reasonably complied with high- way and road design standards generally accepted at the time the road or highway was designed and constructed. 487 934 P.2d, 1380, 1383 (Colo. 1997). 488 10A COLO. REV. STAT. §§ 24-10-101–120 (1988). 489 Swieckowski, 934 P.2d at 1382. 490 10A COLO. REV. STAT. § 24-10-103(1). 491 Swieckowski, 934 P.2d at 1385. 492 Id. at 1386. the GIA to claims for inadequate design;493 that is, the ditch was a physical feature that was part of the design of the improved roadway.494 The court was critical of the City’s failure to prevent an ac- cident that “was readily predictable and could have been easily avoided”; however, the City had immunity even if the City was negligent in failing to consider the physical features in the design of the improved roadway.495 The GIA also “pre- clude[d] liability for a public entity’s failure to post signs on a public highway.”496 C. The MUTCD and Liability for Highway Maintenance Many of the provisions in the MUTCD regard- ing maintenance reviewed for the digest regard- ing maintenance are in the form of guidance statements. For example, Section 1A.05(01) and (02) on maintenance of traffic control devices states that “[f]unctional maintenance of traffic control devices should be used to determine if cer- tain devices need to be changed to meet current traffic conditions,” and that “[p]hysical mainte- nance of traffic control devices should be per- formed to retain the legibility and visibility of the device, and to retain the proper functioning of the device.”497 Guidance statements in Section 2A.22(01) and (02) advise that “[m]aintenance activities should consider proper position, cleanli- ness, legibility, and daytime and nighttime visibil- ity”; that “[d]amaged or deteriorated signs, gates, or object markers should be replaced”; and that “[t]o assure adequate maintenance, a schedule for inspecting (both day and night), cleaning, and re- placing signs, gates, and object markers should be established.”498 Section 4D.02 sets forth the MUTCD’s provi- sions on responsibility for operation and mainte- 493 Id. 494 Id. at 1387. 494 Id. 495 Id. 496 Id. See also Estate of Grant v. State, 181 P.3d 1202, 1207 (Colo. 2008) (stating that “[i]f the state un- dertakes 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 available”); Medina v. State, 35 P.3d 443, 448 (Colo. 2001) (holding that in Colorado it is the development of a dangerous condition of a pub- lic 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 con- structed”) (internal quotation marks omitted) (citation omitted). 497 2009 MUTCD, supra note 1, at 2. 498 Id. at 44.

42 nance. A guidance statement in Paragraph 01 states that [p]rior to installing any traffic control signal, the respon- sibility for the maintenance of the signal and all of the appurtenances, hardware, software, and the timing plan(s) should be clearly established. The responsible agency should provide for the maintenance of the traffic control signal and all of its appurtenances in a competent manner. 499 In the same section, the Manual advises agen- cies to have “properly skilled maintenance personnel available without undue delay for all signal malfunctions and signal indication fail- ures.”500 The MUTCD advises in Section 5G.01(01) that “[t]he safety of road users, including pedestrians and bicyclists, as well as personnel in work zones, should be an integral and high priority element of every project in the planning, design, mainte- nance, and construction phases,” and that “[p]art 6 should be reviewed for additional criteria, spe- cific details, and more complex temporary traffic control zone requirements.” 501 Section 6F.04(01) and (02) on sign maintenance advises that “[s]igns should be properly main- tained for cleanliness, visibility, and correct posi- tioning,” and that “[s]igns that have lost signifi- cant legibility should be promptly replaced.” 502 In states in which the courts follow the Supreme Court’s interpretation in Gaubert of the FTCA’s discretionary function exception, state employees may make decisions on a day-to-day basis at the operational level that still may come within the protection of the discretionary function exception. Thus, under Gaubert, so-called “housekeeping” functions, presumably meaning those performed at the operational level, may be protected from liability as an exercise of discretion.503 It appears, however, that a majority of state courts follow the planning–operational dichotomy in Dalehite, pur- suant to which only discretion exercised at the planning level is likely to be immune from liabil- 499 Id. at 449. 500 Id. at 450. 501 Id. at 544. 502 Id. at 583. 503 See State v. Abbott, 498 P.2d 712, 720 (Alaska 1972) (adhering to the Dalehite-reasoning and holding that day-to-day “housekeeping” functions are generally not discretionary). See also Dep’t of Transp. & Pub. Fa- cilities v. Sanders, 944 P.2d 453, 456 (Alaska 1997) (stating that the court identifies “‘discretionary’ acts or functions by examining whether the act or function can be described as ‘planning’ or ‘operational,’” that a “planning decision is one that involves policy formula- tion,” whereas “an operational decision involves policy execution or implementation”). ity.504 As discussed in Section VI.C, there is recent authority holding that maintenance activity is a ministerial function not protected by a discretion- ary function exemption in a tort claims act and that all acts in the performance of a ministerial function likewise are not protected from liability by the discretionary function exemption. The mere labeling of an activity as being either a design or a maintenance function has been rejected as an unsatisfactory test to determine whether an activity is immune from liability for negligence under a discretionary function exception.505 Thus, a state’s tort claims act and judicial precedents must be reviewed to determine whether state law immunizes public entities for negligence in the performance of operational-level activities that arguably may include highway maintenance. Even under a Gaubert-type of analysis, transportation departments would not be protected from liability under a discretionary function exemption when there is a violation of an applicable mandatory policy or standard. D. The MUTCD and Liability for Signs and Warning Signs Much of the MUTCD is devoted to signs and warning signs and includes applicable Standards, 504 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). Cases holding that a public entity’s failure to provide warning signs at a given location did not in- volve the exercise of discretion include Metier v. Cooper Transport Co., 378 N.W.2d 907, 910–11 (Iowa 1985); Stanley v. State, 197 N.W.2d 599 (Iowa 1972) and Ehlinger v. State, 237 N.W.2d 784 (Iowa 1976). But see Seiber v. State, 211 N.W.2d 698 (Iowa 1973) (holding that a policy determination not to erect signs along state highways warning of deer involved the exercise of protected discretion). 505 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 ap- plies 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 in- volved”); Little v. Wimmer, 303 Or. 580, 588, 739 P.2d 564, 569 (1987) (evidence of how the decision was made is necessary to establish the state’s immunity); Stevenson v. State Dep’t of Transp., 290 Or. 3, 619 P.2d 247 (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 mainte- nance, as there was nothing “in the record 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”).

43 as well as guidance, option, and support state- ments.506 In Johnson v. Alaska,507 one issue was whether the City was negligent in the signing of a railroad crossing where an accident occurred. The Supreme Court of Alaska reiterated that it fol- lowed the Dalehite “planning–operational level test to determine whether a particular govern- mental function was within the ambit of the dis- cretionary function exemption.”508 The State did not have immunity because “the design decision made by the state in applying the reconstruction plans of the road and crossing were operational decisions.”509 Likewise, “the decision to sign [was] operational and hence not immune.”510 More recently, in Chandradat, supra, an Indi- ana court applied the planning–operational test in a MUTCD case in holding that “the placement of the signs was not part of the planning for Phase VI of the construction; instead, it was part of the implementation. The State is not immune from negligence that results in the implementation part of a project.”511 In another case involving the MUTCD, the court held that a dangerous condi- tion was created by the City’s action in placing signals that obstructed a highway user’s view.512 In Hayes v. United States,513 also applying the MUTCD, the court relied on the Supreme Court’s test in Gaubert. The rationale behind the discretionary function exception, as the Supreme Court explained in United States v. Gaubert, is that “when established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discre- tion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.” …In such cases, there is no waiver of sovereign immunity and the government is protected from suit. By contrast, if 506 See 2009 MUTCD, supra note 1, ch. 2, at 27–346. 507 636 P.2d 47 (Alaska 1981). 508 Id. at 64. See also id. at 65. 509 Id. 510 Id. at 66. See also Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 981 (Alaska 2005) (stating that Alaska cases “have placed certain kinds of government actions on the operational side of the opera- tional/planning balance,” such as highway mainte- nance, the painting of lane markings on highways, and the posting of highway signs). 511 Chandradat v. State, 830 N.E.2d 904, 911 (Ind. 2005) (citation omitted). 512 Lampe v. Taylor, 338 S.W.2d 350, 359 (2011). See also Shuttleworth v. Conti Constr. Co., 193 N.J. Super. 469, 474, 475 A.2d 48, 51 (1984) (holding that a jury question was presented regarding whether the county was guilty of “palpably unreasonable” conduct in allow- ing a sign to become obscured by vegetation after instal- lation). 513 539 F. Supp. 2d 393 (D.D.C. 2008). there is no discretionary function involved, the United States has waived its sovereign immunity and the federal district courts have subject matter jurisdiction over the claim. 514 In Hayes, the court’s interpretation of the MUTCD, as well as the National Park Service (NPS) Sign Manual, was that these documents set forth only recommendations, not mandatory standards regarding sign placement. The first chapter of the Sign Manual, entitled “purpose and appli- cability,” states that the manual is merely a “guide, and that it is the ‘individual park manager…[who] has the re- sponsibility for determining whether or not a sign is nec- essary or appropriate at a given location.’” 515 Furthermore, although the “[p]laintiff makes much of the MUTCD’s discussion of ‘end-of- roadway’ conditions, …[t]hat discussion…states only that ‘[a]ppropriate advance warning signs should be used’—not that they must be used. ...The discussion, therefore, is merely a recom- mendation, not a mandatory standard which pre- cludes a finding of discretion.”516 Although the MUTCD’s provisions regarding the signs at issue were nonmandatory and thus discretionary, the court held that the government still could be held liable. The government failed to satisfy the second prong of the Gaubert analysis: [T]he question is not whether the challenged decision in- volved policy considerations but whether the nature of the decision is grounded in such considerations. …While NPS may, in fact, consider economic, engineering and aesthetic concerns in deciding whether and in what manner to place signs along the portion of the Rock Creek Park Trail in question, the government has failed to demonstrate how the nature of these sign placement decisions implicates and is grounded in public policy concerns. (Emphasis added.) 517 In other cases, a transportation department’s decisions regarding signing have been held to be discretionary and immune from tort liability.518 In a Louisiana case, the court held that “[i]n all situations, the decision to erect a warning sign is discretionary on the part of DOTD.”519 In an Ohio case, the court held that there was no liability be- cause the placement of the signs in question was not mandatory, and thus they did not come 514 Id. at 400 (citation omitted). 515 Id. at 401. 516 Id. (quoting MUTCD § 3C.04). 517 Id. at 402 (citations omitted). 518 See, e.g., Ireland v. Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 273–74 (Minn. Ct. App. 1996) (holding that an engineer’s decision not to install a “distance plaque” on the approach to a curve was discretionary). 519 Lee v. State ex rel. Dep’t of Transp. & Dev., 701 So. 2d 676, 679 (La. 1997).

44 “within the scope of a ‘public road’ as defined in the applicable statute.”520 Of course, a public entity is not “responsible for all injuries resulting from any risk posed by the roadway or its appurtenances, only those caused by an unreasonable risk of harm to others.”521 Nevertheless, in many states there is a duty to provide traffic control devices at the location of a dangerous condition of which a transportation department had or should have had notice.522 A transportation department may have immunity as long as a sign, signal, marking, or other device was not necessary to warn of a dangerous condi- tion that would not have been reasonably appar- ent to and would not have been anticipated by a person exercising due care.523 Likewise, in many states a statutory exemption in a tort claims act for discretionary acts does not relieve a public en- tity of liability for failing to give adequate warn- ing of or to correct a condition known to be dan- gerous to the traveling public.524 Of course, the absence of a sign must have been the proximate cause of the accident in question.525 520 Shope v. City of Portsmouth, 2012 Ohio 1605, at P22 (2012) (citing OHIO REV. CODE § 2744.01(H)). 521 Lee, 701 So. 2d at 678 (stating that “[i]t is well- settled that a governmental authority that undertakes to control traffic at an intersection must exercise a high degree of care for the safety of the motoring public”). 522 CAL. GOV’T CODE § 830.4. 523 See, e.g., CAL. GOV’T CODE § 830.8. 524 Hensley v. Jackson County, 227 S.W.3d 491 (Mo. 2007) (negligent maintenance or failure to repair a downed stop sign as constituting a dangerous condi- tion); Norman v. N.C. Dep’t of Transp., 161 N.C. App. 211, 218, 588 S.E.2d 42, 48 (N.C. Ct. App. 2003), review dismissed, 358 N.C. 235, 595 S.E.2d 153 (2004); Com- monwealth v. Babbitt, 172 S.W.3d 786, 794 (Ky. 2005) (holding that the State had “no duty to provide warning signs, guardrails, or barriers when an unusual or dan- gerous condition does not exist,” nor had a “duty to erect guardrails or barriers of sufficient strength to withstand any degree of force”). See also Coyne v. Dep’t of Transp., 182 N.J. 481, 867 A.2d 1159 (2005) (remand- ing to the trial court in a case involving an accident when the department had stationed a truck with a flashing “Left Lane Closed Ahead” sign for a determina- tion of whether the department’s actions were “palpably unreasonable,” a term not defined in the State’s tort claims act). 525 Cianciola v. State, 38 A.D. 3d 1296, 1297, 834 N.Y.S.2d 755, 756 (2007); Harkness v. Hall, 684 N.E.2d 1156 (Ind. 1997) (holding that the failure of a county to maintain and sign a highway was the proximate cause of the accident); Kennedy v. Ohio Dep’t of Transp., 63 Ohio Misc. 2d 328, 331, 629 N.E.2d 1101, 1103 (Ct. Cl. 1992) (holding that the transportation department es- tablished that the road’s traffic control devices con- In Daigle, supra, a case involving the MUTCD, the court held that the plaintiff failed to prove that the intersection presented an unreasonable risk of harm.526 E. The MUTCD and Liability for Traffic Signals A significant part of the MUTCD is devoted to traffic signals.527 Although there is some contrary authority,528 it appears that in most jurisdictions a transportation department has immunity for the initial decision regarding whether to install traffic signals and other devices.529 Cases have held that a state’s decision-making concerning the provid- ing or placing of such devices is within the sound discretion of the responsible public entity and is thereby protected by a discretionary function ex- ception.530 In a Texas case the court stated that formed to the Ohio MUTCD and that the decedent, who was intoxicated, drove past three separate barricades closing the area where a machine was parked across the roadway). 526 Daigle v. Parish of Jefferson, 30 So. 3d 55, 63 (La. 2009). 527 See 2009 MUTCD, supra note 1, pt. 4, Traffic Sig- nals, at 433–529. 528 Annotation, Highways: Governmental Duty to Provide Curve Warnings or Markings, 57 A.L.R. 4th 342, §§ 4, 5(a) and (b). 529 Boub v. Township of Wayne, 183 Ill. 2d 520, 536, 702 N.E.2d 535, 543 (1998) (stating that “[o]ur cases have found immunity under section 3-104 of the Tort Immunity Act…for the initial failure to provide specific warning devices”); see also Weiss v. N.J. Transit, 128 N.J. 376, 608 A.2d 254, 257 (1992) (holding that “the explicit grant of immunity for failure to provide traffic signals under N.J.S.A. 59:4-5 ‘will prevail over the li- ability provisions’” of the tort claims act in a case in which the plaintiff alleged that the public authorities were independently negligent in delaying the imple- mentation of a plan to install a traffic signal at a rail- road crossing) (citation omitted). See Pandya v. State, Dep’t of Transp., 375 N.J. Super. 353, 370, 867 A.2d 1236, 1245 (2005) (stating that the court agreed with the plaintiffs that “the lane markings at issue here do not fall within the immunity of N.J.S.A. 59:4-5, because the issue…involved the State’s action in affirmatively creating two allegedly dangerous lanes”). 530 Kohl v. City of Phoenix, 215 Ariz. 291, 295, 160 P.3d 170, 174 (Ariz. 2007) (holding that the City had absolute immunity in a wrongful death action involving a bicyclist when the City made a decision to use com- puter software to rank intersections requiring traffic signals and to establish other criteria); City of Grape- vine v. Sipes, 195 S.W.3d 689 (Tex. 2006) (holding that the City had immunity after it decided to install a traf- fic signal and after a reasonable period of time still failed to do so); McDuffie v. Roscoe, 679 So. 2d 641, 645

45 “[w]hen the City first installs a traffic signal is no less discretionary than whether to install it.”531 Thus, the toll road authority “retained discretion regarding when to install warning flashers” that were at issue in the case.532 Immunity extends beyond the decision whether and when to install or provide traffic control de- vices. In Bjorkquist v. City of Robbinsdale,533 the plaintiff claimed that the timing of the clearance interval between a change of the traffic light from red to green was unduly brief and that the im- proper timing of the light change was the proxi- mate cause of the accident.534 The plaintiff as- serted that the timing of the change of the lights was a ministerial decision made at the opera- tional level, and, therefore, was not immune from judicial review.535 The court held that “[t]here is no obligation to time the lights in a particular way. Rather, that decision is arrived at after weighing competing interests.”536 The decision regarding the length of the clearance interval of the lights was part of the planning process and as such was a discretionary decision protected by the discretion- ary function exemption.537 After a public entity decides to provide traffic signals, it has been held that there is a duty (Ala. 1996) (stating that the court could “not agree that posting warning signs was a ministerial function”); French v. Johnson County, 929 S.W.2d 614, 617 (Tex. 1996) (stating that the decisions not to install guard- rails, replace a bridge, or post warning signs were dis- cretionary decisions and that the tort claims act did not waive governmental immunity for such decisions). But see Jacobs v. Board of Comm’rs, 652 N.E.2d 94, 100 (Ind. 1995) (reversing the grant of a summary judgment for the County and holding that the County failed to establish that it had engaged in a systematic process to determine when and where to place warning signs). 531 Fort Bend County Toll Road Auth., 316 S.W.3d 114, 121 (2010) (citation omitted). 532 Id. 533 352 N.W.2d 817 (Minn. Ct. App. 1984). In Bjorkquist, the court noted that “[t]ort immunity for municipalities was abolished by statute in 1963 subject to [a] few exceptions.” Id. at 818. See also Zank v. Larson, 552 N.W.2d 719 (Minn. 1996) (holding that the City’s determination as to the timing of traffic control signals was discretionary). 534 Bjorkquist, 352 N.W.2d at 818. The plaintiff con- ceded that the decision whether to install a traffic con- trol device at an intersection was discretionary in na- ture and was exempt from liability under the discretionary function exception of the Minnesota Tort Claims Act. 535 Id. 536 Id. 537 Id. (citing MINN. STAT. § 466.03(6) (1982)). to maintain them in good working order.538 Nevertheless, at least one case was located in which the court held that a municipality is not liable even for the failure to maintain a traffic signal.539 Again, in most jurisdictions a public entity may not be immune from liability if it has failed to respond to a known dangerous condition.540 If there is no showing of a malfunc- tion prior to the accident, a public entity may not be held liable because of the absence of any show- ing of actual or constructive notice.541 After having notice of a malfunction, a public entity has a rea- sonable time within which to take corrective ac- tion.542 538 Montgomery County v. Voorhees, 86 Md. App. 294, 303, 586 A.2d 769, 774 (Md. 1991) (alleged faulty traffic light); Forest v. State, 493 So. 2d 563 (La. 1986) (absence of amber flashing lights contributed to a find- ing of liability); Robinson v. State, Dep’t of Transp., 465 So. 2d 1301 (Fla. 1985); and Stephen v. Denver, 659 P.2d 666 (Colo. 1983). See also Annotation. Liability of Highway Authorities Arising Out of Motor Vehicle Acci- dent Allegedly Caused by Failure to Erect or Properly Maintain Traffic Control Device at Intersection, 34 A.L.R. 3d 1008, 1015, The strongest cases for recovery have been those in which the highway authority failed within a reasonable time to replace a traffic sign which had been removed by unauthorized persons, to re-erect or repair a sign which had fallen down or had been knocked down or bent over, or to replace a burned out bulb in an electric traffic signal. 539 Radosevich v. County Comm’rs of Whatcom County, 3 Wash. App. 602, 476 P.2d 705 (Wash. 1970). 540 Nawrocki, 463 Mich. 143, 180, 615 N.W.2d 702, 721 (2000) (holding that the state or county road com- missions have no duty to install, maintain, repair, or improve traffic control devices, including traffic signs, and that their liability is limited to the repair of dan- gerous or defective conditions within the actual road- way); Starr v. Veneziano, 560 Pa. 650, 659, 747 A.2d 867, 873 (2000) (stating that no evidence was presented that a traffic control device would have prevented the accident); Harkness v. Hall, 684 N.E.2d 1156, 1160 (Ind. 1997) (holding that there is a duty to maintain signs or signals in good working order); and Bendas v. Township of White Deer, 531 Pa. 180, 185, 611 A.2d 1184, 1187 (1992) (holding that the Commonwealth’s duty to make highways reasonably safe included erect- ing traffic control devices or otherwise correcting dan- gerous conditions). 541 Zuniga v. Metro. Dade County, 504 So. 2d 491, 492 (Fla. 1987) (holding that there was no showing of actual or constructive notice of a malfunction of a traffic control signal). 542 City of Atlanta v. Landmark Envtl. Indus., 272 Ga. App. 732, 733, 613 S.E.2d 131, 135 (Ga. 2005) (cit- ing Bowman v. Gunnells, 243 Ga. 809, 256 S.E.2d 782 (1979) (stating that there was nothing “in the record to show any like malfunction before the accident [and]

46 F. The MUTCD and Liability for Stop Signs and Speed Limit Signs The MUTCD includes in Chapter 2 numerous provisions concerning stop signs, including Standards that are applicable.543 For example, in Section 2B.04 regarding the right-of-way at inter- sections, the Manual includes a Standard that states in part that stop signs shall not be used in conjunction with any traffic control signal operation, except in the following cases: A. If the signal indication for an approach is a flashing red at all times; B. If a minor street or driveway is located within or adja- cent to the area controlled by the traffic control signal, but does not require separate traffic signal control be- cause an extremely low potential for conflict exists; or C. If a channelized turn lane is separated from the adja- cent travel lanes by an island and the channelized turn lane is not controlled by a traffic control signal. (Empha- sis added.) As for speed limit signing, the MUTCD includes, for example, a Standard in Section 2B.13 applica- ble to a “Speed Limit Sign (R2-1)” that states: 01 Speed zones (other than statutory speed limits) shall only be established on the basis of an engineering study that has been performed in accordance with traffic engi- neering practices. The engineering study shall include an analysis of the current speed distribution of free-flowing vehicles. 02 The Speed Limit (R2-1) sign (see Figure 2B-3) shall display the limit established by law, ordinance, regula- tion, or as adopted by the authorized agency based on the engineering study. The speed limits displayed shall be in multiples of 5 mph. 03 Speed Limit (R2-1) signs, indicating speed limits for which posting is required by law, shall be located at the points of change from one speed limit to another. (Em- phasis added.) Many guidance, option, and support statements are included as well in the Manual regarding both stop signs and speed limit signs. First, as for stop signs, although the MUTCD contains some mandatory provisions, in general the courts have held that a decision whether to erect a stop sign is a discretionary decision and immune from judicial review under the discre- tionary function exemption in a state tort claims act.544 In Gonzales v. Hollins,545 the question was there [was] no genuine issue of material fact as to the County’s actual or constructive notice”)). 543 See other parts of the MUTCD, supra note 1, in- cluding pt. 5, Traffic Control Devices for Low-Volume Roads. 544 Tell City v. Noble, 489 N.E.2d 958 (Ind. 1986) (holding that the decision of the City not to install a “Stop” sign or other form of traffic control at an inter- whether the City’s action in changing a traffic control device to a static stop sign was a discre- tionary activity within the meaning of the discre- tionary function exemption in the Minnesota Tort Claims Act.546 The court held that [t]he City’s decision to replace the semaphore with a stop sign and through street configuration was the result of a planning decision made after balancing various factors including safety testing, traffic patterns and budget con- cerns. Absent proof that the City had notice of a danger- ous condition, the act was discretionary. 547 The court in Walters, supra, interpreting Sec- tion 2B.05 of the MUTCD on “STOP Sign Applica- tion,” held that the placement of the stop sign at the intersection in question was “discretionary and not mandatory”548 because the Section “states that stop signs ‘should’ be used if engineering judgment indicates that one or more of the listed conditions exist.”549 In Alexander v. Eldred,550 the City of Ithaca ar- gued that its decision whether to install a stop sign was not “justiciable.”551 The New York Court of Appeals held that municipalities do not have absolute immunity when exercising their discre- tion552; rather, a plaintiff may succeed “on proof that the plan either was evolved without adequate study or lacked [a] reasonable basis.”553 In Alexander, the plaintiff’s evidence established that the City had failed to review traffic counts that were less than 18-years-old for the intersec- tion in question and that New York’s MUTCD re- quired a “Stop” sign at the intersection.554 How- ever, the “most critical evidence” was the city engineer’s erroneous belief that “the city had no section was discretionary and immune from judicial review under the Indiana Tort Claims Act). 545 386 N.W.2d 842 (Minn. 1986). See Nguyen v. Nguyen, 565 N.W.2d 721, 723 (Minn. 1997) (“Discre- tionary immunity applies in this case because the chal- lenged conduct, the County’s decision to delay the inter- section improvements, occurred at the planning level.”). 546 Gonzales, 386 N.W.2d 842, 844 (1986) (citing MINN. STAT. § 466.03(6)). 547 Id., 386 N.W.2d at 846. 548 Walters v. City of Columbus, 2008 Ohio 4258 at 20 (2008). 549 Id. at 22. 550 63 N.Y.2d 460, 472 N.E.2d 996, 483 N.Y.S.2d 168 (1984). 551 Id. at 465, 472 N.E.2d at 998, 483 N.Y.S.2d at 170. 552 Id. at 466, 472 N.E.2d at 998, 483 N.Y.S.2d at 170. 553 Id. (citation omitted). 554 Id. at 466, 472 N.E.2d at 998–99, 483 N.Y.S.2d at 171.

47 power to install a stop sign on a private road.”555 The court held that “[i]f the municipality proceeds in direct contravention, or ignorance, of all legiti- mate interpretations of the law, its plan of action is inherently unreasonable.”556 As for speed limit signs, likewise, it has been held that a decision to post a speed limit sign is a protected planning-level activity rather than an unprotected operational-level activity.557 In Kolitch v. Lindedahl,558 the Supreme Court of New Jersey agreed with the State that “it cannot be a tort to communicate accurately a properly estab- lished speed limit” and “that the setting of the speed limit in the first instance is a discretionary function.”559 Furthermore, the court, in discussing the planning–operational test and whether discre- tion had been exercised under the discretionary function exemption, stated: The posting of a sign is merely one form of acting on the decision to set a certain limit, a decision that is discre- tionary in nature and therefore entitled to immunity. Thus, both the decision and the act of implementation are one and the same for the purposes of the statute. 560 The court also relied on New Jersey Statutes Annotated 59:4-5, which exonerates a public entity “for an injury caused by the failure to pro- vide ordinary traffic signals, signs, markings or other similar devices.”561 However, a New York appellate court held that under the circumstances of that case, “[t]he posted advisory speed signs are not binding and were customarily ignored, which fact was known to the State. …[T]he State’s failure to post mandatory speed limit signs at this dangerous intersection may be deemed a proximate cause of the acci- dent.”562 Finally, although there is some judicial author- ity to the contrary, after a public entity provides a warning sign, traffic signal, “Stop” sign, or other device, it has a duty to maintain the device in 555 Id. 63 N.Y.2d at 466, 472 N.E.2d at 999, 483 N.Y.S.2d at 171. 556 Id. 557 Dep’t of Transp. v. Konney, 587 So. 2d 1292, 1294 (Fla. 1991) (holding that the State and County were not liable because their “decisions relating to the installa- tion of appropriate traffic control methods and devices or the establishment of speed limits are discretionary decisions”). 558 100 N.J. 485, 497 A.2d 183 (1985). 559 Id. at 494, 497 A.2d at 187. 560 Id. at 495, 497 A.2d at 188. 561 Id. at 496, 497 A.2d at 189. 562 Scheemaker v. State, 125 A.D. 2d 964, 510 N.Y.S.2d 359, 360 (1986). good working order and a failure to do so is not protected by a discretionary function exemption.563 G. The MUTCD and Liability for Pavement Markings The MUTCD’s provisions on pavement mark- ings are found principally in Part 3 of the Manual, but appear in other parts of the MUTCD as well. Although the MUTCD includes Standards that apply to pavement markings, in Section 3A.01(01) entitled, “Functions and Limitations,” a support statement provides that [m]arkings on highways and on private roads open to public travel have important functions in providing guid- ance and information for the road user. Major marking types include pavement and curb markings, delineators, colored pavements, channelizing devices, and islands. In some cases, markings are used to supplement other traf- fic control devices such as signs, signals, and other mark- ings. In other instances, markings are used alone to effec- tively convey regulations, guidance, or warnings in ways not obtainable by the use of other devices. 564 As previously noted, the courts have held that there is no waiver of sovereign immunity and/or that no duty is created by a nonmandatory provi- sion of the MUTCD. In a case involving the MUTCD, it was alleged that the Manual “specifi- cally requires pavement markings on roadways approaching a railroad crossing and that, there- fore, County officials had no discretion in whether to place the markings on Beach Road.”565 The court, however, held that the appellants had ig- nored another Standard in Section 1A.09 of the Manual. “This Manual describes the application of traffic control devices, but shall not be a legal requirement for their in- stallation.” Immediately following this standard is a “Guidance” which states that “[t]he decision to use a par- ticular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgment” and, further, that while the Manual “provides Standards, Guidance, and Options for 563 See Bussard v. Ohio Dep’t of Transp., 31 Ohio Misc. 2d 1, 507 N.E.2d 1179 (Ct. Cl. 1986); Bryant v. Jefferson City, 701 S.W.2d 626 (Tenn. 1985); and Dep’t of Transp. v. Neilson, 419 So. 2d 1071 (Fla. 1982) (hold- ing that the failure to maintain traffic control devices in proper working order once installed constituted negli- gence at the unprotected, operational level). 564 2009 MUTCD, supra note 1, at 347. 565 Shipley v. Dep’t of Roads, 813 N.W.2d 455, 463 (2012) (stating that the plaintiffs relied on a “Standard” in the Manual, found at paragraph 8B.16, which states in part: “Identical markings shall be placed in each ap- proach lane on all paved approaches to highway-rail grade crossings where signals or automatic gates are located, and at all other highway-rail grade crossings where the posted or statutory highway speed is 60 km/h (40 mph) or greater”).

48 design and application of traffic control devices, this Manual should not be considered a substitute for engi- neering judgment.” 566 There are other cases holding that a public entity has immunity for its decisions regarding pavement markings.567 It has been held that spe- cial pavement markings may not be required at an intersection when the evidence does not estab- lish that a hazardous or dangerous condition ex- isted.568 On the other hand, there are precedents holding a transportation agency liable for im- proper, inadequate, or misleading pavement markings.569 In addition, in some jurisdictions the courts may regard some decisions on pavement marking as operational-level activities that are not protected by a discretionary function exemp- tion.570 In Dispenza v. State of New York,571 the plain- tiffs alleged that the transportation department was negligent in failing to post warnings that there was wet paint on the highway as a result of pavement striping operations. In entering a judg- ment in favor of the claimants on the issue of li- ability, the court held that compliance with the MUTCD in that case did not eliminate the possi- 566 Id. 567 Elmer v. Kratzer, 249 A.D. 2d 899, 672 N.Y.S.2d 584, 585–86 (1998) (holding that the City was immune for its decision to classify a road as a truck route that the City had painted as a two-lane rather than as a four-lane road); State Dep’t of Highways & Pub. Transp. v. Carson, 599 S.W.2d 852, 854 (Tex. 1980) (holding that there was no liability for alleged faulty or misleading pavement markings). 568 Stornelli v. State, 11 A.D. 2d 1088, 206 N.Y.S.2d 823 (1960); Egnoto v. State, 11 A.D. 2d 1089, 206 N.Y.S.2d 824 (N.Y. App. 4th Dep’t 1960). 569 Pandya v. State, Dep’t of Transp., 375 N.J. Super. 353, 370, 867 A.2d 1236 (N.J. Super. Ct. 2005) (revers- ing the grant of a summary judgment and agreeing with the plaintiffs that the lane markings at issue “do not fall within the immunity of N.J.S.A. 59:4-5, because the issue here involved the State’s action in affirma- tively creating two allegedly dangerous lanes”); Fisher v. State, 268 A.D. 2d 849, 702 N.Y.S.2d 418 (2000) (holding that misleading pavement marking violated the MUTCD). 570 Rogers v. State, 51 Haw. 293, 459 P.2d 378 (1969) and State v. I’Anson, 529 P.2d 188 (Alaska 1974) (both courts holding that pavement marking is operational- level maintenance activity that is not immune from liability). 571 28 Misc. 3d 1205(A), 957 N.Y.S.2d 635, 2010 N.Y. Misc. LEXIS 2839 (2010). bility of other negligence that was the proximate cause of the claimants’ injuries.572 H. Statements in the MUTCD Regarding Barriers and Guardrails The MUTCD states in Section 1A.08(05) that “curbs, median barriers, guardrails, speed humps or tables…are generally not included” in the Man- ual. (Emphasis added.)573 Although both terms do appear in the Manual, the term “guardrail” is used infrequently. The term “barriers,” particu- larly in regard to signing, is noted in several sec- tions of the MUTCD. For example, Section 2C.65(01) regarding object markers for obstruc- tions adjacent to the roadway includes a support statement providing that “[o]bstructions not actu- ally within the roadway are sometimes so close to the edge of the road that they need a marker.”574 Section 2G.13(01) on guide signs for egress from preferential lanes to general-purpose lanes includes a standard stating that [f]or barrier-separated, buffer-separated, and contiguous preferential lanes where egress is restricted only to des- ignated points, post-mounted Advance Guide and post- mounted Intermediate Egress Direction signs…shall be installed in the median or on median barriers that sepa- rate two directions of traffic prior to and at the interme- diate exit points from the preferential lanes to the gen- eral-purpose lanes. (Emphasis added.) 575 Section 3F.03(08) of the MUTCD concerning delineator application includes a guidance state- ment indicating that “[a] series of delineators should be used wherever guardrail or other longi- tudinal barriers are present along a roadway or ramp.”576 Barriers also are mentioned in other sec- tions of the Manual.577 None of the provisions in the MUTCD appear to address when it is necessary to use guardrails and barriers. Nevertheless, to the extent that a viola- tion of a provision of the MUTCD (e.g., on signing) implicates barriers or guardrails, it should be noted that transportation departments have suc- 572 Dispenza v. State of New York, 28 Misc. 3d 1205(A), 957 N.Y.S.2d 635, 2010 N.Y. Misc. LEXIS 2839, at 51–52 (2010). 573 2009 MUTCD, supra note 1, at 3. 574 Id. at 135. 575 Id. at 270. 576 Id. at 424. 577 Id. at 552 (stating in § 6C.02(02) regarding tem- porary traffic control zones (TTC), a support statement, that [a] work zone is an area of a highway with construction, maintenance, or utility work activities. A work zone is typically marked by signs, channelizing devices, barriers, pavement markings, and/or work vehicles. It extends from the first warn- ing sign or high-intensity rotating, flashing, oscillating, or strobe lights on a vehicle to the END ROAD WORK sign or the last TTC device.

49 cessfully defended cases on the basis that deci- sions involving barriers or guardrails are discre- tionary in nature as planning-level decisions.578 Thus, it has been held that the failure to erect a guardrail did not constitute a dangerous condition of commonwealth realty;579 that the failure to erect a guardrail was not a “dangerous condition of the streets” for purposes of the “streets exception” to governmental immunity under a tort claims act;580 and that there was no liability for failing to pro- vide a median barrier, particularly when there was no showing of changed conditions between the time of the reconstruction of the roadway and the accident.581 Similarly, in Helton v. Knox County, the court held that “the decision not to install guardrails despite the recommendations of state inspectors falls within the discretionary function excep- tion.”582 In Dahl v. State of New York,583 the court held that “the claimants failed to establish, through proof of prior similar accidents, violations of mandatory safety standards, or any other evi- dence, that the absence of guide rails in the vicin- ity of the accident lacked any reasonable basis.”584 On the other hand, the courts have held that a public entity may be held liable for an injury caused by a dangerous condition of its property and that a public entity’s failure to erect median barriers to prevent cross-median accidents may result in liability.585 In Dean, supra, the plaintiff alleged that her accident would have been mitigated or avoided if there had been a guardrail at the location of the 578 State, Dep’t of Transp. v. Vega, 414 So. 2d 559, 560 (Fla. 1982) (holding that the DOT “enjoyed sover- eign immunity in its decision not to erect a guardrail”). See also State v. San Miguel, 2 S.W.3d 249, 251 (Tex. 1999); Cygler v. Presjack, 667 So. 2d 458 (Fla. 1996); Newsome v. Thompson, 202 Ill. App. 3d 1074, 560 N.E.2d 974 (1990). 579 Dean v. Commonwealth, Dep’t of Transp., 561 Pa. 503, 508, 751 A.2d 1130, 1134 (2000). 580 Lockwood v. Pittsburgh, 561 Pa. 515, 751 A.2d 1136 (2000). 581 Sutton v. Golden Gate Bridge, 68 Cal. App. 4th 1149, 81 Cal. Rptr. 2d 155 (1998). 582 922 S.W.2d 877, 887 (Tenn. 1996). 583 45 A.D. 3d 803, 805, 846 N.Y.S.2d 329, 330 (2007). 584 Id. 585 Ducy v. Argo Sales Co., 25 Cal. 3d 707, 159 Cal. Rptr. 835, 602 P.2d 755, 760 (1979) (holding that the language of CAL. GOV’T CODE § 835 “refute[d] the state’s argument that it [was] under no ‘duty’ to protect the public against dangers that are not created by physical defects in public property” and that under the circum- stances in that case the State was liable for failure to provide an adequate median barrier). accident.586 At issue was Section 8522(b)(4) of the Pennsylvania Judicial Code, known as the real estate exception, that waives immunity for dam- ages arising from a dangerous condition of the Commonwealth’s “real estate, highways, and sidewalks.”587 The Supreme Court of Pennsylvania held that the DOT did not have a duty to erect guardrails on its roads and that the DOT’s failure to install guardrails did not come within the real estate exception to sovereign immunity.588 The court held that the absence of a guardrail cannot be said to be a danger- ous condition of the real estate that resulted in a rea- sonably foreseeable injury…. Stated differently, the lack of a guardrail does not render the highway unsafe for the purposes for which it was intended, i.e., travel on the roadway. 589 In sum, the majority view is that transportation departments’ decisions on whether and when to provide signs and warning signs, traffic signals, stop signs, speed limit signs, pavement markings, or other traffic control devices are policy-level de- cisions that are immune from liability. Moreover, the MUTCD permits transportation departments to use an engineering study or engineering judg- ment when making decisions on the use of traffic control devices. Some states’ statutes specifically exonerate transportation agencies for failure to provide certain traffic control devices such as traf- fic signals. However, the courts have held a trans- portation department liable for an accident that was proximately caused by the department’s fail- ure to provide a traffic control device as needed or required by the MUTCD when the department had notice of a dangerous condition. After a trans- portation department provides safety features or devices, it is generally held that the department has a duty to maintain them in good and service- able condition. CONCLUSION As discussed in the digest, the MUTCD affects the tort liability of transportation departments in respect to their decisions on the use of traffic con- trol devices. Although there are standards in the MUTCD that are mandatory, the other state- ments in the Manual identified as guidance, op- tion, and support statements are not mandatory. Moreover, transportation departments are ex- pressly permitted by the MUTCD to use their en- gineering judgment or an engineering study in the selection and application of traffic control devices, 586 Dean v. Commonwealth of Pa., Dep’t of Transp., 561 Pa. 503, 512, 751 A.2d 11130, 1134 2000). 587 42 PA. CONS. STAT. § 8522(b)(4). 588 Dean, 561 Pa. at 512, 751 A.2d at 1134. 589 Id.

50 as well as when they design roads and streets that the devices complement. Although transportation departments have con- cerns regarding some of the changes that were made to the 2009 MUTCD, it appears that in most states that the departments have immunity when exercising their discretion, particularly at the planning level, in the application of traffic control devices. Whether a transportation department has immunity usually is a question of law for the court. Besides possibly having immunity under a tort claims act and/or a design immunity statute, transportation departments may be protected by other state statutes from liability claims involving traffic control devices. In some states, however, a department may not have immunity for the exer- cise of discretionary functions unless the depart- ment is able to make a satisfactory showing that it actually exercised its discretion. The digest dis- cusses documentation that transportation de- partments are making and maintaining on their decisions about the use of traffic control devices. Such documentation may be necessary in those states in which the courts require that a transpor- tation agency or other public entity demonstrate that it actually exercised its discretion and that its action was approved by the appropriate body authorized to do so. In many states transportation departments may be held liable for failure to correct or give ade- quate warning of a dangerous condition of the highway. Thus, the digest discusses whether there is an exception to discretionary or design immunity whereby a transportation department may be held liable for the absence of a traffic con- trol device or the use of a noncompliant one that resulted in a dangerous condition of which the transportation department had notice. As of the time of the digest, very little informa- tion and reported cases are available on claims arising under the 2009 MUTCD. However, based on information provided by DOTs in response to the survey and a sampling for the period between the effective date of the MUTCD and April 2014 on cases arising under the 2003 MUTCD or prior editions, it appears, particularly at the appellate level for the most recent 3-year period, that trans- portation departments have been relatively suc- cessful in defending against MUTCD claims.