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

Chapter: VII. IMMUNITIES OF TRANSPORTATION DEPARTMENTS WHEN USING THEIR DISCRETION IN APPLYING THE MUTCD

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Suggested Citation:"VII. IMMUNITIES OF TRANSPORTATION DEPARTMENTS WHEN USING THEIR DISCRETION IN APPLYING THE MUTCD." National Academies of Sciences, Engineering, and Medicine. 2014. Effect of MUTCD on Tort Liability of Government Transportation Agencies. Washington, DC: The National Academies Press. doi: 10.17226/22244.
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Suggested Citation:"VII. IMMUNITIES OF TRANSPORTATION DEPARTMENTS WHEN USING THEIR DISCRETION IN APPLYING THE MUTCD." National Academies of Sciences, Engineering, and Medicine. 2014. Effect of MUTCD on Tort Liability of Government Transportation Agencies. Washington, DC: The National Academies Press. doi: 10.17226/22244.
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Suggested Citation:"VII. IMMUNITIES OF TRANSPORTATION DEPARTMENTS WHEN USING THEIR DISCRETION IN APPLYING THE MUTCD." National Academies of Sciences, Engineering, and Medicine. 2014. Effect of MUTCD on Tort Liability of Government Transportation Agencies. Washington, DC: The National Academies Press. doi: 10.17226/22244.
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Suggested Citation:"VII. IMMUNITIES OF TRANSPORTATION DEPARTMENTS WHEN USING THEIR DISCRETION IN APPLYING THE MUTCD." National Academies of Sciences, Engineering, and Medicine. 2014. Effect of MUTCD on Tort Liability of Government Transportation Agencies. Washington, DC: The National Academies Press. doi: 10.17226/22244.
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Suggested Citation:"VII. IMMUNITIES OF TRANSPORTATION DEPARTMENTS WHEN USING THEIR DISCRETION IN APPLYING THE MUTCD." National Academies of Sciences, Engineering, and Medicine. 2014. Effect of MUTCD on Tort Liability of Government Transportation Agencies. Washington, DC: The National Academies Press. doi: 10.17226/22244.
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Suggested Citation:"VII. IMMUNITIES OF TRANSPORTATION DEPARTMENTS WHEN USING THEIR DISCRETION IN APPLYING THE MUTCD." National Academies of Sciences, Engineering, and Medicine. 2014. Effect of MUTCD on Tort Liability of Government Transportation Agencies. Washington, DC: The National Academies Press. doi: 10.17226/22244.
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Suggested Citation:"VII. IMMUNITIES OF TRANSPORTATION DEPARTMENTS WHEN USING THEIR DISCRETION IN APPLYING THE MUTCD." National Academies of Sciences, Engineering, and Medicine. 2014. Effect of MUTCD on Tort Liability of Government Transportation Agencies. Washington, DC: The National Academies Press. doi: 10.17226/22244.
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Suggested Citation:"VII. IMMUNITIES OF TRANSPORTATION DEPARTMENTS WHEN USING THEIR DISCRETION IN APPLYING THE MUTCD." National Academies of Sciences, Engineering, and Medicine. 2014. Effect of MUTCD on Tort Liability of Government Transportation Agencies. Washington, DC: The National Academies Press. doi: 10.17226/22244.
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29 section because the two signals were not continu- ously visible for 270 feet as required by the Manual.”321 After a jury returned a verdict in favor of the plaintiff, the trial court denied the City’s motion for judgment notwithstanding the verdict. The appellate court on review explained that under Missouri Revised Statutes Section 537.600.1(2), the immunity of a public entity is waived, subject to other conditions set forth in the statute, “if the plaintiff establishes that the prop- erty was in dangerous condition at the time of the injury” and the “public entity had actual or con- structive notice of the dangerous condition in suf- ficient time prior to the injury to have taken measures to protect against the dangerous condi- tion.”322 The court held that there was “conflicting expert testimony about whether the City’s place- ment of the ‘signal ahead’ sign complied with the requirements of the Manual and thereby met the applicable standard of care.”323 However, “[i]t was up to the jurors to determine the weight and believability of this expert testimony,” a conflict in the evidence that the jury resolved in favor of the plaintiff.324 The court ruled that the waiver under Section 537.600.1(2) was “absolute” and affirmed the jury verdict for the plaintiff.325 VII. IMMUNITIES OF TRANSPORTATION DEPARTMENTS WHEN USING THEIR DISCRETION IN APPLYING THE MUTCD A. The MUTCD and the Discretionary Function Exemption Of the 21 transportation departments that re- sponded to the survey, 14 stated that their state tort claims act or similar legislation includes an exemption from tort liability for a public entity’s performance of or failure to perform a discretion- ary function.326 However, five departments stated 321 Id. at 358. 322 Id. at 357 (quoting MO. REV. STAT. § 537.600.1(2) (2000) (footnote omitted)). 323 Id. at 359. 324 Id. 325 Id. at 357 (citing MO. REV. STAT. § 537.600.2 (2000)). 326 Responses of Caltrans (citing CAL. GOV’T CODE § 820.2 concerning discretionary acts); Indiana DOT (citing IND. CODE § 34-14-3-3(7)); Iowa DOT (citing IOWA CODE § 669.14(1)); Kansas DOT (citing KAN. STAT. ANN. § 75-6104(e)); Nebraska Department of Roads (citing NEB. REV. STAT. § 81-8,219(1)); Nevada DOT (citing NEV. REV. STAT. ch. 41); New York State DOT (identify- ing qualified immunity for discretionary action and cit- ing Weiss v. Fote, 7 N.Y.2d 579, 167 N.E.2d 63, 200 N.Y.S.2d 409 (1960)); Ohio DOT (citing OHIO REV. CODE § 2743.02 and the “public duty doctrine”); Oklahoma that their state’s tort claims act did not include a discretionary function exemption.327 Even if a state tort claims act does not have an exemption for discretionary action, some courts have held that the state and its agencies are still immune for their decisions that are discretionary in nature as long as the decision-making involves the evaluation of broad policy factors.328 Transportation departments are more likely to have immunity for decisions that involve the ex- ercise of discretion, such as whether or when to install or provide traffic control devices.329 For ex- ample, in Texas there is no waiver of immunity for claims based on a governmental unit’s failure to place a traffic or road sign, signal, or warning device because the failure to do so is a result of the government’s discretionary action.330 In con- trast, transportation departments are more likely to incur liability for a defect in the highway sur- (citing OK. STAT. tit. 51, § 155(5)); Texas DOT (citing TEX. CIV. PRAC. & REM. CODE § 101.056); Utah DOT (cit- ing UTAH CODE § 63G-7-301(5)(a)); Virginia DOT (citing VA. CODE § 33.1-70.1 and stating “[i]n limited circum- stances”); Washington State DOT; and Wisconsin DOT. The Wisconsin DOT noted that WIS. STAT. § 893.80 “es- tablishes the claims process against units of govern- ment, such as counties and municipalities, which main- tain roads. WisDOT does not maintain the state highway system, we contract with counties to perform that work for the state.” The department also noted that § 893.82 “deals with claims against state employ- ees who allegedly committed torts and that § 893.83 ‘deals with local government liability for snow and ice removal. Again, the counties maintain WisDOT high- ways under a contract with WisDOT’”). 327 Responses of Alabama DOT, Arkansas Highway and Transportation Department, Michigan DOT, Missouri Highway and Transportation Commission, and Pennsylvania DOT. Two departments did not re- spond to the question. Responses of Arizona DOT and New Hampshire DOT. 328 Miotke v. Spokane, 101 Wash. 2d 307, 334, 678 P.2d 803, 819 (1984) (stating that in Evangelical United Brethren Church v. State, 67 Wash. 2d 246, 407 P.2d 440 (1965), the court created a narrow exception to gov- ernmental immunity from tort liability in instances when officials engage in discretionary acts in accor- dance with a four-part inquiry). Response of New York State DOT (citing Weiss v. Fote, 7 N.Y.2d 579, 167 N.E.2d 63, 200 N.Y.S.2d 409 (1960). 329 Bickner v. Raymond Turnpike, 2008 SD 27, P13, 747 N.W.2d 668, 672 (S.D. 2008) (holding that a town’s decision to remove a warning sign and not replace it was discretionary and therefore immune from liability). 330 Fort Bend County Toll Rd. Auth. v. Olivares, 316 S.W.3d 114 (Tex. 2010).

30 face331 or for the failure to correct or give adequate warning of a known dangerous condition in or on the highway.332 Whether a governmental decision is discretionary and entitled to immunity is a question of law decided by the court.333 With respect to the meaning of the discretionary function exemption or equivalent state doctrine,334 although the courts have difficulty defining what amounts to discretionary actions, they have at- tempted to provide guidance.335 The courts tend to follow one of three approaches when deciding which functions qualify for immunity. The ap- proaches are derived principally from the U.S. Supreme Court’s decisions, all involving the Fed- eral Tort Claims Act (FTCA), in Dalehite v. United States,336 Indian Towing Co. v. United States,337 and United States v. Gaubert.338 It appears that a majority of the state courts follow the Dalehite approach, some follow Indian Towing, and some have adopted the Gaubert analysis of discretion.339 1. Dalehite—The Planning/Operational Dichotomy In Dalehite, the Supreme Court held that government decisions that are made at a plan- ning—rather than operational—level involve the exercise of discretion within the meaning of the discretionary function exemption and, therefore, 331 Nawrocki v. Macomb County Rd. Comm’n, 463 Mich. 143, 184, 615 N.W.2d 702, 723 (2000). 332 Id. 333 Truman v. Griese, 762 N.W.2d 75, 85 (2009). 334 See, e.g., Weiss v. Fote, 7 N.Y.2d 579, 167 N.E.2d 63, 200 N.Y.S.2d 409 (1960). 335 Federal cases are collected in “Claims Based on Construction and Maintenance of Public Property as within Provision of 28 U.S.C. 2680(a) Excepting from Federal Tort Claims Act Claims involving ‘Discretion- ary Function or Duty,’” 37 A.L.R. FED. 537. 336 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953). 337 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955). 338 499 U.S 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991). 339 But see Johnson v. Dep’t of Transp., 2004 UT App 284, P22 n.4, 98 P.3d 773, 780 n.4 (2004) (stating that a “decision to allow the lane adjacent to the cutouts to remain open at night was clearly not a discretionary function since the decision was made by a UDOT on-site inspector who acts at the operational level,” and follow- ing Trujillo v. Utah Dep’t of Transp., 1999 Utah App. 227, 986 P.2d 752, 760 n.2 (Utah 1999) (rejecting the Gaubert analysis in holding that the U.S. Supreme Court’s interpretation of the discretionary function ex- emption in the FTCA was not binding on Utah’s inter- pretation of its tort claims act and in ruling that the court would continue to follow the planning/operational dichotomy)). are exempt from liability.340 Thus, in one MUTCD case, the court held that the discretionary func- tion exemption “does not extend to the exercise of discretionary acts at an operational level.”341 As a state court later explained, if the “work involved no marshaling of state resources, no prioritizing of competing needs, no planning, and no exercise of policy-level discretion,” then the activity is likely to be held to be operational in nature.342 Of 21 transportation departments that re- sponded to the survey, 5 reported that the courts in their state follow the Dalehite planning- versus operational-level dichotomy343 and 8 departments stated that their courts did not follow Dalehite.344 2. Indian Towing—Negligent Implementation of a Planning-Level Decision Only one transportation department reported that its state follows the Supreme Court’s inter- pretation in Indian Towing of the discretionary function exemption in the FTCA.345 Eleven departments specifically responded that their state courts do not follow the Indian Towing precedent.346 340 Dalehite, 346 U.S. at 42, 73 S. Ct. at 971, 97 L. Ed. 1444. 341 Shipley v. Dep’t of Roads, 283 Neb. 832, 813 N.W.2d 455, 462 (2012). 342 Defoor v. Evesque, 694 So. 2d 1302, 1306 (Ala. 1997). 343 Responses of Indiana DOT (citing Hanson v. County of Vigo, 659 N.E.2d 1123 (Ind. 1996)); Iowa DOT; Nebraska Department of Roads; Oklahoma DOT; Randell v. Tulsa ISD No. 1, 889 P.2d 1264 (Okla. 1994); Robinson v. City of Bartlesville Bd. of Educ., 700 P.2d 1013 (Okla. 1985); and Walker v. City of Moore, 837 P.2d 876 (Okla. 1992)); and Washington State DOT. Five departments stated that the question was not ap- plicable to their department. Responses of Alabama DOT (citing sovereign immunity), Arkansas Highway and Transportation Department, Michigan DOT, New York State DOT, and Pennsylvania DOT. Two depart- ments did not respond to the question. Responses of Arizona DOT and New Hampshire DOT. 344 Responses of Caltrans; Kansas DOT; Missouri Highway and Transportation Commission (no discre- tionary function exemption); Nebraska Department of Roads; Ohio DOT; Texas DOT (stating, however, that “although not cited, the same rationale has been ap- plied to appellate opinions on § 101.056); Utah DOT; and Wisconsin DOT. 345 Response of Iowa DOT. 346 Responses of Caltrans, Indiana DOT; Kansas DOT; Missouri Highway and Transportation Commis- sion (no discretionary function exemption); Nebraska Department of Roads; Ohio DOT; Oklahoma DOT; Texas DOT (stating, however, that “[a]ppellate deci- sions have fine tuned a distinction between planning

31 In Indian Towing, the Supreme Court held that once the government makes a decision at the planning or policy level, the discretion is exhausted and any negligence thereafter in im- plementing the decision is not protected by the discretionary function exemption in the FTCA. 3. Gaubert—Discretion Exercised at Both the Planning and Operational Levels Some state courts follow the Supreme Court’s 1991 decision in Gaubert,347 in which the Court held that there is now no distinction between planning- and operational-level actions and the possible exercise of immune governmental discre- tion.348 Thus, the Gaubert Court expanded the area of discretionary immunity beyond that exer- cised at the so-called planning level. In Gaubert, first, the Court held that “if a regu- lation mandates particular conduct, and the employee obeys the direction, the Government will be protected because the action will be deemed in furtherance of the policies which led to the promulgation of the regulation.”349 Second, “[i]f the employee violates [a] mandatory regulation, there will be no shelter from liability because there is no room for choice and the action will be contrary to policy.” (Emphasis added.) 350 Third, “if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.”351 Moreover, the Court held that “it must be presumed that the agent’s acts are grounded in policy when exercising that discre- tion.”352 Under Gaubert, it is not the status or level of the governmental actor that determines whether the discretionary exemption applies; rather, it is the nature of the conduct or decision- making. and implementation of discretionary acts”); Utah DOT; Washington State DOT; and Wisconsin DOT. Five de- partments stated that the question was not applicable to their department. Responses of Alabama DOT (sov- ereign immunity), Arkansas Highway and Transporta- tion Department, Michigan DOT, New York State DOT, and Pennsylvania DOT. Two departments did not re- spond to the question. Responses of Arizona DOT and New Hampshire DOT. 347 499 U.S. 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991). 348 Id. at 324, 111 S. Ct. at 1274, 113 L. Ed. 2d at 347–48. 349 Id. at 347. 350 Id. 351 Id. 352 Id. at 348. In Aguehounde v. District of Columbia,353 involv- ing a claim by a pedestrian struck at an intersec- tion controlled by a traffic signal, the District of Columbia Court of Appeals held that the setting of the signal lights was an exercise of discretion. The court observed that when “an employee fails to follow an established policy, because the exis- tence of a set policy means that all discretion has been removed from the employee, …the em- ployee’s actions would…be ministerial” and not immune from liability.354 After “[f]inding that the setting of yellow intervals is a discretionary func- tion,”355 the court next turned to the question of whether there was a specific or mandatory direc- tive for employees to follow in setting the timing interval.356 The court, finding none, concluded that the employees were exercising discretion and that any alleged mismeasurement at the intersection by the District’s employees that may have con- tributed to an improper traffic light setting was irrelevant.357 Four transportation departments that re- sponded to the survey advised that the courts in their state now follow the Supreme Court’s deci- sion in Gaubert.358 Nine departments reported that 353 666 A.2d 443 (D.C. App. 1995). See also Tucci v. District of Columbia, 956 A.2d 684, 691 (D.C. 2008) (stating that the court had previously rejected an “at- tempt to blur the distinction between discretionary and ministerial functions by ‘isolating each component of a decision’” and citing Aguehounde v. District of Colum- bia, 666 A.2d 443 (D.C. 1995)). 354 Aguehounde v. District of Columbia, 666 A.2d 443, 450 (D.C. 1995). 355 Id. at 451. 356 Id. 357 Id. It may be noted that there was a vigorous dis- sent in Aguehounde by Judge Schwelb and that the Iowa Supreme Court disagreed with the court’s analysis in Aguehounde. See Graber v. City of Ankeny, 656 N.W.2d 157 (Iowa 2003) (reversing summary judgment for the City and remanding). 358 The Nevada DOT advised that in Martinez v. Maruszezak, 123 Nev. 433, 168 P.3d 720 (2007), a medi- cal malpractice case, the Nevada Supreme Court exam- ined NEV. REV. STAT. 41.032(2) and discretionary im- munity and adopted the Federal Berkovitz-Gaubert test. The Martinez court held that [u]nder the Berkovitz-Gaubert test, the decision to create and operate a public hospital and the college of medicine are the type of decisions entitled to discretionary–function immunity, because those decisions satisfy both prongs of the Berkovitz- Gaubert test; namely, they involve elements of judgment and choice, and they relate to social and economic policy. But, while a physician’s diagnostic and treatment decisions involve judg- ment and choice, thus satisfying the test’s first criterion, those decisions generally do not include policy considerations, as re- quired by the test’s second criterion. In this case, as Dr. Marti- nez did not engage in policy-making decisions in his treatment

32 their state courts do not follow Gaubert.359 The Nebraska Department of Roads explained that “[t]he Dalehite and Gaubert holdings have been adopted in Nebraska…, but they have not been directly cited in any case involving the MUTCD.”360 KDOT reported that its courts “sort of” follow the Gaubert decision and advised that [t]he Kansas discretionary exception applies “whether or not the discretion is abused and regardless of the level of discretion involved.” KSA 75-6104(e). The courts focus on whether the decision is one that the legislature intended to put beyond judicial review. The nature and quality of the discretion exercised is examined to determine if the exception applies. The closer the decision is to a policy de- cision the closer it is to being beyond judicial review. 361 The Iowa DOT stated that its Supreme Court in Metier v. Cooper362 “applied the [Dalehite] plan- ning/operational dichotomy and held [that] the placement of a deer crossing sign was not immu- nized by the discretionary function exception. However, now the Iowa Supreme Court applies the two step analysis of Gaubert.”363 There are other state courts that have not adopted the Supreme Court’s approach in Gaubert.364 In Trujillo v. Utah Department of of Mr. Maruszczak, he is not entitled to immunity from suit un- der NRS 41.032(2). Id. at 447, 168 P.3d at 729 (footnote omitted). 359 Responses of Caltrans, Indiana DOT, Missouri Highway and Transportation Commission (no discre- tionary function exemption), Ohio DOT, Oklahoma DOT, Texas DOT, Utah DOT, Washington State DOT, and Wisconsin DOT. Five departments said that the decision was not applicable in their jurisdiction. Re- sponses of Alabama DOT (sovereign immunity), Arkan- sas Highway and Transportation Department, Michi- gan DOT, New York State DOT, and Pennsylvania DOT. Two departments did not respond to the question. Responses of Arizona DOT and New Hampshire DOT. 360 Response of Nebraska Department of Roads (cit- ing Jasa by Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d 281 (1994), and First Nat’l Bank of Omaha v. State, 241 Neb. 267, 488 N.W.2d 343 (1992)). 361 Response of Kansas DOT. 362 378 N.W.2d 907, 910 (Iowa 1985). The Iowa DOT also cited Schneider v. State, 789 N.W.2d 138, 147 (Iowa 2010) (flooding) and Davison v. State, 671 N.W.2d 519, 521–22 (Iowa App. 2003) (highway maintenance), but noted that Indian Towing was quoted with approval in Schmitz v. City of Dubuque, 682 N.W.2d 70, 74 (Iowa 2004) (bike trail construction). 363 Metier v. Cooper, 378 N.W.2d 907, 910 (Ia. 1985). 364 See Trujillo v. Utah Dep’t of Transp., 1999 Ut. App. 227, 986 P.2d 752 (1999); Tseu ex rel. Hobbs v. Jeyte, 88 Haw. 85, 90, 962 P.2d 344, 349 (1998); and Rick v. State Dep’t of Transp. & Dev., 630 So. 2d 1271 (La. 1994). Transportation,365 the Supreme Court of Utah expressly declined to embrace the Gaubert deci- sion. In Trujillo, the court ruled that the trans- portation department’s formulation of a traffic control plan to use barrels rather than barriers at an accident location was not a policy-level deci- sion.366 Moreover, the court held that the failures to reduce speed in a construction zone as called for in the construction plan, investigate accidents, or consider corrective action in response to notice of a dangerous condition were all operational-level activities.367 In Tseu ex rel. Hobbs v. Jeyte,368 the Supreme Court of Hawaii stated that it had never adopted the reasoning in Gaubert and that it would be “di- rectly contrary to its previous holdings on the dis- cretionary function exception under Hawaii law to do so.”369 Other state courts continue to apply the Dalehite planning–operational test of discretion, sometimes without even mentioning the later Gaubert case.370 Nevertheless, the Gaubert analy- sis of the discretionary function exemption is more favorable to transportation departments and other public entities. The approach in Gaubert allows for immune discretion to be exercised at all levels of a public entity’s decision-making, includ- ing at the so-called operational level. Neverthe- less, based on the survey and case law, it appears that more state courts follow the analysis in Dalehite rather than the approach in Gaubert in construing a state tort claims act’s discretionary function exemption.371 365 1999 Utah App. 227, 986 P.2d 752 (Utah 1999). 366 Id. at 33, 986 P.2d at 762. 367 Id. at 34, 986 P.2d at 762. 368 Tseu ex rel. Hobbs, 88 Haw. 85, 962 P.2d 344 (1998). 369 Id. at 89, 962 P.2d at 348. 370 Taylor-Rice v. State, 91 Haw. 60, 979 P.2d 1086, 1104 (1999) (failure to replace a guardrail was opera- tional-level act with no mention of Gaubert); State v. Livengood, 688 N.E.2d 189, 196 (Ind. App. 1997) (design and installation of replacement of a portion of a guard- rail to comply with a safety standard was operational- level task and not immune); and Schroeder v. Minne- sota, 1998 Minn. App. LEXIS 1436 (1998) (Unrept.) (decision to patch pavement where it met a bridge was an operational-level activity). 371 Johnson v. Dep’t of Transp., 2004 UT App 284, P22 n.4, 98 P.3d 773, 780 n.4 (Utah App. 2004) (stating that a “decision to allow the lane adjacent to the cutouts to remain open at night was clearly not a discretionary function since the decision was made by a UDOT on-site inspector who acts at the operational level” and follow- ing Trujillo v. Utah Dep’t of Transp., 1999 Utah App. 227, 986 P.2d 752, 760 n.2 (Utah 1999), which rejected the Gaubert approach).

33 B. The Discretionary–Ministerial Distinction Some courts in MUTCD cases also rely on the discretionary–ministerial distinction in deciding government tort liability. It has been held that the issue of whether a duty is a ministerial one is a question of law for the court to decide.372 [A] ministerial act is defined as absolute, certain, and im- perative, involving merely the execution of a specific duty arising from fixed designated facts or the execution of a set task imposed by a law prescribing and defining the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion, being a simple, definite duty arising under and because of stated conditions and imposed by law. 373 Four departments that responded to the survey reported that in their states the courts use the discretionary–ministerial test of immunity to de- termine a transportation department’s or other public agency’s tort liability.374 KDOT stated that there are a number of decisions in Kansas holding that the discretionary exception does “not apply to a ministerial act.”375 Nine departments reported that the discretionary–ministerial test is not used in their states.376 Similar to the Supreme Court’s holding in Gaubert, one court has held that “[i]n order to find a duty ‘ministerial,’ we must find a ‘governing rule or standard’ so clear and specific that it di- rects the government actor without calling upon the actor to ascertain how and when to implement that rule or standard.”377 In that case, however, the court held that the omission of warning signs was not a violation of a ministerial duty. “[I]n or- der to establish a ministerial duty under this statute, ‘standard uniform traffic control prac- tices’ must exist and delineate at which specific 372 Am. Family Mut. Ins. Co., 2012 WI App 60 at 22, 816 N.W.2d 340, 348 (2012). 373 Hansen v. South Dakota DOT, 1998 SD 109, 584 N.W.2d 881, 886 (citation omitted) (internal quotation marks omitted). 374 Responses of Caltrans; Oklahoma DOT (citing Walker v. City of Moore, 1992 Okla. 73, 837 P.2d 876 (1992)); Washington State DOT; and Wisconsin DOT. 375 Response of Kansas DOT. 376 Responses of Indiana DOT, Iowa DOT, Michigan DOT, Missouri Highway and Transportation Commis- sion, Nebraska Department of Roads, Nevada DOT, Ohio DOT, Pennsylvania DOT, and Utah DOT. Three departments advised that the question was not applica- ble to them. Responses of Alabama DOT (sovereign im- munity), Arkansas Highway and Transportation De- partment, and Virginia DOT. Two departments did not respond. Responses of Arizona DOT and New Hamp- shire DOT. 377 Truman v. Griese, 762 N.W.2d 75, 81 (2009). points signs must be erected at this type of inter- section.”378 In Ford v. New Hampshire Department of Transportation,379 the court also distinguished be- tween discretionary and ministerial functions: As the introduction to the MUTCD explains, those portions of the manual that are termed “Guidance” refer to “a statement of recommended, but not mandatory, practice in typical situations.” …By contrast, those portions of the manual that are designated “Standards” refer to “a statement of required, mandatory, or specifi- cally prohibitive practice regarding a traffic control device.” Id. at I-2; see Johnson v. Agency of Transp., 180 Vt. 493, 904 A.2d 1060, 1063 (Vt. 2006) (only MUTCD “Standards” are binding on Vermont’s Agency of Trans- portation). The MUTCD provision upon which the plaintiff relies is “Guidance,” and is, “therefore only a rec- ommended practice, not a mandate upon government de- cision makers.” 380 An example is the case of American Family Mutual Insurance Co. v. Outagamie County,381 which involved the County’s use of two “flaggers” at the time of road construction in 2009. In dis- cussing the ministerial duty exception to govern- mental immunity,382 the court explained that “[a] duty is ministerial, as opposed to discretionary, if it is ‘absolute, certain and imperative, involving merely the performance of a specific task…the law…prescribes.”383 The court held that the plain- tiffs failed to demonstrate “any statute, regula- tion, or policy” that imposed a specific duty on the County.384 Moreover, “[h]ow to safely control traf- fic in a construction zone is an inherently discre- tionary decision.”385 Whatever duty the County had was “not precise and detailed enough to eliminate the County’s discretion.”386 The court observed that the standard in the 2003 MUTCD did not say “anything about the number of flag- gers a municipality must use in a given situation. It does not state that one flagger cannot control multiple directions of traffic.”387 378 Id. at 82. See also Ford v. N.H. DOT, 163 N.H. 284, 37 A.3d 436 (2012) (the court’s opinion distinguish- ing between discretionary and ministerial functions with respect to the MUTCD). 379 163 N.H. 284, 37 A.3d 436 (N.H. 2012). 380 Id., 163 N.H. 284, 37 A.3d at 446. 381 2012 WI App 60, 341 Wis. 2d 413, 816 N.W.2d 340 (2012). 382 WIS. STAT. § 893.80(4). 383 Am. Family Mut. Ins. Co., 2012 WI App. 60, at 11, 341 Wis. 2d at 422 (citation omitted). 384 Id. at 13, 341 Wis. 2d at 423. 385 Id. at 14, 341 Wis. 2d at 423. 386 Id. at 15, 341 Wis. 2d at 424. 387 Id. at 21, 341 Wis. 2d at 427.

34 C. Whether to Distinguish Between Functions and Acts in Performing Functions A 2013 case holds that if a function is discre- tionary or ministerial, every act of the govern- ment in performing the function is likewise dis- cretionary or ministerial. Thus, if a transportation department is liable for the performance of main- tenance activity, all acts in the performance of the maintenance function are also nondiscretionary and may not be used to carve out an exception so as to create, for example, immunity for decisions that involve some discretion in the performance of a maintenance function. In Little v. Mississippi Department of Transpor- tation,388 the Supreme Court of Mississippi over- ruled prior, conflicting precedents in the state when it ruled in a case involving personal injuries and property damage caused by a tree that had fallen across the highway. Little alleged that the Mississippi DOT was negligent in “(1) failing to adequately maintain, repair, and inspect the highway; (2) failing to remove dead or dangerous trees near the road; and (3) failing to properly pa- trol, find, and remove the leaning tree before it fell.”389 The issue was whether the Department had immunity under the discretionary function exemption in the Mississippi Tort Claims Act (MTCA).390 The Mississippi Supreme Court re- versed and remanded the circuit court’s dismissal of the case, affirmed by the Court of Appeals, that the Department was entitled to immunity. First, the court strictly construed the language in the discretionary function exemption391 in hold- ing that “[t]he language of Section 11-46-9(1)(d) requires us to look at the function performed—not the acts that are committed in furtherance of that function—to determine whether immunity exists.”392 The Little court held that “[a] ministe- rial function is one that is ‘positively imposed by law,’”393 and held further that when a function is a ministerial function, “there is no immunity for the acts performed in furtherance of the function.”394 Second, the court distinguished the Little case from its decision in Mississippi Transportation Commission v. Montgomery,395 because in Mont- 388 129 So. 3d 132 (Miss. 2013). 389 Id. at 134–35. 390 Id. at 135. 391 MISS. CODE ANN. § 11-46-9(1)(d) (Rev. 2012) (pro- viding that a government entity and its employees are immune from liability for claims arising from “the exer- cise or performance or the failure to exercise or perform a discretionary function or duty”). 392 Little, 129 So. 2d at 136. 393 Id. (citation omitted). 394 Id. 395 80 So. 3d 789 (Miss. 2012). gomery, although the court held that the duty to maintain highways is not discretionary, the legis- lature had “extended discretion” to the placement of warning signs.396 The court observed that in Montgomery, absent the existence of immunity for the placement of warning signs, the Commission would not have had immunity for highway main- tenance.397 Third, the principle of law reversed by the Little court was its prior holding that “while a certain act may be mandated by statute, how that act is performed can be a matter of discretion.”398 Now, however, every act performed in furtherance of a governmental function follows the immunity or lack thereof that attaches to the function: “It is the function of a governmental entity—not the acts performed in order to achieve that function— to which immunity does or does not ascribe under the MTCA.”399 Therefore, if “‘a statute mandates the govern- ment or its employees to act, all acts fulfilling that duty are considered mandated as well, and neither the government nor its employees enjoys immunity.’”400 The DOT is not entitled to immu- nity for any specific act or acts committed in fur- therance of a function. In this case there could be no immunity for an act taken in performing a function that is a ministerial function.401 However, as in the case of sign placement, “[i]f the Legisla- ture…wishes to ascribe immunity to acts rather than functions, it is certainly free to do so, but it has not done so yet.”402 D. Whether Prioritizing by a Transportation Department Is a Defense in an MUTCD Case For some courts, discretion in the implementa- tion of a safety feature could be affected by a gov- ernmental unit’s prioritizing of conditions that need attention, the balancing of funding priori- ties, scheduling, consideration of traffic patterns, and other matters.403 In a Texas case, the court stated that “to impose liability for the failure to timely implement a discretionary decision could penalize a governmental unit for engaging in pru- dent planning and paralyze it from making safety-related decisions.”404 The same “ration- 396 Little, 129 So. 2d at 137 (quoting Montgomery, 80 So. 3d at 798). 397 Id. (quoting Montgomery, 80 So. 3d at 798). 398 Id. (citation omitted). 399 Id. at 138 (emphasis in original). 400 Id. (quoting Montgomery, 80 So. 3d at 798). 401 Id. 402 Id. 403 Fort Bend County Toll Road Auth. v. Olivares, 316 S.W.3d 114, 120 (2010). 404 Id.

35 ale…likewise applies to [the authority’s] decision regarding when to install the planned traffic- monitoring cameras because a governmental unit’s plans regarding the safety features of a roadway are discretionary.”405 There is, however, some contrary authority. A federal district court in the District of Columbia in a MUTCD case “rejected the government’s in- vocation of general ‘economic considerations,’” reasoning that “[b]udgetary constraints…underlie virtually all government activity,” and that to permit general economic concerns to trigger the discretionary function exception “would allow the exception to swallow the [Federal Tort Claims Act’s] sweeping waiver of sovereign immunity.”406 E. The Requirement that There Be an Actual Exercise of Discretion Important to the discretionary function exemp- tion in some states is that a public entity, if chal- lenged, must be able to prove that it actually ex- ercised its discretion before making a decision; that the discretion it made involved policy consid- erations; and/or that the public entity consciously balanced the risks and benefits of the proposed decision. In a 1997 California case, it was held that a detailed plan drawn up by a competent engineering firm and approved by the city engi- neer in the exercise of his discretionary authority is “persuasive evidence” of the element of prior approval.407 However, more recently in Casella v. Township of Manalapan,408 a New Jersey court reversed the grant of a summary judgment for the township because the record did not demonstrate that any governmental official or body actually approved the specific location of the stop line and sign at issue. Furthermore, no plans were produced indi- cating a particular design for the placement of the stop line and sign at the intersection. There was no “documentation remotely demonstrat[ing] that the installation complied with MUTCD standards, or, more importantly, that anyone acting on defendant’s behalf, concluded that it did and approved the placement.”409 In another New Jersey case involving the state’s tort claims act and the MUTCD, the court held that for the governmental entity to qualify for immunity there must be a showing of the actual 405 Id. at 121 (citation omitted). 406 Haynes, 539 F. Supp. 2d 393, at 403 (D. D.C. 2008) (internal quotation marks omitted) (following Cope v. Scott, 310 U.S. App. D.C. 144, 45 F.3d 445, 451 (D.C. Cir. 1995)). 407 Grenier v. City of Irwindale, 57 Cal. App. 4th 931, 940, 67 Cal. Rptr. 2d 454, 459 (Cal. App. 1997). 408 2011 N.J. Super. Unpub. LEXIS 957, at 1 (2011). 409 Id. at 13–14. exercise of quasi-legislative or quasi-judicial deci- sion-making.410 Although the New Jersey statute grants immunity for the failure to provide signals and signs,411 the record “provide[d] no basis for a determination that the decision to use the 90- degree left turn signs at issue is subject to N.J.S.A. 59:2-3(a) immunity. It was clearly an operational decision and, as such, subject to the standards set forth in N.J.S.A. 59:4-2.” (Emphasis added.)412 The court held that a dangerous condi- tion may have been created when the county installed signs that were misleading.413 In an Indiana case, Hanson v. County of Vigo,414 a vehicle struck the young plaintiff while she was riding her bicycle in an intersection.415 The county board had approved a plan for the placement and replacement of signs on county roads; however, the board approved the plan without delibera- tion.416 Hanson conceded that the County’s deci- sion to place and replace signs at intersections was a discretionary function and therefore immune, but argued that the County had been negligent in implementing the decision, in par- ticular “for failing to prioritize placement at unmarked intersections prior to replacing signs at intersections which were currently marked.”417 The court stated that it relied on the “‘plan- ning–operational’ standard” in construing the dis- cretionary function exemption in the Indiana Tort Claims Act.418 However, the County failed to introduce evidence “proving that implementation of the plan had been considered by the Board,” or that the Board “consciously balance[ed] risks and benefits of the Board’s decision.”419 Rather, “it was the county engineer who decided how to imple- ment the Board’s plan…but his actions did not rise to the level of executive judgments that should be afforded protection under the governmental immunity doctrine.” (Emphasis added.)420 The court remanded the case for a “determination of 410 Fitzgerald v. County of Sussex, 2008 N.J. Super. Unpub. LEXIS 2029 (2008). 411 Id. at 13. 412 Id. at 15 (citation omitted). 413 Id. at 19. 414 659 N.E.2d 1123 (Ind. App. 1996). 415 Id. at 1125. 416 Id. See also Madden v. Ind. Dep’t of Transp., 832 N.E.2d 1122, 1128 (Ind. 2005) (stating that “nor may we find discretionary function immunity based solely on testimony by a representative of the governmental en- tity that meetings were held[] without written docu- mentation of the meetings”). 417 Hanson, 659 N.E.2d at 1126. 418 Id. (citing IND. CODE § 34.4-16.5-3). 419 Id. 420 Id. (citation omitted).

36 whether the Board engaged in a decision-making process regarding the implementation of the sign plan” and whether “the implementation decision resulted from a conscious balancing of risks and benefits.”421 It may be recalled that under the MUTCD no documentation is required of engineering judg- ments, but that documentation is required of engineering studies.422 However, to have the bene- fit of discretionary immunity in some states, a transportation department may need records or other proof that discretion actually was exercised in making a decision involving the MUTCD. F. The Exercise of Discretion and Recordkeeping The foregoing discussion demonstrates the importance in some jurisdictions of being able to prove that a transportation department exercised its discretion prior to making a decision, including a decision involving the MUTCD. First, 12 transportation departments reported that they have adopted a policy or statement of procedures to be followed concerning how their department’s employees or others acting on behalf of the department (e.g., a contractor) are to com- ply with the MUTCD.423 INDOT described its policy, which is intended to assure its department’s compliance with the MUTCD. • The Indiana Design Manual (IDM) recommends that INDOT designers and our consultants refer to the MUTCD for proper selection and detailing of permanent and temporary traffic control devices. • Our standard electronic ([E]xcel based) program for performing traffic signal studies (warrant analysis) in- corporates all the MUTCD warrant criteria. Our policy on signal study preparation and QA review requires output from this program and ties INDOT’s Traffic Engineering staff to compliance. The policy directly refers to [the] Indiana Code that incorporates the MUTCD. 421 Id. at 1127. 422 2009 MUTCD, supra note 1, at 14. 423 Responses of Arizona DOT; Arkansas Highway and Transportation Department; Iowa DOT; Indiana DOT; Michigan DOT; Nevada DOT (stating that the department complies with NEV. REV. STAT. § 484A.430 and NEV. ADMIN. CODE § 408.144); New York State DOT (citing Highway Design Manual); Ohio DOT; Texas DOT; Utah DOT; Virginia DOT; and Wisconsin DOT. Eight departments had not adopted such a policy or statement of procedures. Responses of Alabama DOT; Caltrans; Kansas DOT; Nebraska Department of Roads; Oklahoma DOT; New Hampshire DOT; Pennsylvania DOT; and Washington State DOT (stating, however, that a policy or procedure was part of the department’s “standards/specifications/design manual”). • INDOT’s Standard Construction Specifications incorpo- rate the MUTCD with regard to temporary traffic control devices, signing, and pavement markings. So INDOT’s contractors are also obligated to comply. • INDOT’s Work Zone Traffic Control Guidelines provides requirements and recommendations for INDOT performed maintenance work. It is based on and refers to the MUTCD. 424 INDOT also stated that “[c]hanges in intersec- tion control, parking restrictions, speed limits and lane control are documented through the Official Action (Executive Order) process”; that “[r]equests for non-standard signs are accompanied by a description and need for the sign”; that Roadway Safety Audits (studies) on specific locations may lead to [a] change in traffic control devices,” the reasoning for which will be given in a report; and that “[s]ome programmatic, state wide safety initiatives are undertaken after study,” initiatives for which the department will have records. Second, 13 departments reported that when making decisions on whether to install, replace, or change a traffic control device at a given location or to do so as part of a highway safety plan, the departments keep a record of what they consid- ered or evaluated prior to making the decision and taking action.425 TxDOT advised that its re- cord-keeping “depends upon the type of traffic control device and the status of the location.”426 The department stated that “there is no require- ment to keep records for all devices installed,” but that “[l]ocal offices do document this type of information for justification purposes—especially traffic studies [and] signal warrants.”427 The Arizona DOT reported that that “[i]n gen- eral, no,” it does not keep records. However, [i]n limited situations where compliance with a Guidance or Standard is infeasible, documentation of a variance is sometimes provided on plans or drawings. For example, where the location of a warning sign cannot conform to Table 2C-4 (such as a W4-1 merge warning sign where the distance in the table would place it in advance of the 424 Response of Indiana DOT. 425 Responses of Alabama DOT, Caltrans, Indiana DOT, Iowa DOT, Kansas DOT, Michigan DOT, Mis- souri Highway and Transportation Commission, New York State DOT (stating that the project file reflects the basis for the decision), Oklahoma DOT, Pennsylvania DOT, Utah DOT, Virginia DOT, and Washington State DOT. Four departments stated that whether to keep records depends on the circumstances. Responses of Nebraska Department of Roads, Ohio DOT, Texas DOT, and Wisconsin DOT. Four departments reported that such records are not kept. Responses of Arizona DOT, Arkansas Highway and Transportation Department, Nevada DOT, and New Hampshire DOT. 426 Response of Texas DOT. 427 Id.

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Effect of MUTCD on Tort Liability of Government Transportation Agencies Get This Book
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TRB’s National Cooperative Highway Research Program (NCHRP) Legal Research Digest 63: Effect of MUTCD on Tort Liability of Government Transportation Agencies examines the effect that the Manual on Uniform Traffic Control Devices (MUTCD) has had on the manner in which government tort liability has developed; the extent to which federal, state, and other governments have adopted tort claims acts and laws that have waived or greatly curtailed sovereign immunity; and the impact of peculiar state laws.

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