Effect of MUTCD on Tort Liability of Government Transportation Agencies (2014) / Chapter Skim
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Pages 29-36
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29 section because the two signals were not continuously 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)
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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 attempted to provide guidance.335 The courts tend to follow one of three approaches when deciding which functions qualify for immunity. The approaches are derived principally from the U.S.
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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 implementing the decision is not protected by the discretionary function exemption in the FTCA.
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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]
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33 B The Discretionary–Ministerial Distinction Some courts in MUTCD cases also rely on the discretionary–ministerial distinction in deciding government tort liability.
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34 C Whether to Distinguish Between Functions and Acts in Performing Functions A 2013 case holds that if a function is discretionary or ministerial, every act of the government in performing the function is likewise discretionary or ministerial.
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35 ale…likewise applies to [the authority's] decision regarding when to install the planned trafficmonitoring cameras because a governmental unit's plans regarding the safety features of a roadway are discretionary."405 There is, however, some contrary authority.
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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 judgments, but that documentation is required of engineering studies.422 However, to have the benefit 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.
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