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From page 13... ... IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION A The Meaning of the Discretionary Function Exemption The primary defense to a public entity's tort liability for negligent design, construction, and maintenance is based on the doctrine now codified in nearly all state tort claims acts: certain actions undertaken by governments are "discretionary" in nature, and, therefore, are immune from liability. Read the entire page →
From page 14... ... Gaubert,144 the Supreme Court held that there is no distinction between planning- and operational-level actions.145 For example, if a government regulation allows a government employee to exercise discretion, then "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."146 Moreover, the Court held that "it must be presumed that the agent's acts are grounded in policy when exercising that discretion."147 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. In Gaubert, the Court made it clear that the exercise of immune discretion is not confined to the so-called policy or planning level. Read the entire page →
From page 15... ... Although the rationale of the Supreme Court's decision in United States v. Gaubert, supra, is more favorable to public entities and allows for immune discretion to be exercised at all levels of a public entity's decision-making, including at the so-called operational level, the majority of courts appears to adhere to the rationale that the only exercise of discretion that is discretionary and therefore is immune from liability is that discretion that is exercised at the policy or planning level. Read the entire page →
From page 16... ... . walking trail in Dubuque.177 The court reversed the trial court's dismissal of the case on the basis that the city had immunity.178 The plaintiff alleged that the city was negligent in the design, construction, and maintenance of the trail built in 1973 or 1974.179 The city had overlaid the deteriorated surface of the trail with another layer of asphalt in 1991; however, the city did not raise the shoulders of the trail, the plaintiff's principal claim of negligence.180 Although AASHTO standards for the construction of such trails that discourage construction with a drop-off were not published when the trail was built originally, the AASHTO standards were in effect in 1991 when the asphalt overlay was added.181 The issue was whether the city's action was protected by the discretionary function exemption in the Iowa Code that was applicable to the liability of cities.182 The court held that the functions alleged to have been performed negligently in regard to the bike trail were entitled to immunity, because they involved "‘policy formation, as distinguished from the day-to-day activities of persons not engaged in determining the general nature of the Government's business….'"183 The court observed that "[o] Read the entire page →
From page 17... ... s for negligent design, the [South Carolina Tort Claims] Act provides absolute governmental immunity from liability for loss resulting from the design of highways and other public ways."199 In the Summer case, the court held that the department would be immune even if it had been on notice that the design of the intersection was dangerous.200 Other cases have found that a public entity had design immunity for various reasons.201 However, design immunity only ap gerald v. Read the entire page →
From page 18... ... D2. Effect of Known Dangerous Conditions on Design Immunity Although design immunity is recognized generally, some courts have held that there is an exception to design immunity if the public entity had notice209 of a dangerous condition of a public improvement because of its design and failed to take appropriate action.210 In such a case, the court may hold that the public entity had a duty to correct the dangerous condition or to give adequate notice of it to the traveling public.211 However, a state's statute may exclude a public entity's liability for inadequate design as illustrated by a Colorado case, Swieckowski v. Read the entire page →
From page 19... ... Design Immunity Statutes In addition to a discretionary function exemption in their tort claims acts, a few states have a statutory provision granting immunity specifically for claims arising out of an approved plan or design of a public improvement. In California, for example, a public entity is immune from liability for an injury caused by the plan or design of a public project that was approved in advance by a public body or employee exercising discretionary authority to give approval if there were any substantial evidence upon which a reasonable employee or public body could have approved the plan or design.226 For a public entity to have design immunity, it must establish that there was a causal relationship between the plan or design and the accident; that there was discretionary approval of the plan or design prior to construction; and that there was substantial evidence supporting the reasonableness of the adoption of the plan or design.227 As for approval, it has been held that a detailed plan drawn up by a competent engineering firm and approved by the city engineer in the exercise of his discretionary authority is "persuasive evidence" of the element of prior approval.228 Although the California statute invites the court to consider whether approval of the plan or design by the public body was reasonable, the New Jersey design immunity statute simply requires approval by one exercising discretionary authority to give such approval.229 Even in states having a design immunity statute, the statute may not provide necessarily for immunity in every situation involving an allegedly defectively designed project. Read the entire page →
From page 20... ... County of Sacramento,232 the plaintiff alleged that he was injured when he lost control of his bicycle while rounding a curve on the county's negligently designed bike trail.233 The county allegedly failed to use California's design criteria and uniform specifications as required by the California Bikeways Act.234 However, the California Bikeways Act was not in effect when the bicycle trail was designed.235 Although the opinion focuses almost exclusively on motion and summary judgment practice, the court affirmed the trial court's dismissal of the case on summary judgment, first, because the design of the bikeway was protected by design immunity under California Government Code Section 830.6 and was not subject to the statutory trap exception in Section 830.8.236 Second, in doing so, the appellate court agreed with the trial court's ruling that "[t] he defendant negated an essential element of each theory of the plaintiff's claim, namely causation."237 Guidance A public entity ordinarily has immunity regarding the plan or design of bikeways or other public improvements because of a discretionary function exemption in a tort claims act, or in a few states by virtue of a specific design immunity statute, either or both of which may be applicable. Read the entire page →

From page 13...

... IMMUNITY OF PUBLIC ENTITIES FOR THE EXERCISE OF THEIR DISCRETION A The Meaning of the Discretionary Function Exemption The primary defense to a public entity's tort liability for negligent design, construction, and maintenance is based on the doctrine now codified in nearly all state tort claims acts: certain actions undertaken by governments are "discretionary" in nature, and, therefore, are immune from liability.

Read the entire page →

From page 14...

... Gaubert,144 the Supreme Court held that there is no distinction between planning- and operational-level actions.145 For example, if a government regulation allows a government employee to exercise discretion, then "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."146 Moreover, the Court held that "it must be presumed that the agent's acts are grounded in policy when exercising that discretion."147 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. In Gaubert, the Court made it clear that the exercise of immune discretion is not confined to the so-called policy or planning level.

Read the entire page →

From page 15...

... Although the rationale of the Supreme Court's decision in United States v. Gaubert, supra, is more favorable to public entities and allows for immune discretion to be exercised at all levels of a public entity's decision-making, including at the so-called operational level, the majority of courts appears to adhere to the rationale that the only exercise of discretion that is discretionary and therefore is immune from liability is that discretion that is exercised at the policy or planning level.

Read the entire page →

From page 16...

... . walking trail in Dubuque.177 The court reversed the trial court's dismissal of the case on the basis that the city had immunity.178 The plaintiff alleged that the city was negligent in the design, construction, and maintenance of the trail built in 1973 or 1974.179 The city had overlaid the deteriorated surface of the trail with another layer of asphalt in 1991; however, the city did not raise the shoulders of the trail, the plaintiff's principal claim of negligence.180 Although AASHTO standards for the construction of such trails that discourage construction with a drop-off were not published when the trail was built originally, the AASHTO standards were in effect in 1991 when the asphalt overlay was added.181 The issue was whether the city's action was protected by the discretionary function exemption in the Iowa Code that was applicable to the liability of cities.182 The court held that the functions alleged to have been performed negligently in regard to the bike trail were entitled to immunity, because they involved "‘policy formation, as distinguished from the day-to-day activities of persons not engaged in determining the general nature of the Government's business….'"183 The court observed that "[o]

Read the entire page →

From page 17...

... s for negligent design, the [South Carolina Tort Claims] Act provides absolute governmental immunity from liability for loss resulting from the design of highways and other public ways."199 In the Summer case, the court held that the department would be immune even if it had been on notice that the design of the intersection was dangerous.200 Other cases have found that a public entity had design immunity for various reasons.201 However, design immunity only ap gerald v.

Read the entire page →

From page 18...

... D2. Effect of Known Dangerous Conditions on Design Immunity Although design immunity is recognized generally, some courts have held that there is an exception to design immunity if the public entity had notice209 of a dangerous condition of a public improvement because of its design and failed to take appropriate action.210 In such a case, the court may hold that the public entity had a duty to correct the dangerous condition or to give adequate notice of it to the traveling public.211 However, a state's statute may exclude a public entity's liability for inadequate design as illustrated by a Colorado case, Swieckowski v.

Read the entire page →

From page 19...

... Design Immunity Statutes In addition to a discretionary function exemption in their tort claims acts, a few states have a statutory provision granting immunity specifically for claims arising out of an approved plan or design of a public improvement. In California, for example, a public entity is immune from liability for an injury caused by the plan or design of a public project that was approved in advance by a public body or employee exercising discretionary authority to give approval if there were any substantial evidence upon which a reasonable employee or public body could have approved the plan or design.226 For a public entity to have design immunity, it must establish that there was a causal relationship between the plan or design and the accident; that there was discretionary approval of the plan or design prior to construction; and that there was substantial evidence supporting the reasonableness of the adoption of the plan or design.227 As for approval, it has been held that a detailed plan drawn up by a competent engineering firm and approved by the city engineer in the exercise of his discretionary authority is "persuasive evidence" of the element of prior approval.228 Although the California statute invites the court to consider whether approval of the plan or design by the public body was reasonable, the New Jersey design immunity statute simply requires approval by one exercising discretionary authority to give such approval.229 Even in states having a design immunity statute, the statute may not provide necessarily for immunity in every situation involving an allegedly defectively designed project.

Read the entire page →

From page 20...

... County of Sacramento,232 the plaintiff alleged that he was injured when he lost control of his bicycle while rounding a curve on the county's negligently designed bike trail.233 The county allegedly failed to use California's design criteria and uniform specifications as required by the California Bikeways Act.234 However, the California Bikeways Act was not in effect when the bicycle trail was designed.235 Although the opinion focuses almost exclusively on motion and summary judgment practice, the court affirmed the trial court's dismissal of the case on summary judgment, first, because the design of the bikeway was protected by design immunity under California Government Code Section 830.6 and was not subject to the statutory trap exception in Section 830.8.236 Second, in doing so, the appellate court agreed with the trial court's ruling that "[t] he defendant negated an essential element of each theory of the plaintiff's claim, namely causation."237 Guidance A public entity ordinarily has immunity regarding the plan or design of bikeways or other public improvements because of a discretionary function exemption in a tort claims act, or in a few states by virtue of a specific design immunity statute, either or both of which may be applicable.

Read the entire page →

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