Aguehounde v. District of Columbia

AGUEHOUNDE, Georges al., Appellant,

et

v. COLUMBIA, Appellee.

DISTRICT OF COLUMBIA, Appellant,

DISTRICT OF DAVIS, Appellee.

Erica 93-CV-1116,

Nos. 93-CV-1213. Appeals.

District of Columbia Court

Argued Feb. Sept.

Decided failing

for to look in the direction of the stepped vehicle which struck him before he into the crosswalk. For the reasons set forth below, grant we affirm the trial court’s judgment District’s motion for as a matter of law. Malone, Patrick A. with whom Jacob A. I.

Stein, DC, brief, Washington, was on the for approximately p.m. April At 5:00 on appellant Aguehounde. 1990,Aguehounde by was struck a car driven appellee Thomas H. Tallbot for Davis. (“Davis”) stepped Erica Davis after he Murasky, Corporation Donna Assistant into the crosswalk on Fessenden Street as he Counsel, Ruiz, Acting with whom Vanessa walked north on the east side Wisconsin (which Corporation Counsel at the time brief was Avenue runs in a north-north- filed, direction) Reisehel, Deputy and Charles L. in Cor- northwest west/south-southeast Counsel, DC, vehicle, poration Washington, Washington, were on D.C. Davis St., appellee proceeding the brief for District of Columbia. was east on Fessenden (which direction) in runs an struck east/west STEADMAN, SCHWELB, Before Aguehounde in the crosswalk on the east side KING, Judges. Associate Aguehounde of Wisconsin Ave. testified that approached as he the Fessenden St./Wiscon- Opinion Judge for the court Associate intersection, sin he three Ave. and when was KING. steps or four from the corner of southeast intersection, that he looked to his left and did Dissenting opinion by Judge Associate approaching not see vehicles from the p. SCHWELB west on Fessenden He further testi- Street. KING, Judge: Associate fied that when he corner he saw reached the appeal presents light facing green This whether that him that cars, direction, timing light by pointed westerly in a municipal employee stopped right is a act to his on Fessenden Street. municipality which would make the immune He could not recall whether the “walk” or liability injuries proximately sign Aguehounde from caused “don’t on. ac- walk” hold, knowledged stop the interval set. We. under the that he did not at the cor- here, presented circumstances that stepping such ner before into the crosswalk. He discretionary, thereby conferring looking act im- also stated that he did not remember munity liability him seeing approach from on the District. to his left or Davis’s car stepped from that direction as he into the against negligence action the Dis- intersection. injuries resulting trict for from an automo- crosswalk, striking pedestrian Davis, car bile the driver of the which struck pedestrian, Georges Aguehounde Aguehounde, light facing appellant testified that green (“Aguehounde”), of the trial her turned from red to when she was seeks reversal judgment approximately one block from the Wisconsin court’s favor of the District (“District”) and reinstatement of Ave. intersection. She further testified Columbia green jury’s Aguehounde favor. the traffic was still and she was verdict his granting traveling approximately per hour as contends the trial court erred miles judgment proceeded through District’s motion for as a matter of she the intersection easterly on ground law on the the District was her course Fessenden St. She liability Aguehounde standing immune from tort for the discretion- first noticed passed through ary act of of traffic curb as she the intersection Aguehounde then Aguehounde also maintains that into the crosswalk. took intervals. ruling big step he out in front of her car while it was the trial court erred Ague- contributorily negligent Davis testified that as a matter of law the crosswalk. Aguehounde looking away from ear the District’s contention hounde was her contributorily negligent. had been she saw him look in her never direction. She brakes, applied her struck but nonetheless judg- Thereafter, moved 3-5 feet in front of who landed grounds on the ment as a matter law her car. timing a the the of liability, and that immune from tort function injuries As in a result of the sustained the contributorily negligent as Aguehounde was collision, Aguehounde brought his and wife fifty-five page In a of a Memo- matter law. District,1 against negligence action the Order, Judge granted Burgess and randum alleging that: District failed to follow the the motion, concluding the the District’s setting proper engineering standards in the liability because was immune from length the of the “clearance interval” at in- length the of the clearance the to set tersection; failure to caused the District considerations, and interval involved a set a clearance interval of too short dura- adopted spe- not the District had because tion allow to the intersection cars clear taking away engi- the traffic cific directive crosswalks; consequently, and the and establishing timing in inter- neer’s discretion car in Davis’s was still the intersection when Ague- The trial court also ruled vals. Aguehounde stepped into the crosswalk on a contributory negligent as a mat- hounde was green light.2 entering in without ter law the intersection of steps to his own taking reasonable ensure May, juryA trial was in conducted safety. Judge Burgess. before The District’s motion judgment for as a of on the matter law 93-CV-1116, Ague in appeal, No. On it ground that was immune from suit in the trial erred hounde contends setting the the clearance interval was judgment granting the Motion for District’s act, jury was denied. The (1) law, setting alleging that: as a matter of timing of the act, found District’s a ministerial the clearance interval proximate considerations; (2) the clearance was the the Dis devoid of Aguehounde’s injuries, paralyzing by timing cause removed discretion the trict formula; $7,318,313.20 damages, him awarded the national traffic adopting $602,913 immunity finding and his wife on her claim for loss of on the trial court’s factual Amendment;3 addition, rejected jury consortium. In issue violated Seventh District, Aguehounde not to consider either of had also named Erica and Caro- do need car, Davis, lyn the driver and owner of the as is dis- issues. Therefore No. 93-CV-12I3 these subsequently defendants. The District filed as missed moot. Davises, seeking against both of the cross-claim May Erica Davis's actions. On contribution for Aguehounde alleged was also that the District granted Aguehounde’s the court motion negligent traffic lanes the width However, the Davises defendants. dismiss as failing replace Street and in on Fessenden pending because of the District’s cross-claim Although missing lights. sun on the traffic visors Davises, against the the court decided to submit negligent jury the District was concluded advisory jury interrogatory an Erica negligence respects, also that this both it found negligence. jury The Davis’s ry returned adviso- Aguehounde’s inju- proximate cause of was not Davis, against concluding that she had verdict claim, Aguehounde’s the District other ries. reject- negligent. jury’s was been The conclusion regular negligent failing in- to conduct was by ed trial court in an order filed on June disposed spections signals, traffic 1993, in which the court found that the evidence by by grant District's negligent and that showed Davis issue. Nei- for verdict on the motion a directed negligent. That action entry jury’s findings the trial court's nor ther separately appealed by the Dis- trial court was these issues been of a directed verdict on trict in No. 93-CV-1213. challenged appeal. in this court’s the event this court reverses the trial law, grant judgment as a matter of governmental 3., of whether a The determination of the trial court’s denial of its seeks a reversal is one of 93-CV-1116, or ministerial function new trial in No. motion the jury, judge, the trial law to be made against cross-claim dismissal of the District’s Inc., see, Neighbors, automobile, Davis, e.g., Wash. North Erica No. driver denied, (D.C.1976), cert. 148 n. 7 we affirm the trial court’s 93-CV-1213. Because (1977), and thus 54 L.Ed.2d 80 entry judgment for the as a matter of law (4) Aguehounde contributorily was not The factor “Y” is the clearance interval ex- negligent entering as a pressed represents “per- matter of law for “T” seconds. time,” crosswalk.4 ception the time it reaction which is perceive yellow light takes a driver to II. by moving his foot from the and react to brake, braking merits, accelerator to the turning Before to the a brief dis- begin. “accepted figure” for “T” is one practices relating cussion of to the Qfi second. The second of the formula lights helpful understanding will be “A”) “accepted calculates the presented. the issue “V” divided clearance interval stop” of a traffic is the amount deceleration rate for a controlled of time allocat- vehicle, yellow light being velocity ed to the ex- which occurs between “V” second, green light green pressed per repre- the for and “A” one street and the feet vehicle, light for the cross street at an senting intersection. the deceleration rate of a sequence At some expressed per per intersections “all-red” in feet second. second added, meaning light is there is a red in each speed limit at the was 25 intersection direction the same time for the duration of mph per Typical or feet second. “A” 36.7 sequence, ordinarily which is no more vary “fairly stop,” values from for a fast purpose conservative, than one or two seconds. The to 15 for a “more comfortable (1) clearance interval is: to allow a driver stop.” part the formula com- The third complete sufficient time to either come to a putes take a car to clear the time would stop entering before to the intersection or by adding This is done the the intersection. crossing clear the intersection before the (“W”) length intersection to the width the light green; keep opposing turns to (“L”) dividing by velocity of the car the pedestrians entering in- traffic and from the traveling per at which the car is feet tersection until the vehicles headed (“V”). general, In 12 feet used as second opposite passed through direction have automobiles, larger the “L” for and a number intersection. longer vehicles such as trucks. In is used for formula, applying greater speed, undisputed It is that in clearance 1985 the the clearance interval and vice shorter interval at the Wisconsin St. Ave./Fessenden versa. coming Davis’s intersection for traffic from seconds, meaning direction was 4.5 involving A six-second clearance interval5 facing traffic on Fessenden would turn St. all-red, yellow and two of four seconds green yellow from 4.5 seconds before which contends should have light facing Ave. traffic on Wisconsin intersection, for the would have been set green. would turn to October allowed vehicles to clear the intersection changed to 4.0 seconds. interval was green light for the crosswalks before the principal used formula pedestrians per- opposing traffic and would of traffic intervals intersection, entry thus maximiz- mit “Required contained in the chart Yellow pedestrian safety. A or four 4.5 second Seconds,” provides: Interval In however, interval, might not neces- = (W L) % Y T + V + + fully sarily permit all traffic to clear the pedestrians permit- intersection before

A V second; reading Aguehounde's perception of 1 a decelera- court's time contention that the trial immunity contrary findings speed "were on the issue and a factor of 36.7 tion rate of findings jury's feet/second, and therefore violated of fact" resulting in a duration of 1.8 sec- Amendment is without merit. formula; the Seventh part a street onds for the second feet, feet, length and the width of 106 car discretionary func- 4. we affirm on the Because speed factor of 36.7 for a dura- same feet/second issue, contributory tion we do not resolve the tion of 3.2 seconds for third negligence issue. Thus, using the total duration these formula. sec- numbers is 1 second +1.8 seconds + 3.2 onds, Richard, Clyde reconstruction ex- the accident 6 seconds. for a total of by Aguehounde, explained pert called by using: a six-second interval was calculated evidence).7 and, consequent- suppress tangible ted to enter intersection of a motion to flow, ly, Further, determining the act whether pedestrian safety, but not when whether discretionary, which determines would maximized. jurisdiction, subject matter the court has III. only considering not confined trial court is heard which was also that evidence Setting Light A. Is Intervals a Traffic all instead, the court consider jury; Discretionary Function? bearing on coming to its attention evidence law, Under common a munici See, e.g., v. Automated issue. Matthews pality is immune from suit for decisions made Serv., 1179-80 Sys. Bus. & pursuant discretion, exercise but not (D.C.1989)(“the has broad discretion which are actions ministerial.6 McKethe finding such determining proceed how (D.C.1991); an v. A.2d WMATA facts, de- [jurisdictional] including basing its Columbia, Elgin U.S.App. v. District affidavits”).8 cision on (1964). D.C. outset, deter- Whether a function is At the the trial court must or minis question going subject is a the act is terial to the mat mine whether jurisdiction of function under the circumstances ter court. District ministerial McKethean, Inc., A.2d Neighbors, presented. Columbia v. North Wash. 3, supra “[cjharaeterizing 367 n. It an act as discretion- note A.2d at 148 7. is a While task,” ary always easy an judge, determination to made is not be trial or ministerial id, discretionary jury, generally not the and this a are defined court conducts de acts involving formulation of novo review of the trial court’s determination as those acts of or ministerial acts are defined as whether action discretion while id.; Co., policy. ary. e.g., Daigle relating See of See v. Shell Oil those the execution (10th id.; Columbia, 1527, 1537, Cir.1992). A.2d 310 1539 Wade v. of (D.C.1973) (en banc) However, (discretionary 857, any as is the case de novo 860 which, tort, review, accept if liable in must the trial court’s functions are those “we conflicting pose quality to the and effi- resolution of and will would threats findings long ciency government). Administrative not disturb the factual so as government they supported by require are which substantial evidence.” decisions 42, Alexander, competing consid- v. 428 A.2d 50 balance considerations are United States McKethean, (D.C.1981) discretionary (reviewing acts. 588 trial court’s resolution ered any Strictly they plainly wrong speaking, are or without evidentia- 6. the common law terms dis- foundation”). ry by municipality tinguishing were actions which liability immune from from those actions which also, Tucker, 443, not, "governmental” “proprie- v. 404 U.S. were 8.See United States 589, 591, however, 446, (1972) time, 30 tary,” respectively. the ter- 92 S.Ct. L.Ed.2d 592 Over ("A inquiry judge may appropriately minology "discretionary” conduct an ver- has evolved to the opin- scope, largely as to the broad unlimited either used in this sus "ministerial” formulation evolution, consider, may thorough kind of information he of this ion. For a discussion come.") (citations 118-19, may from which it Elgin, supra, U.S.App.D.C. at source 119 see Columbia, omitted); 139 Hecht Co. v. District F.2d at 337 154-55. 857, (D.C.1958)(trial judge properly A.2d 859-60 13, States, also, first trial was not A.2d considered record of United 631 See v. 7. Jefferson (D.C.1993) formally at introduced into evidence the second (reviewing that de determination 17 reaching a decision the merits of a proof prima facie trial burden fendant satisfied case); 800, trial); States, cross-claim in second Collins v. United A.2d 814 v. 633 Patton United States, 48, ("It (D.C.1993) (D.C.1993) appel a well- 50 (reviewing determination may Prophet principle law trial that a court custody); established nor in was neither seized lant (D.C. States, range a wide of information in fashion- consider A.2d 1091-92 United 602 determination); [including] ing appropriate 1992) an (reviewing sentence probable cause C., evidence ... that was not introduced at Boy 683 reliable trial”) Baby A.2d re see also In (citations omitted); States, denied,-U.S.-, West v. United (D.C.1993), 115 S.Ct. cert. (D.C.1992) (in (under resolving A.2d D.C.Code L.Ed.2d give suppress, 17-305(a) evidence introduced at trial Appeals motion "must § the Court pre-trial well as evidence introduced find as factual great the trial court’s deference to considered). hearing may appears ings them aside unless not set By barring A.2d at suit for such ac- It was clear to the trial court that tions, judicial signal type traffic of function Congress “prevent[s] intervals “is the “second- discretionary function rule is de- guessing” legislative and administrative signed further social, to shield.” The grounded decisions economic and signal observed that intervals: political policy through the medium of safety only Varig action in tort.” involves considerations of United States v. Air- lines, travellers, pedestrians but for and it 104 S.Ct. (1984). safety balancing involves a needs L.Ed.2d 660

against adequate traffic the need to assure flow, which itself involves considerations of given gov To determine whether a safety as and conve- as well commerce ernmental action is or ministe Balancing factors also re- rial, nience. these we first determine whether it kind facts, quires the ascertainment of such as action “that the function ex pedestrians, numbers of vehicles and shield;” ception is, designed ways pedestrians in which drivers and be- permissible whether the action involves “the aggregate, peculiarly have in the which are policy judgment.” exercise of Berkovitz v. subject study expertise. Subjecting States, 531, 536-7, United 486 U.S. engineers litiga- the decisions of traffic (1988) (cita 1954, 1958-59, 100 L.Ed.2d 531 by jurors second-guessing tion and to omitted); McKethean, tion A.2d at government. deter would effective inquiry yes, If the answer to this first then suit, hold, fully agree, the action is immune from unless the for the We and therefore “statute, court, government adopted regula upon by has relied the trial reasons signal specifically prescribes tion or intervals involves balanc- [that] economic, political employee course of action for an to follow.” various and social con- Berkovitz, 1958; siderations and is therefore 486 U.S. 108 S.Ct. at McKethean, example, accom- function.9 For the need to spe 588 A.2d at 715. If such a pedestrians paramount modate be cific directive exists which the oth removes intersections, only secondary of some but govern erwise unfettered discretion of the Thus, in- importance at other intersections. ministerial, employee, ment the action is high might pedestrian tersections with traffic opening government per the to suit if not call for than those different considerations correctly. formed

appropriate at intersections where there is pedestrian little or no traffic but the interest Aguehounde contends that the expeditiously moving pre- vehicular traffic finding setting court erred that the of the clearly dominates. These determinations are clearance intervals was a act judgment involving application the calls the not involve because decision did knowledge well as a considerations as making type it considerations the of action of the traffic flow needs of the area where by immunity. He intended be shielded intersection is located. The that, setting if further contends even timing calling for an interval is therefore one act, timing the District is exercise of discretion. adopted not immune because the District had maintains, nonetheless, specific employees formula which its Aguehounde setting light fairly in required timing light to follow in traffic intervals “cannot decision,” tervals, removing any design thereby [traffic] element of characterized as engineers may have had. and is thus not immune from suit under the choice the traffic ("The Pace, general of ... a traffic con- 9. See District Columbia v. 498 A.2d establishment ("street (D.C.1985) squarely plan essentially legislative design trol is in character and falls the ... exercise of discretion and definition” of discre is the result of th[e] within the ambit function, Neighbors, general principle judgment”); 367 A.2d at tionary North Wash. and “the ("the designing of and the con- design immunity in the Dis 148 n. 7 streets has been established omitted); (citation century”) [are] trol of the flow of traffic over them discre- trict close to a Columbia, McKethean, ("overall U.S.App.D.C. tionary”); A.2d at 715 Urow v. District of (1963) denied, discretionary poli- safety design [is] traffic cert. decision.”). cy 11 L.Ed.2d 59 U.S. timing interval has on the overall Essentially, Ague- of one cited above. authorities design pattern of the inter traffic the District. hounde contends already through timing light been established and control section had one affects regarding the width its intersec- decisions entire street and traffic on the cars, streets, speed permitted tions, impact city-wide traf- and can thus lights. Consequent of traffic timing installation regarding the fic The decision flow. yellow light ly, argues, timing of the is he integral part of overall is thus an pre-existing merely implementation singled cannot be flow traffic decisions discretionary. This ar design and thus not subject traffic aspect To one of overall out.10 gument misapprehends law in established judicial im- design second-guessing would example, in jurisdiction. For McKethe- autonomy in permissibly impact the District’s that “the to relocate a an we held Therefore, regulating traffic flow. stop bus is traffic and overall squarely that traffic authorities have held our McKethean, at 715 safety design,” 588 A.2d design function and added), (emphasis and in we deter Urow design aspects of such are also the various control placement that “the of traffic mined in- discretionary, we hold that aspect design.” devices one of street [is] discretionary. is likewise See Dis- tervals Urow, Pace, supra, (citing 498 A.2d at 229 Pace, 229; A.2d at Columbia v. trict of 9, 114 supra U.SApp.D.C. F.2d note 715; McKethean, A.2d at North Wash. added). 351) (emphasis Neighbors, at 148 n. 367 A.2d any support do we find for our dis- Nor contends that also colleague’s govern- senting assertion that purely engineer- “involved interval decision liability only ment conduct insulated from professional requiring ex- ing calculations” “actually where official exercised discre- considerations, any policy pertise, but tion.” dissent concedes that there is no than a making thus it a ministerial rather dispositive precedent supporting premised discretionary act. This claim is view, fact, and in to the extent has been that, immunity, proposition establish addressed, contrary is true. For exam- government produce must evidence McKethean, ple, supra, “social, political or economic considerations approval cited observation in- of the clearance entered into the Supreme Court that “where there Ague- at Wisconsin and Fessenden.” terval decision, policy judgment there room for argues that “both common hounde further States, is Dalehite v. United 346 discretion.” testimony ... dictate that expert sense 956, 968, 73 97 L.Ed. 1427 S.Ct. made to have once a decision is (1953). Consequently, an act is deemed dis- long must be set interval ... the interval cretionary policy where it is shown to involve the intersec- traffic to clear enough to allow decisions, require judgment but does not tion.” every myriad deci- proof that and intricate specif- process required in sion involved the argu- accept Aguehounde’s If were to balancing policy of ic decisions. ment, justi- required to would be the District myriad of policy underlying each conclude, fy the upon We for reasons relied design. case Urow, in traffic Our involved timing decisions McKethean and that the however, inqui- proper suggests, that the law simply one of traf- signal interval is element actually bal- concerns were ry is not: what design. timing of a traffic fic To view the Instead, we act? anced in each individual ignore the effect that light in a vacuum would 579, Fote, (same); 200 directly 7 N.Y.2d Weiss v. addressed which have 10. Jurisdictions 63, (1960) (same) 409, 65 setting light 167 N.E.2d of a N.Y.S.2d whether the traffic the issue of York, with, City 143 Misc.2d v. New Delosovic is a function clearance interval of 685, (N.Y.1989) (govern- 801, 688 ways, adopt 541 N.Y.S.2d gone view we both with the walking inadequate period for City Compare v. liable for being slight majority. Davis ment in a City Fraley Cleveland, 613, signals); v. (Tenn.App. walk” “walk” "don’t 709 S.W.2d of Flint, Mich.App. 221 N.W.2d 1986) is (timing sequence traffic timing improper act); (municipality liable for Bjorkquist City v. Rob interval). 1984) binsdale, (Minn.App. of traffic 352 N.W.2d O’Neill, should type ascertain whether the function placed. In held that a bus grounded analysis. in policy dealing disruptive driver’s inaction in See, e.g., Gaubert, United States v. passengers 499 U.S. was not because (1991). policy place L.Ed.2d 335 there was an established indi- (“Discretionary safety conduct is not confined to the cating the the driver rules policy O’Neill, planning level but on the nature follow such situations. they actions taken and on whether are at 839. We held WMATA susceptible analysis”); policy grounded Baum v. immune from alleged suit States, (4th United F.2d negligence 720-21 in carrying spe- of the driver out Cir.1993) (court should examine “de- correctly whether cific directives. Id. cision is one expect which we would holding inherent- reasons means that ly grounded to be policy” liability considerations would not be shielded from and not conduct a inquiry negligence employee “fact-based into for the of an who fails surrounding govern- circumstances policy. to follow a set ment actor’s exercise of a discre- O’Neill, however, Appellant misreads when function”). tionary Appellant’s suggested he contends that it proposition stands approach isolating each component of a policy that there must be evidence consid- simply required. decision is Smith See v. decision-making employee’s erations (3d Corp., Johns-Manville immunity before attaches. O’Neill does Cir.1986) (“The position agency deci- than more hold that the District would sions can component be broken down into where an employee liable fails to follow parts fundamentally at odds with the policy, established because the existence of Dalehite.”). teaching Court’s as the Just policy set means all discretion has been re- length yellow part intervals is over- employee, from the employ- moved and the all design, part traffic it is of the overall ee’s actions thus be would ministerial. policy determining traffic flow in the Dis- hold, suggest, O’Neill does not nor Daigle, supra, trict. See at 1542 F.2d government prove specific policy must (“[a] component decision is a of an over- aspect considerations given behind each of a protected all the discre- Consequently, action. O’Neill does not ad- tionary exception function protected also is Aguehounde’s that, vance contention exception”).11 traffic engineer- intervals involve support gov- professional of his contention requiring calculations exper- tise, ernment must establish that required prove considerations, intervals ap- policy involved considerations behind deci- O’Neill, pellant on WMATA relies 633 sions to establish that the action is discre- (D.C.1993). A.2d 834 tionary.12 That is mis- reliance that, 11. The trial court recognized design, in the federal overall traffic is a discretion courts, ary general plaintiff function. the rule is that the bears demonstrating subject the burden of that matter Aguehounde urges this also court to follow the exists, jurisdiction Georgiades Martin-Trigona, v. Appeals of the United States Court of 4, 831, U.S.App.D.C. 234 n. 345 833 n. Scott, Cope the District of Columbia Circuit in v. (1984), although 4 Act, under the Federal Tort Claims 144, (1995), U.S.App.D.C. 310 F.3d 445 which government courts have held that the has "any by government held the discretion exercised proving the burden of its actions fall within the respect post signs to how where and to discretionary exception. function See Prescott v. warning dangerous road conditions not dfoes] States, Cir.). (9th United F.2d 701-02 social, implicate ‘political, policy or economic' however, that, agree We with the court in Congress of the choices sort that intended to case, unnecessary it is to whether determine protect [by immunity].” granting court proof prove the lies with burden of the District to Copedetermined that the while decision where policy the existence of the tim considerations in place "slippery signs when wet” involves some decision, Aguehounde or on to show analysis, policy type it is not of function excepted general decision is from the rule of "grounded policy regulatory in the of the re- function, immunity by proving it is a ministerial gime" and is thus a ministerial not discre- concluded, because, court tionary as the trial it was Cope pro- at function. Id. 45 F.3d intervals, clearly setting yellow support established that a no authoritative vides minis- Specific implementation employees Adopt Di- render B. Did the District a Mandating Setting rective terial. of Traf- Intervals'.? fic chart re- Aguehounde contends that setting in Finding yellow policy of a all exercise moved room is a function does not tervals by mandating particular formula judgment a inquiry. end our We now must determine engineers must use set that the any specific

whether there were directives support In of this at intervals intersections. withdrawing option from employees Aguehounde relies on the Dis- argument, choice, exercising which would transform the Interrogatory No. trict’s answer timing of the interval from a discre “required” in title of the chart the word McKethean, tionary a task. to ministerial adopted had a that “the District as evidence Berkovitz, 715; supra, 588 A.2d at 486 U.S. Al- following the national formula.” policy of (“the at 108 S.Ct. at 1958 if ternatively, argues that even appellant exception apply will not when fed function prove the District had did not evidence statute, regulation, policy specifically eral or formula, timing in- adopted national employee prescribes a course action for so proved that it did at terrogatory answers follow”). In the instant case statute question and mis-mea- the intersection regulation prescribing what clearance exists width, indisputably “an which was sured the Design Signal Branch evi- conclude that ministerial act.” We Department Trans District of Columbia not establish dence considered as whole did portation must for the intersection. The set mandatory for set- of a the existence only possible “directive” is the chart labelled ting which would transform traffic intervals “Required Yellow Interval Seconds” into a ministerial one. We also the function (“chart”), and therefore determine we must mis-measurement, if there conclude “specific chart constitutes a whether one, irrelevant was therefore mandatory employees to directive” for follow analysis. the interval which would Street, Columbia, holding N.W. Please state Avenue and Calvert in Urow v. District decided of the same U.S. Court of specific such time Appeals in formula used to establish us, binding Ryan, which on see M.A.P. v. intervals. relevant, (D.C.1971), A.2d 310 and to the extent L) = (W T + + + ANSWER: Y 1/2V Cope apparently on the court as well. See United A V Doe, U.S.App.D.C. n. States (decision previous panel F.2d 1531 n. interrogatory answer not introduced This court, only by may be overruled en banc therefore claims that at trial and the District panel). that the another The Urow court held rely sup- its contents cannot general plan is establishment of a traffic control required use port his contention discretion, immune the result of an exercise deciding of this formula. liability, the decision whether to from and that issue, expressed doubt the trial function provide at a traffic control device rely properly plaintiff on mat- that "the overall decision. intersection is posi- support record to his ters outside the trial Therefore, liability the District was immune from text, Nonetheless, as we discussed tion.” flowing its control from failure to locate judge may properly supra consider the trial concededly very dangerous device what making jury in evidence not heard Consequently, we intersection. conclude Matthews, jurisdictional facts. determination Urow, Cope, analysis relating to controls our Therefore, the trial at 1179. timing of the interval of a traffic control can correctly used,” that the evidence "assum[ed] Cope, was decided The court device. Interrogato- the answer considered Act, made no the Federal Tort Claims under finding specific making ry its that no No. reference to Urow. setting intervals. existed for directive Moreover, Aguehounde question whether the Interrogatory question and the District’s 13. No. 1 support rely Interrogatory his No. 1 can on are as follows: answer essentially we con- because moot contention clude, judge, that fact that the the as did the trial specify what criteria was used 1. Please particularly responsible employee used a District the yellow time and red- determine the (i.e.: Interrogatory 4-23-91, No. (all red) that contained formula interval time effect on red 1) required that its not establish by does traffic control all intersections controlled employees use that formula. between Western on Wisconsin Avenue devices amply proved point” th[e] Our review the evidence confirms the chart’s title that findings trial judge’s required that there was no the chart The evi- was directive. specific mandating contrary, directive that the as the trial District dence is to found, engineers more, follow the formula court without “the word re- contained point judge quired specific chart. trial not On the found ... does itself establish Signal Design there the evidence “that chart was directive that the Branch any change issued as memorandum or other the interval at Fessenden and Wis- ” writing directing engineers .... that use consin it.... any Nor is there evidence of oral Appellant’s argument alternative that In- Indeed, requiring communication its use.” terrogatory supra No. see note estab- testimony engineer the of the chief estab- mandatory policy setting lishes a the there lished that was no written re- signal rejected. must also be intervals quiring of the that an engineer use chart and interrogatory answer establish that does not he uses that formula “because feels that it is adopted mandatory the had District di- the he should The trial chart use.” most, rective to the formula. At the use engineer credited this assertion chief response engineer spe- used a shows an it, placed great upon noting reliance setting cific formula the interval at the engineer the fact that an uses the chart not question. intersection It does estab- obligation, out of but because he “feels he him required lish that District to do so. should,” sufficient, more, is not without Finally, Aguehounde contends that the en- establish that the District mandated its use. gineer’s width of mis-measurement of the trial judge Because we conclude that the for which intersection is ministerial act clearly crediting engi- erroneous in District be liable if asserted can mis- testimony, findings neer’s we defer his injury. can be to the measurement linked See, Alexander, e.g., supra, fact. 428 A.2d at Aguehounde claims the failed to in- District 50; C, Baby Boy supra, In re at clude both crosswalks its measurement which in a of 65 feet resulted calculation Moreover, testimony trial estab- trial, Ague- the width of the intersection. At lished there several different engineering expert, hounde’s traffic Sheldon engineers charts which the used to determine Pivnik, that the of the inter- testified width signal length intervals.14 trial section, “W”, in the clearance interval formu- fact, judge’s findings ample (see discussion, by supra la used District record, support in the confirms several 446-447), must be determined measur- engi- formulas were available for District ing stop beyond line from the crosswalk setting light from in neers to choose inter- at one of the intersection the corre- side vals, there directive and that was no sponding stop line at the other side of the engineer to requiring kind use the chart. “W”, Using intersection. that definition sum, supports In the evidence trial the width Wisconsin avenue is 106 feet. finding that there had been no show- court’s Aguehounde, argues Thus the clear- adopted District the formula that the had originally at 4.5 ance interval was set seconds mandatory as a the chart directive. intersection, at the Fessenden/Wiseonsin

Nonetheless, Aguehounde argues that District have mis-measured the width “the must feet, than very “required” language in since a value of 65 rather the] “W” [use Moreover, argues the trial trial court could en from the record. engineer may testimony specifically that while because it was struck noted not consider fact, competently during able to state what trial. as the District "not have been the court out, engineer’s judge only portion [previous] mind points the trial struck the was in the when he decision, competent specif- he to state engineer's out the made the Finally, previous engi- were in even if formulae other charts use.” ic charts or interval; "[wjhat evidence of charts was not admissable for neer had used in other court, jury, report as fact- was his what the other consideration was stricken about engi- discretionary/ministerial engineer done time.” The finder on the function had before this could, above, properly testimony regarding we said consider the existence and use issue as neer’s charts, however, was not it. of several other strick-

453 feet, followed, if it is If correct 106 would result in an interval that formula that of 4.5 ensure seconds. to the interval to intended set cleared, the pedestrian are crosswalks maintains, however, government from as used be measured width should using 65 feet as “W” the formula one the outer limits the crosswalk in an results interval of 4.9 seconds rather corresponding part to side of the street Therefore, 4.5 than seconds.15 it contends on the other side of crosswalk 4.5 second interval could not have result- which, case, just 105 over street faulty ed from the claimed mis-measurement. interval, according feet, clearance then the Furthermore, have, the District could in the 5.7 seconds. exhibit would be discretion, exercise its order mini- re- delays, judge, mize traffic set the who the witness’s interval The trial heard accom- concluded, as questions, pedestrians. sponses modate motorists rather than to counsel’s do, testimony That would be the result with a or a 4.0 even was “intended we used, mean, 4.5 second clearance interval. calculations the chart were if six seconds.” that the interval should be show Finally, respect with so-called mis- short, pre- although the numbers do not measurement, dissenting colleague our reads jibe, than cisely testimony no more does testimony Saraj Gyani, more into far confirm, Aguehounde’s by ex- the calculation engineer, District traffic than pert Clyde set forth note Richard as Judge did or we do. Schwelb asserts that point supra. Gyani’s on this does “effectively ... ... the witness admitted cause, however, Aguehounde’s not advance faulty it was measurement of the intersec- way the testimo- because it no contradicts tion, high-level rather than a choice between court, by for- ny, the trial credited policies, ... led to an erroneous interval_” by mula was mandated That assessment As have even at that intersection. used significantly overstates what the witness said, formula because use Gyani presented said. with an exhibit16 District, any apply- error mandated that reflected the results of calculation of it, one, not convert apparently if there was does timing, pursuant interval into “Required formula Yellow act a ministerial one. found supra chart at Interval Seconds” discussed negligence has rele 446; 451, for various clearance distances ex- an act was vance until it is established that pressed in feet. McKethean, supra, ministerial. 588 A.2d See 715; 837-38; O’Neill, supra, Gyani’s testimony, given in re- We think Interior, Dept. F.2d leading questions, can 949 sponse to a series Johnson (10th Cir.1991) (“[Fjactual issues fairly be follows: 340 summarized as Required explain government Clearance Distance Interval 15. The did not its calcula- resulting using (seconds) (feet) 4.9 interval tions in a second However, we set forth in "W" of 65 feet. supra, Aguehounde's calculations note expert 35 produce an interval of six seconds. 40 Aguehounde’s expert used If the same factors 45 "W” of 65 feet rather than were used 50 feet, of 2.1 106 the result would be 55 feet), seconds, (using 3.2 seconds 106 rather than 60 part formula. That in the third of the standard duration, 65 part to the 1 second for when added formula, 1.8 seconds for and the 70 one two, as in a duration of 4.9 seconds results total 75 the District claims. 80 appeared as follows: 16. This exhibit REQUIRED YELLOW INTERVAL MPH) (Approach Speed 25 Required Interval Clearance Distance (seconds) (feet) 3.6 concerning negligence are applicable irrelevant to the legal principles. begin I with threshold issue whether the officials’ actions issue which the trial found it unnec- liability by are shielded from the discretion- essary decide, namely, proper assign- (citation ary omitted). exception”) function proof. ment of the burden of Consequently, Aguehounde’s argument is, think, It I undisputed that the District the District mis-measured the width of the only party is the which had unrestricted ac- intersection does not assist us with the deter- cess to all of the information relevant to its mination of whether the clearance interval immunity. claim of What District’s em- was a or ministerial function. did, it, ployees why they If did and what factors we had first found that intervals ministerial, they considered, readily only are facts known then consideration of the alleged to the might probative mis-measurement District. has been “[I]t established as negligence of the employees general proof District’s rule that the burden of lies in performing Cope this ministerial act. person See on the support who wishes to his case Scott, 147, U.S.App.D.C. v. 45 F.3d at a fact peculiarly which lies within his (“If specific directive exists [t]he knowledge, supposed or of which he is to be only issue is employee whether the followed Selma, cognizant.” R D.R. & Co. v. United directive”) added). (emphasis Because States, 638, 640, 139 U.S. 11 S.Ct. we have determined that the intervals (1891) (citations omitted); 35 L.Ed. 266 see act, however, is a and because Productions, also ITSI TV Agricul- Inc. v. the District did not mandate the use of the (9th Cir.1993). 1289, tural Ass’n. 3 F.3d question, any formula in alleged mis-mea- rule, ordinary “The based on considerations immaterial, surement of the intersection is fairness, place upon does not the burden because the negli- District is not liable for litigant establishing peculiarly facts within gently performed discretionary acts. knowledge adversary.” of his Browzin v. sum, America, supports University because the record Catholic finding 60, 12, mandatory U.S.App.D.0. 843, District had no 66 n. 527 F.2d (1975) place determining signal (quoting inter- n. 12 v. United States New vals, find, properly the trial court Co., could as it 5, York N.H. & H.R. 355 U.S. 256 n. did, that the District used the formula in the 214-15 n. 2 L.Ed.2d 247 guide, chart making as a therefore its use a (1957)).1 discretionary function. Applying principle governmental to a No. 93-CV-1116 Affirmed. immunity, claim Supreme Court of No. 93-CV-1213 Dismissed as Moot. Michigan explained has

SCHWELB, Judge, dissenting: governmental agency Associate whether a was en- gaged governmental in a function when agree I am my colleagues unable to performing complained ques- the act of is a that the District’s actions in this unfortunate tion agency best known to the and best protected by case are the doctrine of sover- naturally asserted it. It follows that eign immunity. Accordingly, respectfully I plaintiffs plead need not facts avoidance dissent. immunity, but that it is incumbent on I. GENERAL LEGAL PRINCIPLES agency immunity to assert its as an affirmative defense. A. Burden of Proof. record, Center, discussing

Before McCummings Hurley evidence of I Medical my think it understanding useful to state (per Mich. 446 N.W.2d applicability 1. There are govern- obvious limits to the a decision was made within the District rule, ment, especially availability employees or the basis on which District pretrial discovery. modern See Edward W. made such a decision. Stewart v. United Cf. States, (7th Cir.1952), Evidence, § at 950 & n. Cleary, McCormick (1984). Nevertheless, concluded, appears II using strong to me unrea- which the court some present require Ague- language, altogether sonable in inappropri- context to that it would be prove place plaintiff. hounde to the circumstances under which ate to such a burden on the

455 curiam). plan, set at four seconds Supreme Jersey Court of the decision to it The New discretionary public necessarily protected a act. has held that burden is entity plead prove immunity. opinion, proposition, and its followed to my both to Lindedahl, 485, conclusion, v. 100 N.J. logical Kolitch its would insulate Dis- (construing Jersey liability negligent 189 New stat- un- trict from conduct ute). appellate The federal courts which discretionary der which the circumstances question have considered the have unani- designed to function doctrine was never mously concluded that when “discretion- reach. ary exception function” to the Federal Tort (later General) Judge Attorney Griffin As against as a a Claims Act is invoked defense in Bell the court Fowler v. South- wrote for facially complaint, sufficient United Co., Telephone Telegraph ern Bell & 343 proving States bears the burden of (5th Cir.1965), 150 “the defense of sov- F.2d particular governmental within action falls impinge- ereign privilege imposes drastic scope exception. of See Prescott v. liberty, recognized personal is ment on and (9th States, F.2d United 973 701-02 is only impingement considered Cir.1992) authorities). (citing govern- “If the justified encourage public order officials rely upon any provi- [the] ment desires to of fearlessly discharge the duties of their [exempting liability the ex- sions it from governmental every Id. 154. Not office.” function], discretionary has ercise of a exercise of dis- decision which involves some action, right provid- of to do so defense review, for “it cretion is insulated from would aptly prov- pleaded such defense is and act, be of official no difficult to conceive Stewart, supra en.” note 199 F.2d 520 ministerial, directly matter how that did not added).2 (emphasis in manner of admit of some discretion its selecting adopting general plan “In only performance, even if it involved improvement municipal of public cor Eugene McQuillin, driving of nail.” 18 discretion, poration judicial but in exercises Municipal CORPORATIONS, Law carrying plan ministerially, out the it acts (3d ed.1993) 53.04.10, (quoting § at 157 Ham perform reasonably and must the work in a Angeles, Cal.App. 46 P. v. Los 189 safe skillful manner.” District Co (1920)). 465 Caton, App.D.C. v. lumbia 48 104-05 (1918); Elgin see v. also Colum discretionary goal The function ex- bia, 116, 118-19, U.S.App.D.C. judicial ‘second-guess- ception “prevent is to (1964). dispositive question 154-55 ing’ legislative and administrative deci- proved by prepon social, whether the District politi- grounded economic and sions derance of the evidence that the acts and through medium of an action in cal complains Airlines, decisions Varig v. tort.” United States 2755, 2764-65, rather than 797, 814, ministerial. U.S. (1984). “The func- L.Ed.2d 660 Discretionary B. and Ministerial Func- only exception applies tion conduct tions. permissible involves the exercise States, v. majority judgments.” Berkovitz United has outlined some detail 1954, 1959, S.Ct. the distinction between (1988). Accordingly, when governmental I have L.Ed.2d ministerial functions. invoked, make “a exception I the court must much of its discussion. quarrel with however, fact-specific inquiry to de- particularized and agree, that because the de- cannot acts or omissions termine whether termination of the duration of on eco- question from a choice based was a flowed at Wisconsin Fessenden Prescott, supra, policy.” nomic or social part of the District’s overall traffic de facto Banks, Banks, immunity presented sovereign 646 A.2d 972 In District Columbia immunity (D.C.1994), "governmental claim of treatment of the District's this court held that our logi- analogous defense leads immunity affirmatively affirmative asserted in the as cally must the District must pleadings.” to the conclusion that Id. at 979 n. 9. Al- defendant's carry though proof as burden. burden inquiry designed jurisdiction F.2d at 700. That of the courts has been generally determine government not whether the em- consistent with the authorities choice, ployee long which I have cited. It has been estab has a but whether that choice (citations duty lished that the District has a ministerial policy judgment. is a Id. omit- ted). reasonably to maintain the in a safe streets travel, excep condition for and that this is an Moreover, persuasive authority there is for immunity. sovereign tion to the doctrine of proposition governmental conduct is Columbia, Wagshal v. District 216 A.2d liability only from insulated “where the offi- 172, (D.C.1966); 173 see also District Co employee actually cial or exercised some dis- (D.C.1985). Pace, 226, lumbia v. A.2d 230 498 53.04.10, supra, § cretion.” 18 McQuillin, court, Wagshal, citing this Urow v. Dis added). (emphasis at 157 Columbia, 350, U.S.App.D.C. trict 114 316 Immunity “discretionary” activities (1962) denied, curiam), (per F.2d 351 cert. purpose except serves no to assure that 826, 69, 375 84 11 59 S.Ct. L.Ed.2d pass judgment courts policy refuse to on (1963),recognized that the District’s determi province decisions of coordinate place nation whether or not to a traffic government. Accordingly, branches of particular at a intersection was immunity be entitled to the state must protected by sovereign immunity. Wag showing policy make a that such a deci- shal, however, held, 216 A.2d at 173. We sion, consciously balancing risks and ad- immunity plan “if that there can be no vantages, place. took The fact that an road, adopted that is creates a hazard on the employee normally engages in “discretion- either because of its inherent unreasonable if, ary activity” given is irrelevant in a negligence ness in its adminis case, employee did not render a consid- added). (emphasis tration.” Id. at 173-74 ered decision. recently, More fact “[t]he observed that State, 782, Cal.Rptr. Johnson v. 69 73 Cal.2d in particular [employee] might case an 240, (1968) 8, 352, n. 249 447 P.2d 361 n. 8 have alternative courses action from which added); (emphasis choose, supra, 18 might McQuillin, this choice involve § Although n. 53.04.10 at 160 7.3 some deci- degree judgment, certain does not elevate focus,4 proof sions reflect a different that an [employee’s] decision to the level of ‘basic ” O’Neill, 834, administrative decision was not based on eco- policy.’ WMATA v. (D.C.1993) surely pro- nomic (quoting or social considerations is Lopez v. Southern Transit, 780, bative on the whether the “discre- Rapid Cal.3d California tionary (1985)). exception applies, especially 907, function” Cal.Rptr. 710 P.2d where, case, inas of the Scott, Only ago, Cope a few months v. representatives, District’s own described in- 144, (1995), U.S.App.D.C. 45 F.3d 445 458-459, pp. demonstrates that fra Appeals unanimously United States Court weigh failure to such factors was the norm place “slip- held that the decision where to exception. rather than the pery signs when wet” in Rock Park Creek “grounded policy regu- dispositive

There is no District of Colum- was not precedent precise question pre- latory regime” implicate “politi- bia and did cal, social, us, approach I or economic sented to but believe choices of the second-guessing Supreme judicial 3. The decision of the Court of Califor- insulate from "decisions leading and the nia in Johnson views grounded policy." Varig and economic in social municipal corpora- commentator on the law of Airlines, supra, 467 U.S. at 104 S.Ct. at 2764 accurately tions cannot as "no characterized added). (emphasis person support.” Op. at 449. No reasonable Cf. truism, quarrel can majority, with the relied on Stone, See, e.g., Crumpton U.S.App.D.C. that "where there is room 412, --, ("we look decision, judgment and there is discretion.” Id. not to what the decision-maker in a States, (quoting at 449 Dalehite v. United thinking, type case was but to whether the U.S. (1953)). 97 L.Ed. 1427 being challenged implicates policy judg- however, decision ments”) (citation proposition, does not ne- This quotation and internal marks gate Supreme explanation Court’s that "dis- omitted). designed cretionary exception function” pedestrians [by ways in be- protect which drivers Congress sort that intended to at-, peculiarly aggregate, which are granting immunity.]” Id. 45 F.3d at have Subjecting subject study expertise. rejected government’s 452. The court engineers litiga- of traffic balancing safety con the decisions contention that the by jurors seeond-giiessing against appearance tion and siderations the aesthetic government. For effective represented protected dis would deter Beach Drive reasons, our courts My colleagues these and other cretionary contend function. like decided,5 respect to functions erroneously held that with Cope and that discretionary.[7] Urow, here, function is Cope, The 2:1 one controls. is, however, distinguishable in a in Urow analy- “fully My colleagues agree” with respect. infra, and See note decisive sis, I that the record bears but do not believe Moreover, although Cope preceding text. it out. us, binding ought pause on at least not to Record. A. The State reject very of our of before we recent decision colleagues appellate federal across the street important to note at the outset I think it contemporary sovereign of place and law ques- dealing here with the that we are not immunity in in un the District of Columbia at signal a traffic tion whether to install Barry, necessary disarray. See Hornstein v. Avenue and Fes- intersection of Wisconsin (en (D.C.1989) 530, n. 560 536-37 15 A.2d Urow, supra. The deci- Street. senden Cf. banc).6 place signal at that location had to sion many years before. The determi- been made THE II. SETTING CLEARANCE engineers by which is nation the District’s INTERVAL —A DISCRETIONARY solely the challenged appeal concerns on FUNCTION? interval;” of “clearance length seconds i.e., should time vehicular traffic how much that judge found it to be “clear” pe- intersection before given to clear the type of signal traffic intervals “is the given green are destrians and drivers rale function that the function to cross the street. so, according to designed shield.” This is judge, of to the sup- According Aguehounde, there is judge’s asser- safety only record for the trial port involves considerations of travellers, question required the that this narrow pedestrians but for and tion pedestrian balancing safety engineers to balance of needs District’s involves commerce, flow, against or con- adequate safety traffic against the traffic need assure venience, flow, in their calculus the of or to include which itself involves considerations by enumerated considerations safety as as commerce and conve- various other well opin- his judge passage from Balancing facts also re- the trial these nience. facts, quoted. The District does I have quires the such as ion which ascertainment reading really challenge Aguehounde’s pedestrians, and of vehicles and numbers (one 2, 1529, (1984) 1531 n. 2 points Cope n. F.2d majority was 101 730 5. The also out Appeals panel Claims Act. This lacks the decided under the Federal Tort of United States Court adopt pan- previous "the distinction be authority court's decision to of a overrule decision banc, el; court, and ministerial decisions sitting tween only en do the full [, however,] distinc influenced similar so). Co District Inc., [FTCA].” tions drawn under A.2d Neighbors, 367 v. North Wash. lumbia Urow,supra, U.S.App.D.C. 114 judge 7.The cited denied, 143, (D.C.1976), n. 7 cert. 434 148 352, 353; Neighbors, Wash. F.2d North (1977); also S.Ct. 54 L.Ed.2d 80 see 7; Inc., supra, n. at 148 Spencer Hospital v. General 229; Pace, supra, 498 A.2d at Columbia v. Columbia, U.S.App.D.C. F.2d (D.C. WMATA, A.2d McKethean v. (en banc). Accordingly, I do not 1991) involving like the one here.” as "functions distinguished Cope persuasively can be think that note I address these decisions infra. ground. on that other decisions from judge relied three also signal involving jurisdictions specifically traffic Cope Oddly, Urow. the court in did not mention Doe, cases in note U.S.App.D.C. I discuss these intervals. States v. United infra. Cf. record,8 my judge, own search has revealed ations enumerated the trial such as nothing suggest safety is mis- “balancing against the need needs Indeed, testimony taken. Ague- flow,” adequate to assure and it is reveals, expert hounde’s witness and the Dis- readily testimony apparent from his “Required trict’s Yellow Interval in Seconds” formula, these factors are not a confirms, chart9 length of the clear- they play and that therefore no role in this ance supposed interval is set —and is to be testimony Clyde decision. The set —on three-part the basis of a formula Richard, expert, an accident reconstruction which does not include the factors which essentially identical to that of Mr. Pivnik referred. respect to the manner which the formula is calculated.

Moreover, of the District’s social, own witnesses reflects that economic Ghaman, Raj engi- the District’s traffic political probably factors not con- neering expert, testified that “there are vari- sidered at all when the decision in suggest ous tests that and are commanded instances, according made. most signal clearances —be be- clearances — expert, the District’s a four-second interval is tween three and six seconds.” He stated automatically selected almost as suitable “[aljmost included, everybody, I Finally, engineer intersection. a traffic magic have used about four seconds as a principal who was the witness for the District just every number that works at inter- about effectively testimony admitted in I which section.” Ghaman did not contradict the tes- quote infra, particular note that on this timony Pivnik and Richard as to the fac- occasion, faulty awas measurement of the go which tors into the “clearance interval” intersection, high-level rather than a choice Moreover, testimony calculus. his indicates policies, proved between that led to what to that, weighing competing policy far from con- an long erroneous decision as to how applicable siderations at the inter- clearance interval should be. section, engineers District Columbia rou- witnesses, expert two called tinely set the interval at four seconds at Pivnik, engineer, Clyde Richard a traffic virtually all intersections. Richard, expert on accident reconstruc- Saraj Gyani, tion. Pivnik that engineer testified the correct clear- a traffic who witness, ance interval principal primari- determined formula District’s testified time,” “perception statute, ly any regu- based on the reaction that he was unaware of “accepted policy required deceleration rate for a controlled lation or a six-second stop,” and light. comfortable the “time it would interval at the Fessenden traffic He expressed take a car to opinion clear intersection.” The also that four seconds not, however, obviously depends third of Gyani these factors on was a safe interval. did presented by Ague- the width of the intersection. Pivnik be- contradict the evidence lieved that engineers this formula —which the District hounde as to the factors applied “Required in its Yellow Interval in consider in the clearance interval. juris- Indeed, “every testimony suggest Seconds” chart —was in use in his does not of, any given diction ... that I know that I’m familiar the clearance interval is set at with,” intersection, accepted that it had been an for- or was set at four seconds case, thirty years. mula for at least Pivnik did on the basis of a choice between include in the calculus other eonsider- alternatives.10 Op. 8.The District claims in its brief that a decision 9. See at 446. respect partic- to the clearance interval at a ular intersection record, Specifically, Gyani as I read the ac- simply does not affect that intersection. It knowledged calculating the width of affects the flow of traffic on the entire street and purpose identifying intersection for the "the hence, larger system-wide affects the traf- time it would take a car tion,” clear the intersec- to structure, clearly fic control which is entitled wrong the District measured distance. discretionary immunity. to interrogatory, In its answer to an the District had revealing that It is the District has no citation to represented that the width of the intersection following this the record assertion. reasonably intelligent people in expert by all judges, I no on traffic Like most am may judicially community,” notice perhaps courts engineering. appear There proof. Poulnot judge’s requiring formal be some intuitive merit fact without Columbia, 134, 141 engineers or A.2d assessment of what factors do (citation omitted). (D.C.1992) Any determining should consider the duration connec- tion, however, But if factors of the clearance interval. the duration of between them, are judge, or and Fessen- enumerated at Wisconsin clearance interval calculus, traffic, prescribed or actual there and and the flow of both den ample opportunity intersections, sufficiently had to adduce well- is not other proving this to be the case. evidence take permit a court to known or obvious so, however, altogether do District failed judicial it. notice of presented and instead Law. Interval” Case B. “Clearance arbitrarily at four

interval was either fixed (according matter seconds as a of routine record, the cases the state of Given Ghaman) selected, case, in this as a result are jurisdiction relied on which (according Gyani).11 measuring error them, readily In each of distinguishable. differ- governmental I do think the trial court or this court from, traditionally discretion- properly District’s and more can come rescue ent than, setting of inter- especially given ary the “clearance proof, of this failure cases, Moreover, I these none I as the destruction of val.” as read what view effective in which the them involved situation the District’s “choice between alterna- “policy” discretion theory by its showed that tives” own witnesses. We evidence in fact.12 recognized that a fact is well known was exercised “where curb, any qualification. qualification No was nec- curb to a distance of 65 feet. out taken however, although Gyani, essary, Gyani follows: the for- testified as testified that mandated, was use Backing up Q. was this chart in one meas- mula not second terms of intersection, uring testimony at time when we know the at the of his and the the both time hour, speed way you 25 miles an the were is to the clearance interval was the decision as supposed of to measure the width the intersec- made. April tion set the clearance interval as of note that the indented lines The reader should wrong the me if I’m from 1990—correct majority beginning pp. opinion, of the —was on crosswalk, side, stop bar one across the first followed,” are not a words "If that formula is the intersection, of and then across the middle the Rather, they testimony. quotation Gyani's from side; across the other am I the crosswalk on Gyani majority's conception of what reflect the right? Gyani gave testimony which meant. actual right. A. You are quoted footnote. in this And, you Q. the for that ... reason the of the need to measure width intersection engineers making been a the had 11. If Districts cars, enough in order to have time the safety pedestrian "policy” as between middle, just box also to to clear the in the but traffic, maintaining as Dis- the flow the and of pedestrians clear the crosswalks where suggests, interval could then clearance trict be; might correct? according at traffic volume been varied have A. Correct. improve day in order to traffic times of different here, And, Q. 105 feet ... this measurement fact, done, however. In flow. This was inches, stop is an accurate measurement of propor- Aguehounde's that the evidence showed on far side the far crosswalk bar to the of green red time for Fessenden Street tion of Fessenden; correct? Wisconsin differently for Avenue was set and Wisconsin it, but, yes, sounds A. I haven't measured times, Peak," Peak,” and "P.M. Peak” "A.M. “Off reasonable. yellow light re- Fessenden Street but So, you Q. what have had on ... should throughout the at four seconds constant mained day. April is a clearance intersection as of off, 5.7, least or six interval of at rounded seconds; correct? court, Urow, dissenting, with one 12. In A. Should have. whether to install a traffic that the decision held The District contends that applicable discretionary stat- light where the assumption for- based on the unverified provide that the commissioners ute authorized supposed mula the District’s chart are "as deemed ad- traffic control devices colleagues majority apparent- such applied. My 351-52, reveals, U.S.App.D.C. at transcript ly agree. Op. visable.” at See Inc., Neighbors, a however, North Wash. Gyani at 352-53. In with- made his concession out, my colleagues pointed “juris- readily distinguishable, unper- position As have are or directly dictions which have addressed the dissents, compared suasive when setting issue whether the of a traffic rejecting both.13 The eases the “discretion- clearance interval is a defense, hand, ary function” on the other gone ways.” Op. function have both at well-considered, appear to me to constitute however, my judgment, n. 9. In deci- non-binding, precedents.14 albeit support sions which are said to the District’s Robbinsdale, involving question Bjorkquist City case whether homeowners In held, repairing (Minn.App.1984), in the District must bear the cost N.W.2d 817 court Weiss, pipes, sovereign immunity relying supra, timing certain of a parties, signal discretionary duty was not raised is a "[tjhere obligation lights simply designing to time the commented that “the streets way,” and the and because "that decision is control of the flow of traffic over them weighing competing arrived at after interests.” [are] nature.” 367 A.2d at 148 case, Pace, present Id. In on the other supra, planning at 819. n. 7. In we held that hand, testimony Aguehounde's expert wit- highways setting priorities and the for their nesses, wit- which was bolstered the District’s improvement "policy determinations” nesses, weigh- indicated that there was no such balancing “callfed] for a delicate of com- considerations,” here. peting and were thus discretion- Cleveland, City In Davis v. 709 S.W.2d 613 ary. 498 A.2d at 228-29. In McKethean v. held, 2:1, (Tenn.App.1986), WMATA, a divided court (D.C.1991), 588 A.2d 708 we concluded original yellow that "the caution stop, that the failure to relocate a bus like other any interval and failure to reset such aspects "design planning aof trans- sequences represented [discre- in this instance system,” portation "quasi-legis- id. at was a Judge tionary] judgment call.” Id. at 615. lative decision which [is] which, my scholarly Franks wrote a dissent second-guessed by nature and should not be view, persuasive majority opin- is more than the McKethean, jury,” recognized Id. The court noting array 'opera- ion. After that “a wide however, only "policy decision” is discre- public employees tional' acts or decisions of tionary, implementing poli- and that a decision 'non-discretionaiy’ been held and therefore not cy is ministerial. Id. 616, (citations exempt liability,” from tort id. at place signal Once a decision to a traffic at an omitted), Judge Franks wrote as follows: made, intersection has been of a appellant’s expert The affidavit of witness ad- reasonably be viewed interval could as opinion that the 3.6 second interval vances implementation standards, ministerial of that decision. In particu- was deficient under current view, my altogether prove the District failed larly ap- of the traffic volume and that the clearance decision was not ministerial. speed proach intersection. The witness event, none which the trial proper yellow cases on time ... would "[t]he concluded judge question. relied decided that have allowed the Jackson truck to clear the intersection before Mr. Davis was shown a Thus, Fote, leading green signal.” disputed a issue of mate- 13. The such case is Weiss v. city county, rial fact as to whether the or N.Y.2d 200 N.Y.S.2d 167 N.E.2d 63 Weiss, (1960). through employees, negligently Ap- its acted in set- the New York Court of In 4:3, ting light setting the caution interval under these con- peals, by a vote of held that the of a ditions established. a four-second interval at intersection Id. at 617. Safety by City the of Buffalo’s Board of the relied on exten- Board York, City 14. In Delosovic v. New 143 Misc.2d nothing sive studies and because "there is to (Supreme County Ct.N.Y. 541 N.Y.S.2d 685 arbitrary suggest that its decision was either or decision, 1989), judge the a trial court addressed 413, 167 unreasonable.” Id. 200 N.Y.S.2d at quite a situation which was the common sense of case, present N.E.2d at 66. In the hand, on the other principle present similar in to the one: Richard Pivnik testified that the Notwithstanding light was unreasonable be- the fact that no case has been the at four seconds discussing governmental liability pedestrians relat- like to found cause it invited intersection, ing signals, al- to "Walk”—"Don’t Walk” walk into the favor, his though signals had such do not exist at all intersec- before the vehicular traffic cleared. Moreover, compel- lights, Judge there are traffic I find that Chief Desmond wrote a tions where duty signals ling rejected are installed there is a to in Weiss. He the notion that once these dissent they proper pedestrians perform timing single to see that in a of a could be "the appro- high-level policy pedestrians manner to when it is considered the kind of inform courts,” governmen- priate proceed, and there and he com- not reviewable person injured by "[b]y taking liability a vehicle if plained we are tal that this decision old, timing inadequate long surprising step that there is an backward into the is such signal period provided governmental immunity.” at time the "Walk” area of Id. abandoned average person, proceeding appears at an at 167 N.E.2d at 68. for 200 N.Y.S.2d to walk across the street ture authorization Other Considerations. C. readily would danger created a which not be noting Superior It also worth that two is testimony If apparent pedestrian.15 to a ruled, stages judges earlier of this Court at credited, employees the District is then litigation, that inadvertently) lured effectively (though than interval was ministerial rather discre- measuring Aguehounde into the accident tionary denying nature. District’s wrong distance. summary judgment, Judge for Col- motion Kollar-Kotelly held: leen measuring such I do not believe plaintiff claims [T]he governmental action error is the kind of using own [its] failed “execute” sovereign immunity can principles measuring the improperly a set formula fairly apply. This is not a situa- be held to width of road. Since District does jury being tion in which the asked immunity for ministerial acts such second-guess an authentic measuring as and calculations af- distances policy alternatives. If choice between determined, already ter a presented the District had immunity to this [as] District cannot claim weighed effect he decision-maker to the negligence. basis considerations, economic, or social political, expert testimony if it show- or had adduced trial, Subsequently, Judge Burgess denied of a clearance interval the District’s for a directed motion verdict intersections, pe- affects traffic at other of Aguehounde’s the conclusion case because safety or been destrian should have figure was “the too small” for width of traffic, weighed movement against the intersection, resulting in a clearance time recognized that other factors Burgess Judge that was too later short. considered, been were or should have himself, however, granted reversed ease. In the case would have a different judgment motion n.o.v. District’s have, however, reject I which we vote to do III. CONCLUSION “discretionary function” defense.16 Ague- Richard Pivnik testified on behalf of by incorrectly measuring

hounde that

intersection, by setting the clearance

internal on the of the erroneous mea- basis

surement, engineers the District’s made the green

light turn the cars had cleared before prema-

the intersection. He stated that this Aguehounde was speed, complete crossing whether reach rate before proceed. contributorily negligent wonder, however, vehicular authorized to I traffic is as matter of law. added). (Emphasis judgment ap- Id. 541 N.Y.S.2d at I whether n.o.v. is odd, however, when, find it did not do cite or consider propriate if the evidence viewed highest decision of his state's alleged Aguehounde, most favorable to Fote, supra. in Weiss v. court by the contributory negligence was itself induced Flint, Fraley City Mich.App. defendant. (1974), reject- squarely N.W.2d 394 the court city's municipality that, "a can- ed the contention that opinion on this 16. Because I am of the not, law, held liable record, as a matter of be in tort for was a alleged improper timing a traffic one, control the signal.” I ministerial rather than act not- Id. N.W.2d at 397. whether, assuming would reach District's) (like Michigan imposes ed that law one, was that such a decision is agency duty upon government maintain specific the existence of rendered ministerial care, design highways reasonable left no room an official directive which interval, negligent setting even Berkovitz,supra, judgment. See exercise a range by Michigan within the recommended My col- 1964. however, Devices, Control Manual of Uniform Traffic question, I leagues do reach liability. Id. N.W.2d at not shielded from re- express some reservations feel constrained 397. disposition garding of it. their support Although plainly rec- in the my dispose there colleagues of this case on Because 15. finding that the immunity, judge's formula grounds sovereign I ord for the do not D.H., Appellant. In re

No. 91-FS-1073. Appeals. Columbia Court

Argued May Sept.

Decided strong only chart “Required in Seconds” dence when is available can lead Yellow Interval mandated, strong it is to me that the the conclusion that would have been not at all clear the Circuit, States, properly reached if diverse.” Interstate Inc. v. United result would same Gya- assigned proof. 83 L.Ed. the burden 306 U.S. S.Ct. District accord, McCloud, that, (1939); although Murphy there was no written ni testified chart, (D.C.1994). person Although do not requiring use of the A.2d why testify, interval uses chart know Moore did not the weakness of the clearance who sets present chart he leads feels is the should the evidence which did he District "because speaks question fairly “required" for itself. me to viewed as word whether it can use.” Moreover, Moore, engineer having proof "specific who set Mr. met its burden of on the (and who is not otherwise directive" issue. I to remand would be inclined record) was not called on that trial court directions to the identified testify. production apply proof. weak evi- the correct “The burden of

Case Details

Case Name: Aguehounde v. District of Columbia

Court Name: District of Columbia Court of Appeals

Date Published: Sep 25, 1995

Citation: 666 A.2d 443

Docket Number: 93-CV-1116, 93-CV-1213

Court Abbreviation: D.C.