¶ 1. This appeal requires us to determine whether the discretionary function exception to the Vermont Tort Claims Act applies to immunize the State of Vermont from a negligence action arising out of an incident in which a vehicle left the roadway, flipped over a guardrail, rolled down an embankment, and landed in a brook, resulting in several drowning deaths. The State contends the decision whether to remove or guard against the drowning hazard involved policy considerations of the kind the discretionary function exception was designed to shield from suit. We agree, and therefore reverse the trial court judgment denying the State’s motion for summary judgment.
¶ 2. The tragic events underlying this appeal may be briefly summarized. 2 Additional material facts will be adduced in the discussion that follows. Early on the morning of March 2,1998, Gregory Twofoot was driving south on Interstate 91. Twofoot had been drinking prior to operating the vehicle. Robin LaFont, one of five passengers in the vehicle, asked Twofoot to pull over to the side of the Interstate so that he could look in the trunk for beer. When Twofoot refused, LaFont reached forward from the back seat and pulled the wheel to the right, causing Twofoot to lose control. Twofoot applied the brakes and the car skidded over two hundred feet, spun around, and struck the butt end of a guardrail at its northernmost point. The car then careened along the top of the guardrail an additional thirty feet with its two rear wheels over the guardrail and the front two tires dragging along the ground behind it. One of the rear wheels then ripped off and the car became airborne and rolled to the bottom of an embankment where it landed upside down in Cobb Brook, in four feet of water, about 90 feet from the edge of the traveled roadway and some 500 feet from where Twofoot first lost control. Four of the passengers drowned in the water. The driver and one passenger survived.
¶ 3. The
estate of Nicholas Gage (hereafter plaintiff), one of the four passengers who died, brought this lawsuit against the State, claiming that it was negligent in failing to extend the guardrail further north, which allegedly would have prevented the vehicle from reaching the water, or in failing to remove a series of beaver
¶ 4. The controlling law is well settled. Lawsuits against the State are barred unless the State waives its sovereign immunity.
Denis Bail Bonds, Inc. v. State,
¶ 5. In
Searles,
we adopted the two-part test utilized by the United States Supreme Court for determining the applicability of the nearly-identical discretionary function exception in the Federal Tort Claims Act.
Id.
at 563-64,
¶ 6. In support of its motion for summary judgment, the State here offered the testimony and affidavits of multiple State officials and employees attesting to the State’s discretionary policy governing the removal of, or the placement of guardrails around, hazards such as Cobb Brook. In sum, the State’s policy is to remove or guard against all such hazards within thirty feet of the edge of the driving lane. Where, as here, the hazard lies outside the thirty-foot “dearzone,” the decision to remove or guard against such a hazard is left to the judgment of the State’s highway officials.- Among the factors considered in making such a decision are the likelihood of an errant vehicle reaching the hazard — which in turn involves both engineering calculations of speed and terrain as well as the history of accidents at the location — weighed against such factors as the nature and gravity of the risk of injury, the cost of removal or protection, and the environmental and aesthetic impact of removing or guarding against the hazard. Officials also must weigh the likely efficacy of a guardrail in the location in question against the fact that guardrails themselves pose risks to the traveling public.
¶ 7. The evidence here thus established not only that the State’s policy vested extensive discretion in its highway officials to determine whether to remove or guard against such hazards as Cobb Brook, but also that the determination involved precisely the kind of policy judgments — the weighing of risks, financial coste, and environmental and aesthetic impacts — that the discretionary-function exception was designed to protect. See, e.g.,
Elder v. United States,
¶ 8. Plaintiff’s arguments to the contrary are unpersuasive. Plaintiff first asserts that summary judgment was improper because there was evidence the State had adopted a mandatory policy of removing or guarding against water hazards in excess of two feet in depth when an errant vehicle is likely to reach, the hazard. Plaintiff relies on a 1986 Agency of Transportation publication entitled “Maintenance Guide for Highway Guardrail” (Guide) as evidence of such a policy, as well as an expert’s opinion that a vehicle leaving the freeway in the circumstances of this case was likely to reach Cobb Brook absent a guardrail extending further north. Although the State initially disputed whether it had ever formally adopted the Guide as policy for Interstate 91, the point is immaterial, for the Guide itself fails to support plaintiff’s claim.
¶ 9. In relevant part, the Guide establishes — consistent with State policy — a thirty-foot clearzone within which all fixed obstacles and “nontraversable hazards” (defined to include water more than two feet in depth) should be removed. The Guide also contains a graph, known as Figure B, to calculate the clearzone for hazards outside the thirty-foot minimum based on such factors as operating speed and shoulder slope. Plaintiff maintains that, applying this formula, Cobb Brook lies within the clearzone measured from the edge of Interstate 91. The Guide, however, not only states but emphasizes that “Figure B shows suggested criteria for determining the clearzone ____” (Original emphasis.) Plainly, therefore, the Guide does not purport to impose a mandatory calculus, but merely “suggested criteria,” for the determination of whether a hazard lies within a clearzone requiring removal or other protection. Indeed, the same section of the Guide goes on to explain that although the engineering principles applicable to different categories of roads may be the same, the “probability” of an accident and “tiie economic factors” may differ. Therefore, according to the Guide, “[t]he same principles apply but judgment is required in their application.” (Emphasis added.) The Guide also explicitly recognizes that “a guardrail itself is a hazard” and “should be installed only if it is clear that the rail offers less of a hazard” than the condition to be guarded against.
¶ 10. Thus, by its own terms the Guide makes clear that its criteria are “suggested” not mandatory, that “judgment is required in their application,” and that other factors may enter into the determination of whether a hazard lies within the clearzone requiring removal or guardrail protection. The Guide does not, therefore, support plaintiff’s claim that the decision
¶ 11. Plaintiff also argues that, even assuming such discretion, the State’s failure to remove or adequately guard against the hazard posed by Cobb Brook was not based on a policy judgment, and therefore does not satisfy the second prong of the discretionary-function exception. As noted, we presume that the discretion involved policy considerations, and the burden is on plaintiff to ‘“present specific facts sufficient to rebut the presumption.’”
Searles,
¶ 12. Plaintiff’s effort to rebut this evidence rests on the testimony of several highway officials describing the removal of a beaver dam as a “routine maintenance operation,” as well as testimony that removal of the dam or, in the alternative, the modest extension of a guardrail would involve only nominal costs. Plaintiff thus argues that the discretionary-function exception affords no protection to such allegedly routine ministerial tasks. The argument does not withstand scrutiny. Ministerial maintenance decisions of the kind suggested by plaintiff have been described as the mere “implementation of a previous policy decision,”
State v. Barraza,
¶ 14. Although plaintiff cites several decisions holding the discretionary-function exception to be inapplicable to maintenance failures, these cases are largely distinguishable based on the absence of any evidence of an underlying policy judgment. See
Gotha v. United States,
¶ 15. More on point here are cases such as
State v. Barraza,
where the court held that a decision not to upgrade existing guardrails on an interstate highway represented a discretionary policy judgment rather than a ministerial maintenance decision, thus barring suit by a passenger in a vehicle that traveled over a guardrail and rolled down an embankment.
¶ 16. Here, as in the foregoing decisions, the conduct at issue was not the State’s implementation of a specific pre-existing policy for removal of roadside hazards, but its identification of such hazards for removal, balancing safety, cost, and environmental factors. Such policy considerations fall squarely within the discretionary-function exception.
Gaubert,
Reversed.
Notes
The facts set forth below were those on which the parties generally agreed.
The complaint also alleged that the State was negligent in initially constructing the Interstate according to its design plans, but plaintiff has not pursued this claim.
This section provides that the State is not liable for
[a]ny claim based upon an act or omission of an employee of the state exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid, or based upon the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused.
See footnote 4, supra, for the full text of this section.
Because the discretionary function exception to the Vermont Tort Claims Act is nearly identical to that of the Federal Tort Claims Act, “[t]his Court therefore looks to case law interpreting the federal provision to guide us in analyzing 12 V.S.A § 5601(e).”
Lane v. State,