Keegan v. StateKeegan v. State
Cynthia L. Keegan appeals the trial court’s order reducing her damages in a wrongful death action from $500,000 to $250,000 pursuant to the damage cap provision of the Utah
FACTS
This action arises out of a single vehicle accident which occurred on Interstate 80 in Parley’s Canyon on January 9, 1990, at approximately 7:30 a.m. David Keegan’s vehicle was eastbound on 1-80 when it skidded on black ice, climbed the concrete median barrier separating the eastbound and westbound lanes, slid along the top of the barrier, and collided with a bridge support pillar. Mr. Keegan died as a result of this accident.
Mrs. Keegan filed a wrongful death action against UDOT and the State, alleging that they were negligent in failing to maintain the median barrier in a reasonably safe manner. She specifically asserted that although the barrier had originally been constructed in accordance with safety standards promulgated by the American Association of State Highway and Transportation Officials (AASHTO), two subsequent surface overlay projects had shortened the barrier below AASHTO standards, rendering the barrier unsafe.
UDOT and the State moved for summary judgment, arguing that the decision not to raise the concrete median barrier during the surface overlay projects was a discretionary act shielded from liability by governmental immunity under
Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an. employee committed within the scope of employment except if the injury:
(a) arises out of the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused[.]
Mrs. Keegan responded that a cause of action brought under
Following trial, the jury returned a special verdict finding that defendants were negligent as alleged by Mrs. Keegan and that their negligence was the sole proximate cause of the death of Mr. Keegan. The jury awarded Mrs. Keegan damages of $500,000. The trial judge reduced the award to $250,-000 pursuant to the damage cap provision of the Utah Governmental Immunity Act,
(l)(b) A court may not award judgment of more than $250,000 for injury or death to one person regardless of whether or not the function giving rise to the injury is characterized as governmental.
Mrs. Keegan appeals, challenging the constitutionality of the cap provision of
DISCRETIONARY FUNCTION IMMUNITY
To determine whether a governmental entity is immune from suit under the Utah Governmental Immunity Act (the Act), three questions must be answered: (1) Was the activity undertaken by the entity a governmental function and therefore immunized from suit under the general grant of immuni
As to the first question, the test for determining whether the activity undertaken is a governmental function focuses on whether that activity “is of such a unique nature that it can only be performed by a governmental agency or that it is essential to the core of governmental activity.”
Standiford v. Salt Lake City Corp.,
The next question is whether another section of the Act has waived immunity. This question must also be answered in the affirmative here because
Having determined (1) that the activity in question is a governmental function subject to the immunity provisions of section 63-30-3 and (2) that blanket immunity has been waived by
Retroactive Application of 1991 Amendment to Section 68-30-8
UDOT and the State argue that the 1991 amendment to
Prior to the 1991 amendment,
Immunity from suit of all governmental entities is waived for any injury caused by a defective, unsafe, or dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct or other structure located thereon.
Unless the injury arises out of one or more of the exceptions to waiver set forth in Section 68-80-10, immunity from suit of all governmental entities is waived for any injury caused by a defective, unsafe, or dangerous condition of any highway, road,street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them.
UDOT and the State argue that this amendment to
Application of Section 6S-S0-10 to Section 6S-80-8 under Prior Law
Alternatively, UDOT and the State assert that even under the prior law,
Immunity from suit of all governmental entities is waived for any injury caused by a defective, unsafe, or dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct or other structure located thereon.
Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury:
(a) arises out of the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused[.]
This court first addressed the issue of whether the exceptions set forth in
This court’s decisions subsequent to
Velasquez
have continued to apply
Keegan additionally erroneously relies on language from this court’s decision in
Richards v. Leavitt,
In the most recent decision dealing with this issue,
Duncan v. Union Pacific Railroad,
this court employed the analysis of
Velasquez,
expressly reaffirming its holding therein.
Id.
In
Duncan, not
only did this court apply discretionary function analysis under
In summary, we note that
Velasquez
was this court’s earliest statement on the application of
Discretionary Function Exception
UDOT and the State assert that the decision not to raise the concrete barrier during the surface overlay projects was a discretionary act shielded from liability under
Discretionary function immunity under
Consistent with this approach, this court has ruled that decisions concerning placement of railroad warning signs,
Velasquez v. Union Pac. R.R.,
To regularize the outcome of inquiries into discretionary function, this court has adopted a four-part test to determine whether a given decision or act qualifies for a discretionary function exception:
“(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?
(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (8) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?”
Little,
Applying theke factors in the case at bar, we conclude that UDOT’s decision not to raise the concrete barrier during the surface overlay projects comes within the scope of this test. First, the decision involved a basic governmental objective: to wit, public safety on the roads. In .fact, prior to the second resurfacing, UDOT’s safety studies engineer, Art Guerts, carried out a comprehensive study of accident rates on the Parley’s Canyon section of 1-80 where the accident occurred and other comparable stretches of road and used his findings to create a safety study report. In that report, he concluded that not raising the barrier would not have an adverse effect on safety. Second, the decision was essential to the realization of that policy; it involved a determination of not only the degree of safety that would be provided by various options considered, but also what degree of safety would be an appropriate goal given time and cost constraints. Prior to submitting the second resurfacing project to the Federal Highway Administration (FHWA) for approval, which approval was granted, the project design engineer, Alex Badalian, prepared a cost-benefits report that was based on Guerts’ safety study report. Badalian’s cost-benefits report examined many factors including the cost of removing and replacing the barrier, the already-scheduled major resurfacing project for 1-80 in five or six years, the added delays and inconvenience to users of the highway if the barrier were to be dug up and replaced, and the possibility that the job could not be completed inexpensively and with minimal disruption to traffic during the short construction season in the canyon. Third, the decision involved the basic policy judgment and expertise of the agency involved. As noted above, studies of the plan, its cost, and the degree of safety it would provide were carried out by senior engineers and circulated throughout and debated within the department. Fourth, the agency had the authority to make the decision; UDOT is provided with “general responsibility for statewide highway ... and transportation planning, research and design, construction, maintenance, security and safety.”
Furthermore, this result coincides with the treatment of the discretionary function exception in other cases in this jurisdiction. As the court of appeals noted in
Duncan v. Union Pacific Railroad,
Highway maintenance and improvement are predominately fiscal matters. Every highway could probably be made safer by farther expenditures, but we will not hold UDOT (and implicitly, the legislature) negligent for having to strike a difficult balance between the need for greater safety and the burden of funding improvements.
Id.
at 601 (footnote omitted). In accordance with this principle, we conclude that the decision made in this case is analogous to the decisions addressed in
Velasquez, Duncan,
and
Rocky Mountain Thrift.
The plaintiffs’
Our holding is also supported by cases from other jurisdictions. In a virtually identical federal case,
Baum v. United States,
The decision of how and when to replace a major element of a substantial public facility is, like the decisions involving design and construction, at bottom a question of how best to allocate resources. Such a decision is inherently bound up in considerations of economic and political policy, and accordingly is precisely the type of governmental decision that Congress intended to insulate from judicial second guessing through tort actions for damages.
Id. at 724. Similarly, in the present case, the determination of whether to raise the concrete median barrier was a decision inherently bound up in economic, political, and safety considerations, as indicated by Guerts’ safety study report and Badalian’s cost-benefits report. Accordingly, it is likewise protected by discretionary function immunity.
Additionally, in
Patrazza v. Commonwealth,
UDOT’s decision not to raise the concrete barrier during the surface overlay projects was not an operational decision involving the negligent installation or maintenance of a traffic device, but rather involved a policy-based plan, approved by the FHWA, which resulted from a considered weighing of the costs and benefits of certain safety and construction policies and which involved the exercise of UDOT’s judgment and discretion. Accordingly, we hold that the decision not to raise the concrete barrier was a discretionary act shielded from liability under
CONCLUSION
Based on the foregoing, the decision of the trial court denying summary judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.
Notes
. UDOT and the State also appeal the trial court's denial of their motion to compare the fault of the Federal Highway Administration. However, because we dispose of this case on the ground that defendants' motion for summary judgment was incorrectly denied, we do not address defendants' comparative fault argument on appeal.
. At the time of Velasquez, the Utah Public Service Commission had responsibility for marking railroad crossings. That authority is now vested in UDOT.
. We note that the
Duncan
court did not expressly state that the case had been brought under
. Keegan argues that the decision made in this case is more akin to the decisions made in
Carroll, Andrus,
and
Bigelow.
We disagree.
Carroll
involved the actions of a road maintenance supervisor in marking off a closed road by constructing earthen berms rather than by putting up signs;
Andrus
involved the State's failure to maintain proper and adequate drainage at the site of a highway project. Neither action was based upon policy considerations or was designed to influence the final outcome of previous policy choices. Rather, both decisions involved practical operational choices of how specifically to cany out some previously made policy-based decision. Likewise, in
Bigelow,
which involved a faulty traffic control signal, once the policy decision to control the intersection with a traffic light had been made, seeing that the signal worked and continued to work properly was an operational function, a “ ' "routine, everyday matter[], not requiring evaluation of broad policy factors.” ’
” Bigelow,
Keegan additionally places special emphasis on this court’s statement in Bigelow that "the design of the traffic control system does not involve the ‘basic policy making level.' ” Id. at 53. This reliance, however, is misplaced. As this court noted in Duncan:
In Bigelow v. Ingersoll, two automobiles collided at a highway intersection due to an improperly synchronized traffic light which allowed the plaintiffs to malee a left turn in front of an oncoming vehicle which also had a green light. Obviously, there was a malfunction which was completely unintended and unanticipated and did not result from the exercise of anyone's judgment.
Duncan,