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 *619 Governmental Immunity Act, Utah Code Ann. § 63-30-34. The Utah Department of Transportation (UDOT) and the State of Utah (the State) cross-appeal the trial court’s dismissal of their motion for summary judgment. We reverse and remand on the cross-appeal.
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 Utah Code Ann. § 63-30-10(1) (1989), which reads in relevant part:
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 Utah Code Ann. § 63-30-8 (1989), which provides that “[ijmmunity from suit of all governmental entities is waived for any injury caused by a defective, unsafe, or dangerous condition of any highway,” is not subject to the exceptions set forth in section 63-30-10, including the discretionary function exception, and therefore, discretionary function analysis has no application to the present case. The trial court summarily denied defendants’ motion for summary judgment.
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, Utah Code Ann. § 63-30-34, which provides in pertinent part:
(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 section 63-30-34. UDOT and the State cross-appeal the denial of their motion for summary judgment. 1 Because defendants’ appeal of the denial of their motion for summary judgment is dispositive of this case, we address defendants’ cross-appeal first.
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
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ty contained in Utah Code Ann. § 63-30-8? (2) If the activity undertaken was a governmental function, has another section of the Act waived that blanket immunity? (3) If immunity has been waived, does the Act contain an exception to that waiver resulting in a retention of immunity against the claim asserted?
Ledfors v. Emery County Sch. Dist.,
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 Utah Code Ann. § 63-30-8 (1989) specifically waives immunity “for any injury caused by a defective, unsafe, or dangerous condition of any highway.” Id.
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 section 63-30-8, we are left with the question of whether the Act provides an exception to the waiver provisions of section 63-30-8 that results in the government retaining immunity against the claim asserted.
See Ledfors,
Retroactive Application of 1991 Amendment to Section 68-30-8
UDOT and the State argue that the 1991 amendment to section 63-30-8, which explicitly provides that the waiver provisions therein are subject to the discretionary function exception of section 63-30-10, is a clarification of section 63-30-8 and therefore should be applied retroactively. Keegan responds that the 1991 amendment should not be applied retroactively because it affects her substantive rights.
Utah Code Ann. § 68-3-3 provides the general rule that statutes are not to be applied retroactively unless expressly so declared by the legislature. However, an exception exists for amendments clarifying statutes, which are applied retroactively,
State v. Higgs,
Prior to the 1991 amendment, section 63-30-8 read:
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.
Utah Code Ann. § 63-30-8 (1989). In 1991, the legislature amended section 63-30-8 to state:
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, *621 street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them.
Utah Code Ann. § 63-30-8 (1993) (emphasis added).
UDOT and the State argue that this amendment to section 63-30-8 is a clarification of the Governmental Immunity Act and should be applied retroactively. They support their position by noting that the legislative bill containing this amendment was entitled “An Act Relating to Governmental Immunity; Clarifying the Scope and Coverage of Governmental Immunity; and Making Technical Corrections.” S.B. 218, 49th Leg., Gen.Sess., 1991 Utah Laws 230. However, that same bill contained a provision stating, “This act has prospective effect only and any changes to the law caused by this act do not apply to any claims based upon injuries or losses that occurred before the effective date of this act.” Id. at 233. This provision clearly indicates that the legislature did not intend changes in the language of section 63-30-8 to be applied retroactively. Accordingly, defendants’ argument that the 1991 amendment to section 63-30-8 should be applied retroactively fails!
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, section 63-30-10 applies to section 63-30-8. Keegan responds that section 63-30-10 does not apply to section 63-30-8 and, therefore, a cause of action brought under section 63-30-8 preempts consideration of the exceptions listed in section 63-30-10, including the discretionary function exception.
Utah Code Ann. § 63-30-8 (1989) states:
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.
Utah Code Ann. § 63-30-10(1) (1989) reads in pertinent part:
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 section 63-30-10 apply to waivers of immunity under section 63-30-8 in
Velasquez v. Union Pacific Railroad
This court’s decisions subsequent to
Velasquez
have continued to apply section 63-30-10 analysis in cases brought under other sections of the Act.
See, e.g., Duncan v. Union Pac. R.R.,
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However, dieta in other cases subsequent to
Velasquez
have apparently caused “ ‘confusion concerning the interplay of specific waivers of immunity and the retained immunity in section 63-30-10.’ ”
Taylor v. Ogden City Sch. Dist.,
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 section 63-30-10 to a case brought *623 under section 63-30-8, 3 but it also specifically concluded that eases subsequent to Velasquez, including Bigelow and Richards, had not eroded its holding in Velasquez. Id. at 835.
In summary, we note that Velasquez was this court’s earliest statement on the application of section 63-30-10 to section 63-30-8, and it has never been definitively overruled or limited. Velasquez is also the most recently reaffirmed approach by this court. See id. Furthermore, the Velasquez rule not only comports with our prior case law, but makes sound decisional sense as well. The Governmental Immunity Act is designed to provide various avenues for overriding governmental immunity and to provide standards for guidance in adjudicating the claims that are allowed when immunity is waived. In keeping with its purpose, the Act renders certain negligent actions which create unsafe highways subject to liability while granting certain others immunity. Thus, the Act— specifically section 63-30-10 — requires us to examine whether the duty of care allegedly breached involves a level of discretionary decision making that the legislature has determined should not be subject to review by the court system but instead regulated by the political process. Accordingly, we conclude that the discretionary function exception set forth in section 63-30-10 does apply to cases brought under section 63-30-8, such as the one before us, and proceed to examine whether defendants’ decision not to raise the concrete median barrier falls within the discretionary function exception.
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 section 63-30-10. Keegan responds that UDOT’s decision not to raise the concrete barrier was not a discretionary function.
Discretionary function immunity under section 63-30-10 is designed “ ‘to shield those governmental acts and decisions impacting on large numbers of people in a myriad of unforeseen ways from individual and class legal actions, the continual threat of which would make public administration all but impossible.’”
Hansen v. Salt Lake County,
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.” Utah Code Ann. § 63-49-4(1). In essence, UDOT’s decision involved just the sort of policy-driven weighing of costs and benefits that the discretionary function exception was meant to protect.
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’
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claims in
Velasquez
and
Duncan
concerned decisions not to upgrade allegedly defectively marked railroad crossing warning devices;
Rocky Mountain Thrift
involved questions surrounding the design of a city flood control system. Like the ease at bar, all three cases addressed basic policy-based decisions. As stated by this court in
Duncan,
since the said decisions were ‘“the result of serious and extensive policy evaluation, judgment, and expertise in numerous areas of concern,’ ”
Duncan,
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 section 63-30-10.
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 section 63-30-8. However, because Duncan, like Velasquez, involved an allegedly defectively marked railroad crossing, it is clear that Duncan was likewise brought under section 63-30-8.
. 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,