Johnson v. Agency of Transportation

Johnson v. Agency of Transportation (2005-090); 180 Vt. 493; 904 A.2d 1060

2006 VT  37

[Filed 08-May-2006]
                                          
                                 ENTRY ORDER

                                 2006 VT  37

                      SUPREME COURT DOCKET NO. 2005-090

                             JANUARY TERM, 2006


  Bridget M. Johnson                  }          APPEALED FROM:
                                      }
                                      }          Chittenden Superior Court    
      v.                              }
                                      }
  Agency of Transportation            }          DOCKET NO. S1004-03 Cnc

                                                 Trial Judge: Richard W. Norton

             In the above-entitled cause, the Clerk will enter:

       ¶   1.  Plaintiff Bridget M. Johnson appeals from an order granting
  summary judgment in favor of defendant Agency of Transportation (AOT). 
  Plaintiff had sued AOT for damages for injuries she sustained in an
  automobile accident, arguing that AOT was negligent in failing to provide
  adequate temporary traffic control during routine traffic signal
  maintenance.  The trial court held that the lawsuit was barred by the
  discretionary function exception to the Vermont Tort Claims Act, 12 V.S.A.
  § 5601(e)(1).  We affirm.

       ¶   2.  The following facts are undisputed.  At approximately noon on
  September 10, 2002, AOT traffic signal technician Russell Velander
  performed routine maintenance work on a master traffic signal controller at
  the intersection of U.S. Route 7 and Mountain View Drive in Colchester,
  Vermont.  The maintenance was intended to coordinate a series of traffic
  signals along Route 7.  During the maintenance, Velander put the traffic
  signal at that intersection on manual flash mode.  Once turned to manual
  flash, the traffic signal flashed yellow for motorists traveling on Route 7
  and flashed red for motorists traveling on Mountain View Drive.  No other
  traffic control was used during this seventeen-minute interval. 

       ¶   3.  Shortly after Velander set the signal to flashing mode,
  plaintiff approached the intersection in the south-bound, right-hand lane
  of Route 7.  At the same time, Marguerite Majarian attempted to turn left
  from Mountain View Drive into a north-bound lane of Route 7.  Majarian
  struck the passenger side of plaintiff's vehicle, causing serious injury to
  plaintiff.  
   
       ¶   4.  Plaintiff brought a negligence suit against AOT, alleging
  that the accident was caused by Velander's negligence in: (1) "putting the
  traffic control signal on flashing red and yellow at this time of day,"
  i.e., a time of heavy traffic volume; and (2) "failing to provide adequate
  traffic control during this period of routine maintenance."  The trial
  court granted AOT's motion for summary judgment, holding that "a state
  employee's decisions as to the time and manner of traffic signal
  maintenance fall[] within the discretionary function exception to the
  Vermont Tort Claims Act."   Plaintiff concedes on appeal that the timing of
  traffic signal maintenance is a discretionary function within the meaning
  of 12 V.S.A. § 5601(e)(1) but appeals the trial court's conclusions as to
  the manner of the maintenance.  We review the grant of summary judgment
  under the same standard as the trial court:  we will not affirm unless
  there are no genuine issues of material fact and the moving party is
  entitled to judgment as a matter of law.  Lane v. State, 174 Vt. 219, 222,
  811 A.2d 190, 193 (2002).

       ¶   5.  The Vermont Tort Claims Act is a limited waiver of the
  State's sovereign immunity from suit.  12 V.S.A. § 5601.  Pursuant to the
  Act, the State retains immunity from:

    [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.

  Id. § 5601(e)(1).  The discretionary function exception is designed to
  ensure that courts do not second-guess legislative or administrative policy
  judgments through tort law.  Estate of Gage v. State, 2005 VT 78, ¶  4, 178
  Vt. 212, 882 A.2d 1157. 
    
       ¶   6.  In Searles v. Agency of Transportation, 171 Vt. 562, 563, 762 A.2d 812, 813-14 (2000) (mem.), we adopted the two-part test articulated by
  United States v. Gaubert, 499 U.S. 315 (1991), for determining whether a
  claim for damages against the State is barred by the discretionary function
  exception.  The first question is whether the challenged act involves " 'an
  element of judgment or choice,' " or whether a " 'statute, regulation, or
  policy specifically prescribes a course of action for an employee to
  follow.' "  Gaubert, 499 U.S.  at 322 (quoting Berkovitz v. United States,
  486 U.S. 531, 536 (1988)).  If the actor is simply following a specified
  course of action, there is no exercise of discretion.  If, however, the
  court concludes that the act involves judgment or choice, it proceeds to
  the second question, which asks whether the judgment " 'is of the kind that
  the discretionary function exception was designed to shield.' "  Id. at
  322-23 (quoting Berkovitz, 486 U.S. at 536).  And, when a statute,
  regulation, or policy vests discretion in the employee, it is presumed that
  the employee's acts are grounded in policy when exercising that discretion. 
  Id. at 324; Searles, 171 Vt. at 563, 762 A.2d  at 814.  Thus, for purposes
  of analyzing the second question, "the very existence of the regulation
  creates a strong presumption that a discretionary act authorized by the
  regulation involves consideration of the same policies which led to the
  promulgation of the regulations."  Gaubert, 499 U.S.  at 324.  Therefore,
  plaintiff's role in a motion for summary judgment is to allege facts
  sufficient to support a finding that the challenged act is not the type of
  act protected by the exception.  Id. at 324-25.  The focus of this analysis
  is on whether the actions taken are "susceptible to policy analysis," and
  not on the employee's "subjective intent in exercising the discretion
  conferred by . . . regulation."  Id. at 325.

       ¶   7.  The Manual on Uniform Traffic Control Devices has been
  adopted by the State of Vermont as the standard for all traffic control
  signals within the state.  23 V.S.A. § 1025(a); Fed. Highway Admin., U.S.
  Dep't of Transp., Manual on Uniform Traffic Control Devices for Streets and
  Highways (Millenium ed. 2000) [hereinafter MUTCD].  The MUTCD is divided
  into "Standard[s]," "Guidance," "Option[s]," and "Support."  Id. at I-3 to
  I-4.  Only the standards are binding on AOT.  See id. at I-3 (defining a
  "Standard" as "a statement of required, mandatory, or specifically
  prohibitive practice regarding a traffic control device").  The material in
  the other three categories is offered for AOT's consideration, to be used
  or not at the agency's discretion.  See id. at I-3 to I-4 (defining
  "Guidance" as "a statement of recommended, but not mandatory, practice"; an
  "Option" as "a statement of practice that is a permissive condition and
  carries no requirement or recommendation"; and "Support" as "an
  informational statement that does not convey any degree of mandate").

       ¶   8.  When maintenance work disrupts the normal flow of traffic,
  the MUTCD grants AOT considerable discretion to determine what type of
  temporary traffic control is necessary.  The standard in § 6 A. 01 provides
  that "[t]emporary traffic control plans and devices shall be the
  responsibility of the authority of a public body or official having
  jurisdiction for guiding road users."  Id. § 6 A. 01.  The supporting
  language in the same section identifies broad goals for the implementation
  of temporary traffic zones, including the safety of workers and road users
  and recognizes that "[n]o one set of temporary traffic control devices can
  satisfy all conditions for a given project," and that "defining details
  that would be adequate to cover all applications is not practical."  Id. 
  For this reason, the MUTCD does not mandate the use of flaggers in any
  particular situation.  See id. § 6E (providing standards that need to be
  followed if and when AOT elects to use flaggers in a given situation). 
  Furthermore, the MUTCD grants AOT discretion to determine whether it is
  appropriate to switch traffic signals from steady mode to flashing mode. 
  The standard in § 4D.12 states that "[t]he transition from steady mode
  (stop-and-go) to flashing mode, if initiated by a conflict monitor
  (malfunction management unit) or by a manual switch, shall be permitted to
  be made at any time."  Id. § 4D.12 (emphasis added).   
         
       ¶   9.  Plaintiff argues that the MUTCD specifically required
  Velander to consider the volume of traffic, the complexity of the
  intersection, and road user safety before choosing to employ flashing
  lights as a temporary traffic control.  Plaintiff points to the standard in
  § 6B.01, which states that "[t]he control of road users through a temporary
  traffic control zone shall be an essential part of . . . maintenance
  operations."  Id. § 6B.01.  However, plaintiff loads more upon the MUTCD
  than it can bear.  The provision relied upon by plaintiff merely suggests
  that AOT employees "will have to make discretionary judgments about how to
  apply concretely the aspirational goal embedded in the statement."  Shansky
  v. United States, 164 F.3d 688, 691 (1st Cir. 1999) (holding that a
  National Park Service guideline providing that "the saving of human life
  will take precedence over all other management actions" did not prescribe a
  specific course of action for the installation of handrails and warning
  signs).  We hold that the standard in § 6B.01 of the MUTCD does not
  prescribe a specific course of action for AOT employees to follow, but
  rather requires them to exercise "an element of judgment or choice" when
  selecting from competing temporary traffic controls.  Gaubert, 499 U.S.  at
  322.  

       ¶   10.   We turn next to the question of whether the choice of
  temporary traffic controls is "grounded in the policy of the regulatory
  regime."  Id. at 325.  When, as here, a regulation authorizes a government
  employee to exercise discretion, "it must be presumed that the agent's acts
  are grounded in policy when exercising that discretion."  Lane, 174 Vt. at
  225, 811 A.2d  at 195 (citing Gaubert, 499 U.S. at 324).  While plaintiff
  concedes that the choice of temporary traffic controls, even if negligent,
  "involve[s] a judgment or choice that [is] grounded in safety
  considerations for road users and workers,"  plaintiff attempts to overcome
  the presumption by pointing to Velander's self-proclaimed rule for
  maintenance operations-"if we're not in the road, the flash controls the
  intersection"-as evidence that Velander's choice exclusively focused on
  worker safety and was not grounded in the policies of the MUTCD.  Even
  considering this evidence of subjective intent at face value, it does not
  prove that Velander did not consider road user safety.  Rather, the
  statement shows only that, in his experience, his weighing of the risks
  associated with placing additional workers in proximity to moving traffic
  has resulted in this manner of traffic control.  We do not draw any
  inference from his failure to enumerate road user safety as a factor in his
  decision because we do not require the government "to produce evidence that
  it made a conscious decision, based upon policy considerations."  Searles,
  171 Vt. at 565, 762 A.2d  at 815.  To require such an articulable rationale
  for every choice of temporary traffic control would be "unduly burdensome." 
  Id.

       ¶   11.  Furthermore, plaintiff's argument misses the mark because
  "[w]hat matters is not what the decisionmaker was thinking, but whether the
  type of decision being challenged is grounded in social, economic, or
  political policy."  Cope v. Scott, 45 F.3d 445, 449 (D.C. Cir. 1995); see
  also Shansky, 164 F.3d  at 692 (considering plaintiff's attempt to rebut the
  Gaubert presumption by emphasizing the actual decision-making process to be
  "beside the point").  While "[e]vidence of the actual decision may be
  helpful in understanding whether the 'nature' of the decision implicated
  policy judgments," Cope, 45 F.3d  at 449 (quoting Gaubert, 499 U.S. at 325),
  "the issue is not the decision as such, but whether the 'nature' of the
  decision implicates policy analysis," id. (quoting Gaubert, 499 U.S. at
  325).  Plaintiff admits that the choice of temporary traffic controls is
  "grounded in safety considerations for road users and workers."  The choice
  to employ alternate forms of temporary traffic controls, such as flaggers
  or advance warning signs, also involves increased costs and extends the
  duration of maintenance operations, thus disrupting the normal flow of
  traffic for a longer period of time than may have been otherwise necessary. 
  Where the same maintenance work can be accomplished at less expense and
  with greater levels of safety for workers and the traveling public, the
  decision must be said to be "susceptible to policy analysis."  Gaubert, 499 U.S.  at 325.  
   
       ¶   12.  Plaintiff argues, however, that negligence that results from
  the lack of care or attention is not immunized.  She relies on Andrulonis
  v. United States, 952 F.2d 652 (2d Cir. 1991), and Coulthurst v. United
  States, 214 F.3d 106 (2d Cir. 2000), in support of her argument, but both
  cases are easily distinguishable from the present situation.  In
  Andrulonis, a bacteriologist who contracted rabies while conducting a
  laboratory experiment argued that his government supervisor failed to warn
  him about dangerous research conditions.  952 F.2d  at 653.  In denying the
  government's motion for summary judgment, the Second Circuit Court of
  Appeals reasoned that there was "neither a regulatory framework nor a
  defined policy that could serve as the basis for infusing all decisions of
  [Center for Disease Control] employees with policy implications."  Id. at
  655.  The court continued, "it is hardly conceivable that the CDC would
  ever have a policy to keep silent about obvious, easily-correctable dangers
  in experiments using drugs supplied by the CDC."  Id.  Similarly, in
  Coulthurst, a federal prisoner who was injured when a machine cable snapped
  while he was lifting weights alleged that his injury was caused by a
  government employee's "fail[ure] to diligently and periodically inspect the
  weight equipment."  214 F.3d  at 108.  There, the court reasoned that a
  failure to inspect weight-room equipment or an "absent-minded or lazy
  failure to notify the appropriate authorities upon noticing the damaged
  cable" involved types of negligence "unrelated to any plausible policy
  objectives."  Id. at 111.  In those two cases, there was no plausible
  policy that would authorize research directors to "keep silent about
  obvious, easily-correctable dangers," Andrulonis, 952 F.2d  at 655, or
  weight-room employees to "take a smoke break rather than inspect the
  machines," Coulthurst, 214 F.3d  at 111.  The difference between those cases
  and the present one is that the MUTCD specifically authorizes AOT employees
  to make decisions about what manner of temporary traffic control to use in
  a given situation.  MUTCD § 6 A. 01.  The regulatory framework of the MUTCD
  thus serves as the basis for infusing the choice of temporary traffic
  controls with policy considerations, such as worker safety and road user
  safety, and insulating the choice from liability-even if negligent-under
  the discretionary function exception.

       ¶   13.  We acknowledge some difficulty in discerning the scope of the
  Gaubert test and whether it adequately protects the interests of citizens
  injured by the acts of government employees.  See, e.g., Andrulonis, 952 F.2d  at 655 (arguing that a broad reading of Gaubert "would effectively
  insulate virtually all actions by a government agent from liability,
  excepting only those where the agent had acted contrary to a clear
  regulation"); Cope, 45 F.3d  at 448 (noting that application of the
  discretionary function exception "is admittedly difficult, since nearly
  every government action is, at least to some extent, subject to policy
  analysis") (quotations omitted).  In Estate of Gage, we discussed the
  distinction between "ministerial maintenance decisions" and the types of
  policy judgments protected by the exception.  2005 VT 78, ¶  12.  Justice
  Scalia explained this distinction in his concurring opinion in Gaubert and
  argued that governmental choices are insulated from liability "if the
  choice is, under the particular circumstances, one that ought to be
  informed by considerations of social, economic, or political policy and is
  made by an officer whose official responsibilities include assessment of
  those considerations."  499 U.S.  at 335 (Scalia, J., concurring).  Thus:

    [a] dock foreman's decision to store bags of fertilizer in a
    highly compact fashion is not protected by this exception because,
    even if he carefully calculated considerations of cost to the
    Government vs. safety, it was not his responsibility to ponder
    such things; the Secretary of Agriculture's decision to the same
    effect is protected, because weighing those considerations is his
    task.

  Id. at 335-36.  Velander's choice of temporary traffic controls was more
  than a ministerial maintenance decision because it is his responsibility to
  "ponder such things" as worker safety and road user safety.  The MUTCD
  vests the responsibility for temporary traffic control in "a public body or
  official having jurisdiction for guiding road users."  MUTCD § 6 A. 01
  (emphasis added).  The parties do not dispute that Velander covers traffic
  signal maintenance statewide as the only Level Three (the highest
  designation) traffic signal technician in the State.  These job duties
  "regularly require judgment as to which of a range of permissible courses
  is the wisest."  Gaubert, 499 U.S.  at 325.  For these reasons, we hold that
  Velander's choice of temporary traffic controls was a discretionary
  function within the meaning of the Vermont Tort Claims Act.  

       Affirmed.




                                       BY THE COURT:



                                       _________________________________________
                                       Paul L. Reiber, Chief Justice

          
                                       _________________________________________
                                       John A. Dooley, Associate Justice
     
                                       _________________________________________
                                       Denise R. Johnson, Associate Justice

                                       _________________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _________________________________________
                                       Brian L. Burgess, Associate Justice