Searles v. Agency of Transportation
Annotate this Case
Searles v. Agency of Transportation (99-210); 171 Vt. 562; 762 A.2d 812
[Filed 24-Aug-2000]
[Motion for Reargument Denied 15-Sep-2000]
ENTRY ORDER
SUPREME COURT DOCKET NO. 99-210
JUNE TERM, 2000
Paul Searles, et al. } APPEALED FROM:
}
v. } Orleans Superior Court
}
Vermont Agency of Transportation }
} DOCKET NO. 212-9-97 Oscv
Trial Judge: David A. Jenkins
In the above-entitled cause, the Clerk will enter:
In this negligence action, plaintiffs appeal the Orleans Superior
Court's grant of summary judgement to defendant State of Vermont Agency of
Transportation. Plaintiffs claimed the State was under a duty to maintain
a sign warning of a nearby roadway intersection, the failure of the State
to do so was the proximate cause of the plaintiffs' injuries, and the
State was not immune from suit for their negligent inaction. The court
held: (1) the State was immune from liability under 12 V.S.A. §
5601(e)(8); (2) the State was immune from liability under 12 V.S.A. §
5601(e)(1); (3) the State had no duty to erect a warning sign; and (4) the
failure to erect a warning sign was not a proximate cause of the
plaintiffs' injuries. We conclude that the State is immune from liability
under 12 V.S.A. § 5601(e)(1), and, therefore, affirm.
On December 27, 1994, appellant Lisa Searles was driving east on Route
105 in Berkshire; Jason Callan was driving in a line of cars behind the
Searles. Lisa slowed down, put on her left-hand-turn signal, and began
turning left on to Marvin Road, a dirt road. At the same time, Callan
pulled left into the westbound lane of Route 105, and began to pass the
cars in front of him. Callan's car struck Lisa's car, and Lisa and her
daughters, Tanya and Denise, were injured. The Searles family sued the
State in negligence, alleging that the State had, and breached, a duty to
erect a sign on Route 105, warning drivers of the intersection with Marvin
Road, and that the failure to erect a sign was a proximate cause of their
damages. More specifically, according to the Searles, there had been a
sign on Route 105 east, near the intersection with Marvin Road, warning
drivers of a nearby railroad crossing and the road. Some time prior to
the accident, both the railroad track and the warning sign were removed.
The Searles contended that this sign served a dual purpose, warning
drivers of both the railroad and the intersection with Marvin Road, and
that the State should have replaced it with a sign warning drivers of the
intersection with Marvin Road.
"Summary judgment is appropriate where there is no genuine issue of
material fact and the
moving party is entitled to judgment as a matter of law, after giving the
benefit of all reasonable doubts and inferences to the nonmoving party."
City of Burlington v. National Union Fire Ins. Co., 163 Vt. 124, 127, 655 A.2d 719, 721 (1994). The relevant facts, set forth above, are not in
dispute; therefore, the issue is one of law, and our review is
nondeferential and plenary. See N.A.S. Holdings, Inc. v. Pafundi,
Vt. , , 736 A.2d 780, 783 (1999)
Under the common law, lawsuits against the state are barred unless the
state waives its sovereign immunity. See Denis Bail Bonds, Inc. v. State,
159 Vt. 481, 484-85, 622 A.2d 495, 497 (1993). Under 12 V.S.A. § 5601(a),
the State of Vermont has waived its immunity to lawsuits to the extent a
private analog exists. See Denis Bail Bonds, 159 Vt. at 485-86, 622 A.2d
at 498. There are, however, statutory exceptions to this waiver. See 12
V.S.A. § 5601(e). In Peters v. State, 161 Vt. 582, 582, 636 A.2d 340, 340
(1993) (mem.), we held that, under § 5601(a), the State could be sued for
negligent placement of warning signs because a private analog existed. We
did not, however, address any of the statutory exceptions.
Under 12 V.S.A. § 5601(e)(1), the State's immunity is preserved 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.
The purpose of the second clause of § 5601(e)(1), the discretionary
function exception, "is to assure that the courts do not invade the
province of coordinate branches of government by passing judgment on
legislative or administrative policy decisions through tort law." Sabia v.
State, 164 Vt. 293, 307, 669 A.2d 1187, 1196-97 (1995).
In United States v. Gaubert, 499 U.S. 315 (1991), the United States
Supreme Court set forth a two-part test for determining whether a
plaintiff's claim is barred by the discretionary function exception. (FN1)
Under this test, a court must determine 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.'" Id. at 322 (quoting Berkovitz v. United States, 486 U.S. 531,
536 (1988)). If the court concludes that the act involves judgment or
choice, it must then determine "'whether that 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). Because the
purpose of the exception is to prevent judicial second guessing of
legislative or administrative policy judgments, "the exception 'protects
only governmental actions and decisions based on considerations of public
policy.'" Id. at 323 (quoting Berkovitz, 486 U.S. at 537). According to
the Gaubert Court:
When established governmental policy, as expressed or implied by
statute, regulation, or agency guidelines, allows a Government
agent to exercise discretion, it must be presumed that the
agent's acts are grounded in policy when exercising that
discretion. For a complaint to survive a motion to dismiss, it
must allege facts which would support a finding that the
challenged actions are not the kind of conduct that can be said
to be grounded in the policy of the regulatory regime. The focus
of the inquiry is not on the agent's subjective intent in
exercising the discretion conferred by statute or regulation, but
on the nature of the actions taken and on whether they are
susceptible to policy analysis.
Id. at 324-25.
The Searles argue that State regulations, specifically the Manual on
Uniform Traffic Control Devices (MUTCD), mandated placement of a sign on
Route 105, warning drivers of the intersection with Marvin Road. We
disagree. The Vermont Legislature has provided that MUTCD "shall be the
standards for all traffic control signs, signals and markings within the
state." 23 V.S.A. § 1025(a). Thus, "[w]hen new traffic control devices
are erected or placed or existing traffic control devices are replaced or
repaired the equipment, design, method of installation, placement or repair
shall conform with such standards." Id. According to MUTCD:
[W]hile this Manual provides standards for design and application
of traffic control devices, the Manual is not a substitute for
engineering judgment. It is the intent that the provisions of
this Manual be standards for traffic control devices
installation, but not a legal requirement for installation.
Federal Highway Administration, U.S. Dept. of Trans., Manual on Uniform
Traffic Control Devices 1A-4 (1988). Furthermore: "Warning signs are
used when it is deemed necessary to warn traffic of existing or
potentially hazardous conditions on or adjacent to a highway or street."
Id. at 2C-1 (emphasis added). Given this language, we conclude, as have
other courts, that MUTCD "is more of a guidebook for the installation of
signs than a 'specific prescription.'" Cope v. Scott, 45 F.3d 445, 451
(D.C. Cir. 1995) ("As the manual points out, it is 'not a substitute for
engineering judgment,' and warning signs should be posted only 'when it is
deemed necessary.'") (quoting MUTCD 1A-4 & 2C-1), see also Harmann v.
Schulke, 432 N.W.2d 671, 674 (Wis. Ct. App. 1988) (MUTCD "provides in its
introduction: 'It is the intent that the provisions of this Manual be
standards for traffic control devices installation, but not a legal
requirement for installation.' The
Manual does not mandate the erection of any sign.") (quoting MUTCD 1A-4).
The Searles, however, argue that the State concluded that a warning
sign was necessary at the intersection of Route 105 and Marvin Road, and
thus, under MUTCD, the State was required to erect the sign. In support
of this argument, the Searles cite a March 1994 site review conducted by a
technician with the Agency of Transportation's Traffic and Safety Division.
According to the technician:
RR tracks were removed last summer along w/all warning signs . . . .
Review indicates 2 or 3 [side-road-ahead signs] should be replaced.
However, as the Searles acknowledge, "[t]he report does not indicate which
intersections [the technician] was referring to. . . . The affidavit
provided by the technician only states that his 1994 study was not
referring to the Marvin Road intersection." Thus, there is no evidence to
support the Searles' contention that the State deemed a warning sign
necessary but failed to erect one. We conclude that the decision whether
or not to erect a warning sign involves an element of judgment or choice,
and is, therefore, a discretionary act.
Next, the Searles contend that the State's failure to erect a sign on
Route 105 was not based on public policy considerations. The Searles
have, however, failed to "present specific facts sufficient to rebut the
presumption" that a discretionary decision is based on public policy
considerations. Baldassaro v. United States, 64 F.3d 206, 212 (5th Cir.
1995) ("the burden is on Baldassaro to allege facts that would support a
finding that the challenged action is not the kind of conduct that can be
said to be grounded in [public policy considerations]."). See also ALX El
Dorado, Inc. v. Southwest Sav. and Loan Ass'n, 36 F.3d 409, 412 (5th Cir.
1994) ("Here, the plaintiffs have alleged nothing that would suggest that
the statutory discretion exercised by the banking agencies-whether or not
exercised negligently-was not based on considerations of public policy.
Accordingly, plaintiffs' averments fail the second part of the Gaubert
test."); Baum v. United States, 986 F.2d 716, 721 (4th Cir. 1993) ("Under
. . . Gaubert, we will not assume that government agents, in undertaking
actions of the type normally thought to involve policy choices, in a
particular case acted arbitrarily or on whim, disregarding those essential
policy questions."); Kiehn v. United States, 984 F.2d 1100, 1108 n.12
(10th Cir. 1993) ("Nothing in the record rebuts the presumption that under
circumstances such as this, the government's actions and decisions were
grounded in policy."); Alderman v. United States, 825 F. Supp. 742, 745
(W.D.Va. 1993) ("Because the posting of signs along the Parkway by the
National Park Service is conduct that is discretionary in nature, the
defendant is protected from liability under the discretionary function
exception of the FTCA, even though no evidence has been presented that the
National Park Service deliberated as to whether to post signs warning of
pedestrian usage."). We recognize that some states have declined to apply
Gaubert's presumption. See, e.g., Tseu ex rel. Hobbs v. Jeyte, 962 P.2d 344, 349 (Haw. 1998) ("We believe that the analysis in Gaubert does not
provide sufficient protection to citizens injured by the actions of
government employees."). The facts of the instant case, however,
illustrate why Gaubert's presumption makes sense. The intersection at
issue is just one of many dirt road intersections in Vermont. To reverse
Gaubert's presumption and require the State to produce evidence that it
made
a conscious decision, based upon policy considerations, not to place a
warning sign at every dirt road intersection in Vermont, would be unduly
burdensome. The Searles have failed to overcome the presumption that the
discretion exercised by the State was based on public policy
considerations.
Finally, our analysis in the recent decision, McMurphy v. State, No.
98-499 (Vt. June 2, 2000), does not apply to the facts of this case. In
McMurphy, we were construing 12 V.S.A. § 5601(e)(8), which preserves the
State's immunity for "[a]ny claim arising from the selection of or
purposeful deviation from a particular set of standards for the planning
and design of highways." 12 V.S.A. § 5601(e)(8). The issue here,
however, is not the planning and design of Route 105. As noted, the
Searles' negligence claim is predicated upon the State's failure to replace
a railroad crossing sign with a warning sign. Therefore, § 5601(e)(8) and
McMurphy do not apply.
Affirmed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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Footnotes
FN1. The Gaubert Court was analyzing the discretionary function
exception to the Federal Tort Claims Act, which is nearly identical to
that of Vermont's Tort Claims Act. "We therefore look to the case law
interpreting the federal provision to guide us" in analyzing § 5601(e).
LaShay v. Department of Social & Rehab. Serv., 160 Vt. 60, 67-68, 625 A.2d 224, 229 (1993).
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