Lane v. State

Lane v. State (2000-564); 174 Vt. 219; 811 A.2d 190

[Filed 23-Aug-2002]
[Motion for Reargument Denied 25-Sep-2002]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2000-564


  Roger A. Lane	                                 Supreme Court

                                                 On Appeal from

       v.	                                 Chittenden Superior Court


  State of Vermont	                         January Term, 2002


  David A. Jenkins, J.
      
  Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, and Reg J. Lormon, 
    Los Gatos, California, for Plaintiff-Appellant.

  William H. Sorrell, Attorney General, and Cathy Nelligan Norman and 
    Richard A. Johnson, Assistant Attorneys General, Montpelier, for 
    Defendant-Appellee.


  PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

        
       SKOGLUND, J.   This appeal arises out of a negligence action brought
  by plaintiff Roger Lane against defendant State of Vermont to recover for
  injuries sustained in an accident on an icy highway.  Lane argues that the
  State was negligent in (1) failing to close the section of Interstate 89
  North in the vicinity of the Waterbury/Bolton town line, (2) failing to
  adequately advise the motoring public that this section of I-89 was icy,
  and (3) affirmatively creating a defective condition by paving this section
  of I-89 with open graded pavement and enhancing the dangerous condition by
  failing to take specific measures to prevent and/or ameliorate the
  formation of ice.  The State filed a motion for summary judgment on all of
  Lane's claims on the grounds that they were barred by the

 

  discretionary function exception to the State's waiver of sovereign
  immunity.  The Chittenden Superior Court granted the State's motion for
  summary judgment on November 6, 2000.  The court held that Lane's first two
  claims against the State were barred by the doctrine of sovereign immunity
  and that Lane failed to raise any issue of material fact that the State
  affirmatively caused a defective condition in the highway or enhanced the
  dangerous condition by inadequate salting.  Lane appeals the grant of
  summary judgment to the State.  We affirm.

       In reviewing a grant of summary judgment, this court applies the same
  standard as the trial court.  Ross v. Times Mirror, Inc., 164 Vt. 13,
  17-18, 665 A.2d 580, 582 (1995).  Summary judgment is appropriate only when
  the moving party establishes that there is no genuine issue of material
  fact and that the party is entitled to judgment as a matter of law. 
  Samplid Enters., Inc. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776
  (1996). 	

       On December 22, 1995, Lane was involved in a car accident on
  Interstate 89 (I-89) near mile markers 67 and 68, just north of Waterbury. 
  The weather forecast and actual conditions for that date  were: 20 mile per
  hour winds, blowing snow, and freezing temperatures with rain resulting in
  icy and hazardous road conditions.  The State had posted signs warning
  drivers to reduce speed due to ice and snow at interchanges on I-89.  One
  such sign was located approximately three miles south of the accident site. 
  The State had re-paved this section of I-89 in October of 1995 with open
  graded pavement, which allegedly requires more monitoring and ice control
  measures than conventional pavement.  
   
       Lane was a passenger in a car driven by Leon Dunn.  Dunn, who was
  traveling approximately 65 miles per hour, noticed some cars pulled over on
  the right side of the road.  The car ahead of Dunn was going slow so he
  moved into the passing lane.  Dunn was unable to stop when he 

 

  encountered ice on the highway and skidded into another vehicle parked in
  the breakdown lane.  Lane suffered a severe spinal chord injury as a result
  of the accident.		

                                     I.

       Lawsuits against the State are barred unless the State waives its
  sovereign immunity.  Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 484-85,
  622 A.2d 495, 497 (1993); see also American Trucking Ass'ns, Inc. v.
  Conway, 152 Vt. 363, 376, 566 A.2d 1323, 1331 (1989) (holding that the
  doctrine of sovereign immunity precludes the maintenance of actions for the
  recovery of money against the State unless the State has consented to be
  sued).  Under the Vermont Tort Claims Act, 12 V.S.A. § 5601(a), the State
  has waived its immunity and has consented to be sued for injury to persons
  caused by the negligent or wrongful act or omission of an employee of the
  State while acting within the scope of employment.  Despite this general
  waiver, the Tort Claims Act has retained sovereign immunity for certain
  claims.  Two sections of the Tort Claims Act which specifically retain
  immunity are pertinent to our analysis: 12 V.S.A. § 5601(e)(1) & (8). (FN1) 

       The first is the discretionary function exception.  12 V.S.A. §
  5601(e)(1) protects the State 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.

 
               
       The purpose of this 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 Searles v. Agency of Transportation, 171 Vt. 562, 762 A.2d 812
  (2000) (mem.), this Court adopted a two-part test for determining whether a
  plaintiff's claim is barred under the discretionary function exception. 
  This test was first established by the U.S. Supreme Court in United States
  v. Gaubert, 499 U.S. 315, 322-23 (1991). (FN2)  The first prong of the test
  examines whether the acts involved are "discretionary in nature," involving
  "an element of judgment or choice."  Id. at 322 (quoting Berkovitz v.
  United States, 486 U.S. 531, 536 (1988)).  If a statute or regulation or
  policy specifically prescribes a course of action for an employee to
  follow, then the discretion requirement is not met.  Id.  If the court
  determines that the act involved an element of judgment or choice, it must
  then decide under the second prong "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).  Since its purpose is to
  prevent courts from passing judgment on legislative or administrative
  policy decisions through tort law, the discretionary function exception
  "protects only governmental actions and decisions based on considerations
  of public policy."  Id. at 323.
   
       12 V.S.A. § 5601(e)(8) is the second pertinent statutory exception to
  the general waiver of immunity and protects the State from "[a]ny claim
  arising from the selection of or purposeful 

 

  deviation from a particular set of standards for the planning and design of
  highways."  This Court has interpreted the statute, however, to preserve
  liability in circumstances where the State unintentionally failed to comply
  with chosen design standards.  McMurphy v. State, 171 Vt. 9, 12, 757 A.2d 1043, 1046 (2000) (if a plaintiff can prove that the State intended to
  comply with certain standards, but failed to do so, the State would be
  liable for any injury caused if the plaintiff can also prove that such
  noncompliance was negligence.)

       With these two statutory exceptions to the State's general waiver of
  immunity in mind, we turn to each of Lane's claims against the State.

                                     II.

       Lane first argues that the State's decision not to close I-89
  contradicted the public policy of keeping roads safe and therefore cannot
  be protected by the discretionary function exception outlined in 12 V.S.A.
  § 5601(e)(1).  We disagree.  Authority to close a state highway to public
  travel is vested in a traffic committee pursuant to 23 V.S.A. § 1006a(a),
  which states "[t]he traffic committee may close any part or all of any
  state highway to public travel to protect the health, safety or welfare of
  the public." (emphasis added).  The relevant statutory provision is not
  mandatory and clearly gives the committee discretion in deciding whether to
  close the highway or not.  The Traffic Committee has in turn delegated the
  authority to close portions of the State's highways for emergency reasons
  to the District Highway Engineers of the Vermont Department of Highways and
  the Troop Commanders of the Vermont State Police.  Code of Vermont Rules,
  Vol. 8A, 14 053 001-2 (1999).  The language of this provision delegates to
  officials on the scene the authority to act if their evaluation of the road
  conditions leads them to conclude that such action is necessary.  Such a
  decision clearly involves an element of judgment or choice, and therefore
  meets the first prong of the Searles test.

 

       We must then consider whether the action of closing a road involves
  the kind of policy judgement that the discretionary function exception was
  designed to shield.  Under the analysis relied on in Gaubert, when
  established governmental policy, as express 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.  Gaubert, 499 U.S.  at 324. 

       In Searles this Court adopted the Gaubert presumption that a
  discretionary decision is based on public policy considerations.  For
  plaintiff to survive on defendant's summary judgment motion, he must allege
  facts which would be sufficient enough to overcome the presumption that the
  discretionary decision to close a highway due to adverse weather conditions
  was based on public policy considerations.  Searles,  171 Vt. at 563, 762 A.2d  at 815.  He has failed to do so.  To the contrary, the decision
  whether to close one of the most traveled highways in Vermont is precisely
  the type of decision that the discretionary function exception was designed
  to insulate.  The court in Estate of Arrowood v. State, 894 P.2d 642,
  645-46 (Alaska 1995) held that the decision to close or not close a road
  due to inclement weather was a "planning-level decision" that fell within
  the ambit of the discretionary function exception of Alaska's Tort Claims
  Act and stated:

    If we ruled otherwise, the result would be that state officials
    would be forced to close state highways upon receiving notice of
    the first accident which resulted from adverse weather and road
    conditions, or else risk incurring liability for failure to do so. 
    Given the long winters and harsh weather conditions which occur
    throughout most of Alaska, such a decision would make road travel
    at best unreliable. 

  See also Childers v. United States, 841 F. Supp. 1001, 1015-16 (D. Mont.
  1993) (the decision whether to close a trail in a national park is clearly
  discretionary because it involves an element of judgment or choice and that
  such a decision inherently requires a balancing of public policy

 

  objectives, such as resource allocation, visitor safety, and visitor
  access).  Plaintiff has failed to overcome the presumption that the
  decision to close a road due to inclement weather is a discretionary
  function that involves the kind of public policy judgment protected by the
  discretionary function exemption.			

                                    III.

       Lane next argues that the State was negligent for failing to advise
  the motoring public that the section of I-89 in question was particularly
  susceptible to ice.  More specifically, he alleges that once the State made
  the affirmative act of posting warning signs, it was then bound to both
  erect a warning sign at the accident site and to comply with the United
  States Department of Transportation Federal Highway Administration's Manual
  on Uniform Traffic Control Devices (MUTCD).

       Under 23 V.S.A. § 1025(a), the Vermont Legislature has adopted the
  MUTCD for all traffic control signs, signals and markings within the state. 
  This Court has previously characterized the MUTCD as "more of a guidebook
  for the installation of signs than a 'specific prescription,' " Searles,
  171 Vt. at 564, 762 A.2d  at 814 (internal citation omitted).  It does not
  mandate the erection of any sign.  Id.  The MUTCD does not require signs
  warning drivers of adverse weather conditions in general, and does not
  require signs warning drivers of areas that are particularly susceptible to
  icy conditions in particular.  This Court has concluded that the decision
  whether or not to erect a warning sign is a discretionary act protected by
  the discretionary immunity exception outlined above.  Id. at 564, 762 A.2d 
  at 815.  
   
       While Lane does not dispute that the State has discretion in deciding
  whether or not to erect signs, he argues that the fact the State did place
  some warnings signs on I-89 is evidence in and of itself that the State
  deemed the warning signs necessary.  He argues that positioning the signs
  at interchanges did not adequately provide drivers with time to respond to
  road conditions and suggests 

 

  that the State was required to erect a sign near the accident site.  Lane,
  however, has failed to present any evidence that the State deemed that the
  area where the accident occurred required a specific warning sign.  Absent
  evidence that the State deemed a warning sign necessary but failed to erect
  one, or that the failure to erect a sign was not based on public policy
  considerations, the placement of signs is a discretionary function immune
  from suit.  See id. at 565, 762 A.2d  at 815 ("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."); see also Miller v. United States, 710 F.2d 656, 665-666
  (10th Cir.) (failure to warn of dangerous road conditions is not an
  actionable claim under the Federal Tort Claims Act). 
   
       In addition, Lane argues that once the State made the affirmative act
  of erecting warnings signs on the highway, it was then bound to follow the
  MUTCD requirements for those signs and its failure to do so constitutes
  negligence.  As discussed above, 12 V.S.A. § 5601(e)(8) preserves liability
  in circumstances where the  plaintiff can prove that the State intended to
  comply with certain standards, it did not comply, and such noncompliance
  was negligence.  McMurphy, 121 Vt. at 12, 757 A.2d  at 1046.  The State has
  conceded that the signs provided here were designed to comply with MUTCD
  requirements.  In order to survive summary judgment on this claim, however,
  Lane must still raise an issue of material fact as to whether the State was
  negligent in failing to comply with MUTCD.  MUTCD provides that in order to
  be effective, warning signs should provide adequate time for the driver to
  perceive, identify, decide and perform any necessary maneuver.  Federal
  Highway Administration, U.S. Dept. of Trans., Manual on Uniform Traffic
  Control Devices 2C-3 (1988).  Lane's evidence of the State's alleged
  negligence consists of Mr. Dunn, the operator of the car, claiming to have
  no knowledge of posted warnings signs and the supervisor for the 

 

  relevant district having no record of which direction the existing signs
  were facing on the day of the accident.  This evidence does not raise any
  issue of material fact as to whether the State was negligent in failing to
  comply with MUTCD requirements.

                                     IV.

       Finally, plaintiff claims that there is a genuine issue of material
  fact as to whether the State was negligent in failing to take specific
  measures to prevent and/or ameliorate the formation of ice on I-89.  The
  State has a duty to use reasonable diligence to maintain its roads in a
  reasonably safe condition for the uses for which they were established. 
  McCormack v. State, 150 Vt. 443, 445, 553 A.2d 566, 568 (1988).  A breach
  of this duty occurs where the State fails to correct a defect and has
  either actual or constructive notice of the existence of a defect, and a
  reasonable amount of time in which to correct it.  Id. at 445-46, 553 A.2d 
  at 568.  Where the defective condition is caused by an affirmative act of
  the State, however, no notice of any kind, either actual or constructive,
  is necessary.  Id. at 446, 553 A.2d  at 568. 
   
       Lane first argues that the State need not have had actual or
  constructive notice in order to be found negligent because it affirmatively
  created the dangerous condition on the highway by paving it with open
  graded pavement and then failing to appropriately modify its winter
  maintenance procedures.  Lane does not dispute that the State, in
  affirmatively deciding to pave the highway with open graded pavement, is
  immune from liability under 12 V.S.A. § 5601(e)(8).  Instead, Lane argues
  that once the State made the decision to pave the road with open graded
  pavement, its prior winter maintenance procedures should have been
  modified, and its resulting failure to properly maintain the open graded
  pavement indirectly, yet affirmatively, created the dangerous condition. 
  We again turn to the Searles test and conclude that decisions concerning
  winter maintenance procedures fall under the discretionary function
  exception and, like the State's decision to pave the highway with 

 

  open graded pavement, are immune from liability.  Decisions of how to
  allocate snow plow operators, resources, and equipment, whether for open
  graded pavement or conventional pavement, are clearly decisions that
  involve discretion and elements of choice.  The Vermont Agency of
  Transportation (VAOT) must use discretion in deciding how many workers to
  call in for any given winter storm event, how many trucks to put on the
  road at any given time, where on the highway to place those vehicles, and
  how much salt to use.    Decisions of how to combat severe winter weather
  conditions clearly involve the balancing of policy considerations,
  including safety, economic, social, and environmental factors.  See
  Amelchenko v. Borough of Freehold, 201 A.2d 726, 730-31 (N.J. 1964) ("The
  decision adopting a procedure regulating when, where and in what order of
  priority the equipment and personnel are to be used in dealing with
  [snowstorms] is legislative or governmental in nature.  Such decisions
  cannot be subject to review in tort suits for damages, for this would take
  the ultimate decision-making authority away from those who are responsible
  politically for making the decisions."); see also Hennes v. Patterson, 443 N.W.2d 198, 204 (Minn. Ct. App. 1989) (the state's decision not to remove a
  snowbank along a bridge guardrail on the weekend was done pursuant to a
  policy which balanced a number of factors, including safety and finances,
  and is therefore the type of decision which is immune from liability under
  the discretionary function exception).    
   
       To survive summary judgment the burden is on Lane to allege facts that
  would support a finding that the State's decisions of how to combat ice on
  a highway during a winter storm, open graded pavement or not, are not the
  kind of decisions grounded in public policy considerations.  Again, Lane
  has failed to do so.  Lane relies heavily on the State's winter maintenance
  logs as proof that the quantity of salt applied to the highway was
  deficient.  The State concedes and Lane himself recognizes that the VAOT
  employees did not adequately record their de-icing efforts in their

 

  maintenance records during this time.  In fact, as Lane acknowledges, the
  majority of the factors and conditions to be recorded on the maintenance
  logs such as, air and pavement temperatures, traffic conditions and
  snowpack, are absent.  From this Lane argues that faulty record keeping
  demonstrates the State's failure to act with diligence in maintaining safe
  roads.  Failure to record efforts to maintain is not the equivalent of a
  failure to maintain.  To the contrary, the State claimed that its employees
  worked "around the clock," applying a total of 171 tons of salt (more than
  double the amount accounted for in the maintenance logs), and that given
  the dire weather conditions the employees were not able to take the time
  away from their de-icing duties to maintain the logs.  As stated by one
  employee: "when it is freezing rain, you are more concerned with getting
  back up there, instead of sitting down, writing stuff."  Lane offered no
  evidence to contest these assertions.   The State's decisions to pave the
  highway with open graded pavement and how to best allocate employees and
  resources to combat severe winter weather conditions on such pavement are
  therefore protected by 12 V.S.A. § 5601(e)(8) and (e)(1) respectively. 
   
       In the alternative, Lane argues that even assuming the State did not
  affirmatively create a dangerous condition on the open graded pavement by
  failing to modify its winter maintenance procedures, it had actual or
  constructive notice that this section of I-89 had a propensity to ice up
  and become dangerous in the wintertime and the State thereby breached its
  duty by failing to modify its maintenance procedures to ensure the roads
  were in a reasonably safe condition.  See McCormack, 150 Vt. at 445, 553 A.2d  at 568.  Lane has failed to come forward with specific facts that
  would establish that the State had actual or constructive notice that the
  section of I-89 in question was particularly susceptible to icy conditions. 
  In response to the State's motion for summary judgment, Lane offered
  affidavits concerning weather reports for the day in question and the
  geography of the area, as well as affidavits of two lay witnesses who
  opined that the section of road in question was 

 

  susceptible to icing.  The opinions of the two lay witnesses do not
  constitute notice to the State as neither affiant claimed to have shared
  their concerns with any state agency.  In fact, in deposition seven state
  employees were asked if the relevant section of I-89 North was particularly
  susceptible to icy conditions and accidents.  None of them answered in the
  affirmative. (FN3)  Lane also offered the affidavit of an accident
  reconstruction expert wherein the expert opined that the area in question
  has a higher than normal accident rate.  The expert, however, did not
  address the cause of the accidents or whether they were related to winter
  weather conditions, nor did he indicate how he arrived at his conclusion. 
  Testimony which presents nothing but conclusions is insufficient to defeat
  a motion for summary judgment.  Morais v. Yee, 162 Vt. 366, 371-72, 648 A.2d 405, 409 (1994) (expert opinions that are unsupported by any specific
  facts, or any indication of how the opinion was formulated, cannot be used
  to meet the burden of demonstrating a disputed matter of fact).
   
       Finally, there was no evidence that the State had notice of any
  pre-existing dangerous situation in the area of I-89 where the accident
  occurred beyond the general situation created on the highway by the storm
  that day.  "If the undisputed facts reveal that there is an absence of
  sufficient proof as to one essential element of the claim, any factual
  disputes with respect to other elements of the claim become immaterial and
  cannot defeat a motion for summary judgment."  Burke v. Jacoby, 981 F.2d 1372, 1379 (2d Cir. 1992).  Because Lane has failed to show that the State
  breached its 

 

  duty to use reasonable diligence to maintain its roads in a reasonably safe
  condition, the State is entitled to summary judgment as a matter of law.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice
   

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                                  Footnotes


FN1.  12 V.S.A. § 5601(f) provides that the limitations in subsection (e) do
  not apply to claims against the State of Vermont to the extent that there
  exists coverage under a policy of liability insurance.  Subsection (f) does
  not apply in the instant case because there is no coverage under a policy
  of liability insurance for the claims in this action that fall within
  subsection (e)(1) or (e)(8).

FN2.  The discretionary function exception to the Vermont Tort Claims Act is
  nearly identical to that of the Federal Tort Claims Act.  This Court
  therefore looks to case law interpreting the federal provision to guide us
  in analyzing 12 V.S.A. § 5601(e).  LaShay v. Dep't of Social & Rehab.
  Servs., 160 Vt. 60, 67-68, 625 A.2d 224, 229 (1993); see also Searles, 171
  Vt. at 563 n.*, 762 A.2d  at 813-14 n.*.

FN3.  The State employee responses included the following: "Any one of them
  can go bad, anywhere, any time of day"; "all areas in [my] district command
  attention in a freezing rain situation"; "[I]t is not any different from
  one end to another. . . . When you get freezing rain coming down, it can be
  slippery anywheres [sic]"; "I cannot pick a certain area of the interstate
  that would freeze over quicker than another area.  And I am basing this on
  accidents that I have investigated over the years in Middlesex."; "[T]he
  whole interstate is susceptible to icy and snowy roads.  I can't say one
  particular area is more susceptible than the other."; "It can happen
  anywhere, all over the interstate, anywhere.  It just depends on what the
  weather does . . . you couldn't possibly predict it."