Estate of Gage v. State

Annotate this Case
Estate of Gage v. State (2003-403); 178 Vt. 212; 882 A.2d 1157

2005 VT 78

[Filed 22-Jul-2005]

       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.

                                 2005 VT 78

                                No. 2003-403

  Estate of Nicholas P. Gage, et al.	         Supreme Court

                                                 On Appeal from
       v.	                                 Orleans Superior Court

  State of Vermont	                         November Term, 2004

  John P. Meaker, J.

  Robert A. Mello and Richard J. Holmes of Robert A. Mello & Associates, PLC,
    for  Plaintiffs-Appellees.

  William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan, Assistant
    Attorney General, Montpelier, for Defendant-Appellant.

  PRESENT:  Dooley, Johnson, Skoglund and Reiber, JJ., and 
            Allen, C.J. (Ret.), (FN1)  Specially Assigned 

       ¶  1.  JOHNSON, J.   This appeal requires us to determine whether
  the discretionary function exception to the Vermont Tort Claims Act applies
  to immunize the State of Vermont from a negligence action arising out of an
  incident in which a vehicle left the roadway, flipped over a guardrail,
  rolled down an embankment, and landed in a brook, resulting in several
  drowning deaths.  The State contends  the decision whether to remove or
  guard against the drowning hazard involved policy considerations of the
  kind the discretionary function exception was designed to shield from suit.
  We agree, and therefore reverse the trial court judgment denying the
  State's motion for summary judgment. 

       ¶  2.  The tragic events underlying this appeal may be briefly
  summarized. (FN2)  Additional material facts will be adduced in the
  discussion that follows.  Early on the morning of March 2, 1998, Gregory
  Twofoot was driving south on Interstate 91. Twofoot had been drinking prior
  to operating the vehicle.  Robin LaFont, one of five passengers in the
  vehicle, asked Twofoot to pull over to the side of the interstate so that
  he could look in the trunk for beer.  When Twofoot refused, LaFont reached
  forward from the backseat and pulled the wheel to the right, causing
  Twofoot to lose control. Twofoot applied the brakes and the car skidded
  over two hundred feet, spun around, and struck the butt end of a guardrail
  at its northernmost point. The car then careened along the top of the
  guardrail an additional thirty feet with its two rear wheels over the
  guardrail and the front two tires dragging along the ground behind it.  One
  of the rear wheels then ripped off and the car became airborne and rolled
  to the bottom of an embankment where it landed upside down in Cobb Brook,
  in four feet of water, about 90 feet from the edge of the traveled roadway
  and some 500 feet from where Twofoot first lost control.  Four of the
  passengers drowned in the water. The driver and one passenger survived.
       ¶  3.  The estate of Nicholas Gage (hereafter plaintiff), one of the
  four passengers who died, brought this lawsuit against the State, claiming
  that it was negligent in failing to extend the guardrail further north,
  which allegedly would have prevented the vehicle from reaching the water,
  or in failing to remove a series of beaver dams that had increased the
  depth of the water in Cobb Brook, resulting in decedent's drowning death.
  (FN3)  The State moved for summary judgment on the ground, among others,
  that it was immune from suit under the discretionary function exception to
  the Tort Claims Act, 12 V.S.A. § 5601(e)(1). (FN4)  Following a hearing, the
  court issued an entry order summarily denying the motion.  The court also
  denied the State's subsequent motion for reconsideration, or, in the
  alternative, for permission to file an interlocutory appeal. The State then
  renewed its motion for permission to appeal with this Court.  We granted
  the motion to consider the State's sovereign immunity claim.
       ¶  4.  The controlling law is well settled.  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).  Under
  the Vermont Tort Claims Act, 12 V.S.A. § 5601(a), the State has waived its
  immunity for injury to persons caused by the negligent act or omission of a
  State employee while acting within the scope of employment, subject to
  certain delineated exceptions.  One of these exceptions is set forth in
  §5601(e)(1), which protects the State from any claim "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." (FN5)  The purpose of
  the discretionary function exception is to assure that courts do not invade
  the province of coordinate branches of government through "judicial second
  guessing of legislative or administrative policy judgments." Searles v.
  Agency of Transportation, 171 Vt. 562, 563, 762 A.2d 812, 814 (2000)

       ¶  5.  In Searles, we adopted the two-part test utilized by the United
  States Supreme Court for determining the applicability of the
  nearly-identical discretionary function exception in the Federal Tort
  Claims Act.  Id.  at 563-64, 812 A.2d at 813-14; see also Lane v. State,
  174 Vt. 219, 223-24, 811 A.2d 190, 194 (2002) (explaining and applying
  two-part discretionary function test).  This test, established in United
  States v. Gaubert, 499 U.S. 315, 322-23 (1991), first asks whether a
  statute, regulation, or policy specifically prescribes a course of action
  for the employee to follow.  If so, then the discretion requirement is not
  met.  Id.  If, however, the acts involved are "discretionary in nature,"
  involving "'an element of judgment or choice,'" the first prong of the test
  is satisfied.  Id. at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)).  The court must then decide under the second prong
  whether that judgment involved considerations of public policy which the
  discretionary function exception was designed to protect.  Id. at 323. 
  Under Gaubert, it is presumed that when a government agent is authorized to
  exercise discretion the agent's acts are grounded in policy when exercising
  that discretion.  Id. at 324.  Thus, to survive a motion for summary
  judgment, a plaintiff must allege facts sufficient to overcome the
  presumption that the discretion involved policy considerations.  Id.  The
  focus of the court's inquiry, furthermore, is not on the official's 
  specific subjective intent in exercising the discretion conferred, but on
  the general "nature of the actions taken and on whether they are
  susceptible to policy analysis."  Id. at 324-25. 
       ¶  6.  In support of its motion for summary judgment, the State here
  offered the testimony and affidavits of multiple State officials and
  employees attesting to the State's discretionary policy governing the
  removal of, or the placement of guardrails around, hazards such as Cobb
  Brook.  In sum, the State's policy is to remove or guard against all such
  hazards within thirty feet of the edge of the driving lane.  Where, as
  here, the hazard lies outside the thirty-foot "clearzone," the decision  to
  remove or guard against such a hazard is left to the judgment of the
  State's highway officials.  Among the factors considered in making such a
  decision are the likelihood of an errant vehicle reaching the hazard-which
  in turn involves both engineering calculations of speed and terrain as well
  as the  history of accidents at the location-weighed against such factors
  as the nature and gravity of the risk of injury, the cost of removal or
  protection, and the environmental and aesthetic impact of  removing or
  guarding against the hazard.  Officials also must weigh the likely efficacy
  of a guardrail in the location in question against the fact that guardrails
  themselves pose risks to the traveling public.  
       ¶  7.  The evidence here thus established not only that the State's
  policy vested extensive discretion in its highway officials to determine
  whether to remove or guard against such hazards as Cobb Brook, but also
  that the determination involved precisely the kind of policy judgments-the
  weighing of risks, financial costs, and environmental and aesthetic
  impacts - that the discretionary-function exception was designed to protect. 
  See, e.g., Elder v. United States, 312 F.3d 1172, 1180-83 (10th Cir. 2002)
  (park managers' decision whether to place guardrails or warnings along
  trail to prevent visitors from falling off ledge-which included such
  factors as the risks of safety measures themselves, cost/benefit analysis,
  and aesthetic considerations-involved policy judgments protected by
  discretionary function exception); Rosebush v. United States, 119 F.3d 438,
  444 (6th Cir. 1997) (decision whether to place railings around fire pit in
  park required "balancing the needs of the . .  .  users, the effectiveness
  of various types of warnings, aesthetic concerns, financial considerations,
  and the impact on the environment" and therefore was "within the
  discretionary function exception"); Baum v. United States, 986 F.2d 716,
  724 (4th Cir. 1993) (decision to upgrade or replace guardrail on bridge "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"); Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir. 1987)
  (affirming dismissal of lawsuit brought by driver of vehicle that slid off
  highway and down embankment on ground that decision whether or not to
  install guardrail "was the result of a policy judgment"); Fisher v. County
  of Rock, 56 N.W.2d 646, 653 (Minn. 1999) (holding that county's failure to
  add approach guardrails to a bridge was based on the "application of the
  county's bridge replacement policy, a policy that balanced roadway safety
  considerations and economic burdens" and therefore within the discretionary
  function exception).  As the court in Bowman cogently observed:
  "[O]fficials have more than safety in mind in determining the design and
  use of . . .  guardrails. . . . These decisions require balancing many
  factors: safety, aesthetics, environmental impact and available financial
  resources. . . .  It is precisely this type of decision that Congress
  intended to shield from liability because 'where there is room for policy
  judgment and decision, there is discretion.'" 820 F.2d  at 1394-95 (quoting 
  Dalehite v. United States, 346 U.S. 15, 36 (1953)). (FN6)
       ¶  8.  Plaintiff's arguments to the contrary are unpersuasive. 
  Plaintiff first asserts that summary judgment was improper because there
  was evidence the State had adopted a mandatory policy of removing or
  guarding against water hazards in excess of two feet in depth when an
  errant vehicle is likely to reach the hazard.  Plaintiff relies on a 1986
  Agency of Transportation publication entitled "Maintenance Guide for
  Highway Guardrail" (Guide) as evidence of such a policy, as well an
  expert's opinion that a vehicle leaving the freeway in the circumstances of
  this case was likely to reach Cobb Brook absent a guardrail extending
  further north.  Although the State initially disputed whether it had ever
  formally adopted the Guide as policy for Interstate 91, the point is
  immaterial, for the Guide itself fails to support plaintiff's claim.  

       ¶  9.  In relevant part, the Guide establishes-consistent with State
  policy-a thirty-foot clearzone within which all fixed obstacles and
  "nontraversable hazards" (defined to include water more than two feet in
  depth) should be removed.  The Guide also contains a graph, known as Figure
  B, to calculate the clearzone for hazards outside the thirty-foot minimum
  based on such factors as operating speed and shoulder slope.  Plaintiff
  maintains that, applying this formula, Cobb Brook lies within the clearzone
  measured from the edge of Interstate 91.  The Guide, however, not only
  states but emphasizes that "Figure B shows suggested criteria for
  determining the clearzone . . . ." (Original emphasis).  Plainly,
  therefore, the Guide does not purport to impose a mandatory calculus, but
  merely "suggested criteria," for the determination of whether a hazard lies
  within a clearzone requiring removal or other protection.   Indeed, the
  same section of the Guide goes on to explain that although the engineering
  principles applicable to different categories of roads may be the same, the
  "probability" of an accident and "the economic factors" may differ.
  Therefore, according to the Guide, "[t]he same principles apply but
  judgment is required in their application." (Emphasis added).  The Guide
  also explicitly recognizes that "a guardrail itself is a hazard" and
  "should be installed only if it is clear that the rail offers less of a
  hazard" than the condition to be guarded against   
       ¶  10.  Thus, by its own terms the Guide makes clear that its
  criteria are "suggested" not mandatory, that "judgment is required in their
  application," and that other factors may enter into the determination of
  whether a hazard lies within the clearzone requiring removal or guardrail
  protection.  The Guide does not, therefore, support plaintiff's claim that
  the decision to identify  Cobb Brook as a hazard within the clearzone
  represented a simple, mandatory calculation that the State's engineers
  negligently failed to perform.  Like the traffic-control manual at issue in
  Searles, which provided that it was "not a substitute for engineering
  judgment," 171 Vt. at 564, 762 A.2d  at 814, the highway Guide in this case
  does not set forth a "specific prescription" but rather retains a broad
  element of discretion in the officials responsible for its application. 
  Id.  The fact that plaintiff's expert, applying the Guide's suggested
  criteria, determined that Cobb Brook was within the clearzone at the point
  of the Interstate where the accident occurred may lend support to a claim
  that the State abused its discretion, but it does not alter the fundamental
  nature of the State's discretion.  Accordingly, there is no genuine dispute
  that the State has satisfied the first prong of the discretionary-function
       ¶  11.  Plaintiff also argues that, even assuming such discretion,
  the State's failure to remove or adequately guard against the hazard posed
  by Cobb Brook was not based on a  policy judgment, and therefore does not
  satisfy the second prong of the discretionary function exception.  As
  noted, we  presume that the discretion involved policy considerations, and
  the burden is on plaintiff to "present specific facts sufficient to rebut
  the presumption."  Searles, 171 Vt. at 565, 762 A.2d  at 815 (quoting
  Baldassaro v. United States, 64 F.3d 206, 212 (5th Cir. 1995)).  As also
  previously noted, ample record evidence supports the conclusion that the
  decision to remove or guard against such roadside hazards as Cobb Brook
  reflects a policy judgment based on safety, economic, and environmental
  factors.  As one highway official succinctly stated: "The Agency of
  Transportation is consistent[ly] and constantly trying to balance the
  provision of safest possible highway at a reasonable cost, versus
  protection of the piece of Vermont that brings tourists and residents to
       ¶  12.  Plaintiff's effort to rebut this evidence rests on the
  testimony of several highway officials describing the removal of a beaver
  dam as a "routine maintenance operation," as well as testimony that removal
  of the dam or, in the alternative, the modest extension of a guardrail
  would involve only nominal costs.  Plaintiff thus argues that the
  discretionary function exception affords no protection to such allegedly
  routine ministerial tasks.  The argument does not withstand scrutiny. 
  Ministerial maintenance decisions of the kind suggested by plaintiff have
  been described as the mere "implementation of a previous policy decision,"
  State v. Barraza, 157 S.W.3d 922, 928 (Tex. App. 2005), or "routine
  periodic maintenance mandated by explicit policy." Mitchell v. United
  States, 225 F.3d 361, 364 (3rd Cir. 2000).  Here, however, the testimony on
  which plaintiff relies made quite clear that, although the physical removal
  of a beaver dam may represent a routine maintenance "operation," the actual
  decision to do so represents a policy judgment based on experience and the
  weighing of multiple factors, including the likelihood of an errant vehicle
  reaching the hazard, financial cost, and environmental impact. This is
  precisely the kind of policy judgment that the discretionary-function
  exception was designed to protect from judicial second-guessing.  See Baum,
  986 F.2d  at 724 (holding that alleged negligence in maintaining guardrail
  posts implicated, at bottom, a decision "of how and when" to replace
  elements of highway system that was "inherently bound up in considerations
  of economic and political policy" within the discretionary function
       ¶  13.  Furthermore, focusing on the cost of one isolated repair
  misapprehends the nature of the discretionary function exception, which
  looks to the general "nature of the actions taken" rather than the
  official's "subjective intent" in any individual case.  Searles, 171 Vt. at
  565, 762 A.2d  at 814-15 (observing  that "[t]he intersection at issue is
  just one of many dirt road intersections in Vermont," and thus the State
  was not required to prove "that it made a conscious decision, based on
  policy considerations, not to place a warning sign at every dirt road
  intersection in the Vermont"); Mitchell, 225 F.3d  at 366 (in concluding
  that discretionary function exception barred negligence action for failure
  to remove or upgrade highway culvert, court noted that "[t]he Park Service
  had to balance the costs of the repairs of every culvert head-wall along
  Route 209, along with . . .  other safety issues . . . against the low risk
  of an accident").
       ¶  14.  Although plaintiff cites several decisions holding the
  discretionary-function exception to be inapplicable to maintenance
  failures, these cases are largely distinguishable based on the absence of
  any evidence of an underlying policy judgment.  See Gotha v. United States,
  115 F.3d 176, 181-82 (3d Cir. 1997) (court found no persuasive evidence
  that failure to install stairway with handrail at Navy facility was product
  of "military, social, or economic considerations"); Cohen v. United States,
  No. 98-CV-2604, 2004 WL 502924, at 7 (E.D.N.Y. Jan. 29, 2004) (concluding
  that lack of evidence of "competing public policy considerations"
  underlying decision not to maintain log retainers on walking trail
  precluded application of discretionary function exception, although
  decision not to erect handrails was within the exception); City of Fort
  Worth v. Gay, 977 S.W.2d 814, 817 (Tex. App. 1998) (court found no evidence
  of policy factors underlying city's alleged negligent failure to clean
  storm drain).   Plaintiff's substantial reliance on State v. Abbott, 498 P.2d 712 (Alaska 1972), is similarly misplaced.  In concluding that the
  State's allegedly negligent failure to adequately sand an icy highway was
  not within the discretionary function exception, the court there made clear
  that the conduct at issue did not reflect any policy judgment or weighing
  of competing social, economic, or environmental factors - "it merely
  implement[ed] the basic policy decision."  Id. at 722.  Furthermore,
  although not essential to the decision, the court explicitly relied on a
  somewhat artificial distinction between "planning" and "operational" level
  decisions, id. at 718, a distinction the United States Supreme Court
  expressly rejected in Gaubert, 499 U.S.  at 325-26 (holding that
  "[d]iscretionary conduct is not confined to the policy or planning level"
  and therefore rejecting "a nonexistent dichotomy between discretionary
  functions and operational activities"). 

       ¶  15.  More on point here are cases such as State v. Barraza, where
  the court held that a decision not to upgrade existing guardrails on an
  interstate highway represented a discretionary policy judgment rather than
  a ministerial maintenance decision, thus barring suit by a passenger in a
  vehicle that traveled over a guardrail and rolled down an embankment.  157 S.W.3d  at 928; see also Mitchell, 225 F.3d  at 364, 366 (holding that
  decision not to remove or upgrade aging highway culvert was a discretionary
  judgment rather than "routine periodic maintenance" where government had
  "articulated several policy considerations" underlying decision); Autery v.
  United States, 992 F.2d 1523, 1531 (11th Cir. 1993) (rejecting plaintiff's
  claim that park service's failure to remove decaying locust tree
  constituted negligent failure to implement maintenance policy, where
  evidence showed that identification of hazardous trees for removal was
  discretionary judgment based on economic and environmental factors); Hennes
  v. Patterson, 443 N.W.2d 198, 204 (Minn. Ct. App. 1989) (highway
  maintenance department's failure to remove snowbank from highway barrier
  was not maintenance omission but rather product of resource allocation
  "based on competing factors of safety of the public, safety of its workers,
  limitations of its budget, and availability of equipment," and therefore
  within discretionary function exception).   
       ¶  16.  Here, as in the foregoing decisions, the conduct at issue was
  not the State's implementation of a specific pre-existing policy for
  removal of roadside hazards, but its identification of such hazards for
  removal, balancing safety, cost, and environmental factors.  Such policy
  considerations fall squarely within the discretionary function exception.
  Gaubert, 499 U.S.  at 323 (purpose of the exception is to prevent judicial
  second-guessing of administrative decisions "grounded in social, economic,
  and political policy") (quoting United States v. Varig Airlines, 467 U.S. 797, 814 (1984)). Accordingly, there is no genuine dispute that the second
  prong of the discretionary function exception is satisfied, thereby
  immunizing the State from suit.  The trial court decision denying the
  State's motion for summary judgment based on sovereign immunity was
  therefore incorrect, and must be reversed. 


                                       FOR THE COURT:

                                       Associate Justice


FN1.  Chief Justice Allen sat for oral argument but did not participate in
  this decision.

FN2.  The facts set forth below were those on which the parties generally

FN3.  The complaint also alleged that the State was negligent in initially
  constructing the interstate according to its design plans, but plaintiff
  has not pursued this claim.

FN4.  This section provides that the State is not liable 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.

FN5.  See footnote 4, infra, for the full text of this section.

FN6.  Because the discretionary function exception to the Vermont Tort
  Claims Act is nearly identical to that of the Federal Tort Claims Act,
  "[t]his Court therefore looks to case law interpreting the federal
  provision to guide us in analyzing 12 V.S.A. § 5601(e)." Lane v. State, 174
  Vt. 219, 223 n.2, 811 A.2d 190, 192 n.2 (2002).