Butler v. State, 68041

• Decision Date: 20 July 1983
• Docket Number: No. 68041,68041
• Citation: 336 N.W.2d 416
• Parties: Bruce T. BUTLER, Individually, and Bruce T. Butler, as Next Friend and Natural Parent of Susan Butler, a Minor; Steven S. Butler; Randall Butler; and William Butler, Appellants, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 416

336 N.W.2d 416

Bruce T. BUTLER, Individually, and Bruce T. Butler, as Next Friend and Natural Parent of Susan Butler, a Minor; Steven S. Butler; Randall Butler; and William Butler, Appellants, v. STATE of Iowa, Appellee.

No. 68041.

Supreme Court of Iowa.

July 20, 1983.

Lawrence L. Lynch and Mary K. Hoefer of Sladek & Lynch, Iowa City, for appellants.

Thomas J. Miller, Atty. Gen., and Craig Gregersen, Asst. Atty. Gen., for appellee.

Lee Gaudineer, Jr., of Gaudineer & Austin, Des Moines, for amicus curiae, Iowa State Ass'n of Counties.

Considered by UHLENHOPP, P.J., and HARRIS, McGIVERIN, LARSON and WOLLE, JJ.

McGIVERIN, Justice.

The genesis of this appeal is a motor vehicle accident which occurred in the early morning hours of April 11, 1974. At that time eight members of the Butler family were traveling west on Interstate 80 in a mobile home owned by plaintiff Bruce T. Butler. The one-way westbound road had two lanes for traffic plus paved shoulders. It was a wet and windy night and plaintiff Randall Butler, Bruce's son, was driving at about 50-55 mph.

Just west of Iowa City near the Tiffin exit, Randall moved into the inside, left-hand lane in order to pass a semi. As the motor home overtook the semi, a gust of wind pushed it onto the left shoulder of the road. Randall maintained his speed at 50-55 mph while trying to return the vehicle to the roadway. Before he was able to do so, the motor home struck a guardrail placed just off the shoulder of the interstate. The guardrail "speared" the motor home severely damaging it and injuring its occupants with varying degrees of severity. The most severely injured include plaintiffs Susan Butler, Bruce's daughter, and Steven S. and William Butler, Bruce's brothers.

Interstate 80 is part of our nation's interstate road network. The section where the accident occurred was built in 1965 with the substantial aid of federal funds. The design of the interstate, including the placement of guardrails, was approved by the Federal Highway Administration. A grassy median separated the roadway for westbound traffic from the one for eastbound traffic. The guardrail struck by plaintiffs was designed to protect motorists from a bridge pier in the center of the median. When the guardrail was installed in 1965, it was in conformance with the plans approved by the Federal Highway Administration, and it met the then existing standards of the traffic engineering profession.

The guardrail struck by plaintiffs consisted of a piece of W-beam steel directly attached to six-inch diameter round posts. The entire structure was 75 feet long. The "end treatment" consisted of a piece of guardrail flared toward the median, away from the westbound traffic, a distance of 18 inches on an 85-foot radius curve.

The state of the art concerning the design and placement of guardrails changed rapidly between 1965 when the guardrail in question was installed and 1974 when the accident occurred. In that time the State made five major changes in the guardrail standards for new construction.

After their claim was denied by the state appeal board, Iowa Code § 25A.5, plaintiffs, Michigan residents, brought a negligence action against the State under the Tort Claims Act. Iowa Code ch. 25A. The State filed a special appearance challenging the district court's subject matter jurisdiction under the "discretionary function" exception, section 25A.14(1), of the Tort Claims Act. Section 25A.14(1) provides in part as follows:

The provisions of this chapter shall not apply with respect to any claim against the state, to:

1. Any 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 be valid, or based upon the exercise or performance or the 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 be abused.

(Emphasis supplied.) The special appearance was overruled. The State then moved to strike several counts of the petition and again raised the discretionary function exception. This motion was overruled; the State answered and urged the discretionary function exception as an affirmative defense.

This law case was tried to the court on two specifications of negligence alleged by plaintiffs: (1) The State was negligent in the design and placement of the guardrail struck by plaintiffs; and (2) the State negligently failed to update the guardrail. The trial court as fact finder found that the guardrail complied with accepted engineering standards when it was installed; thus there was no negligence on the part of the State in its design and installation. The court also found that the State's failure to modify the design and update the guardrail was not a breach of the duty of due care owed by the State to plaintiffs. Alternatively, the district court ruled that any decisions made by the State concerning the design and modification of the guardrails was covered by the "discretionary function" exception of section 25A.14(1) to any tort liability by the State otherwise available to plaintiffs under chapter 25A.

Plaintiffs appealed. We transferred the case to the court of appeals, which reversed the trial court, holding that the case did not fall within the discretionary function exception and that the State was negligent as a matter of law in failing to update the outmoded guardrail. That court also remanded the case to the trial court for a decision on the issues of proximate cause and damages, if appropriate.

We granted the State's petition for further review. The issues presented are twofold: (1) Whether the initial design decision and the subsequent decisions by the State not to upgrade the guardrail are within the discretionary function exception of section 25A.14(1); and (2) whether substantial evidence supports the trial court's finding that the State was not negligent.

I. Discretionary function exception. Iowa Code section 25A.4 provides in part, "[t]he immunity of the state from suit and liability is waived to the extent provided in this chapter." Section 25A.14, however, lists several exceptions to this waiver of immunity.

Therefore, the initial determination to be made in actions brought under the Tort Claims Act is whether the State's actions fall under the exceptions of section 25A.14. If the State is covered by one of the statutory exceptions, the trial court must dismiss the action. Lloyd v. State, 251 N.W.2d 551, 556 (Iowa 1977). The result is the State is immune from tort liability for a claim listed in section 25A.14.

In the present case the State seeks shelter in the discretionary function exception. Iowa Code § 25A.14(1). We have adopted the planning-operational dichotomy set forth in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), to determine whether a decision challenged under chapter 25A was discretionary. Stanley v. State, 197 N.W.2d 599, 603 (Iowa 1972). The difficulty lies in determining when the planning level decisions stop and decisions on the operational level begin. Section 25A.14(1) is identical to the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. § 2860(a) (1976), and we are aided by federal interpretations of that provision. Lloyd, 251 N.W.2d at 556.

The planning level is generally characterized as the policy making stage and is said to encompass decisions "that involve the formulation of policy, that call for a weighing of competing interests, that require an assessment of the practicability or feasibility (including the consideration of budgetary constraints) of a proposed course of action, or that entail an evaluation of how the public interests will best be served." Estate of Callas v. United States, 682 F.2d 613, 620 (7th Cir.1982) (citations omitted). Thus the initial decision to undertake a project falls within the immunity of the planning stage. Lewis v. State, 256 N.W.2d 181, 195 (Iowa 1977) (quoting State v. Webster, 88 Nev. 690, 693, 504 P.2d 1316, 1319 (1972)) ("Whether or not, for the convenience of the traveling public, the State would construct a controlled-access freeway * * * was an exercise of discretion based on policy.").

The implementation of decisions made at the planning level is operational; decisions made at the operational level are not covered by the discretionary function exception. Lewis, 256 N.W.2d at 195. For example, in the area of highway construction and repair "[o]nce the decision [has been] made to construct [or repair] a ... freeway ..., the State [is] obligated to use due care to make certain that the freeway [meets] the standard of reasonable safety for the traveling public." Id. (quoting Webster, 88 Nev. at 693, 504 P.2d at 1319) (decision not to erect a median guardrail at place of accident on Interstate 29 made at operational level); cf., Stanley, 197 N.W.2d at 604 (decision to allow highway to remain open while under repair made at operational level).

The distinction between the two levels is best illustrated in terms of judicial review. Policy decisions, such as when and where to construct a freeway, involve the weighing of the merits of social, political and economic factors traditionally held to be within the purview of the legislature. Judicial review of such decisions would be an apparent violation of the separation of powers principle. Blessing v. United States, 447 F.Supp. 1160, 1180 (E.D.Pa.1978) (federal discretionary function exception statutorily embodies separation of powers principle). Decisions made at the operational level, however, do not involve the same overriding policy determinations and can readily be reviewed under judicially manageable tort standards of due care and reasonableness. Id. at 1185.

In the present case we must evaluate the Department of Transportation (DOT) decisions on which plaintiffs base their negligence...