Metier v. Cooper Transport Co., Inc.

• Decision Date: 18 December 1985
• Docket Number: No. 85-257,85-257
• Citation: 378 N.W.2d 907
• Parties: Nancy Jean METIER, Appellant, v. COOPER TRANSPORT CO., INC., and Jerry Lee White, Defendants, State of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 907

378 N.W.2d 907

59 A.L.R.4th 1203

Nancy Jean METIER, Appellant, v. COOPER TRANSPORT CO., INC., and Jerry Lee White, Defendants, State of Iowa, Appellee.

No. 85-257.

Supreme Court of Iowa.

Dec. 18, 1985.

C. Joseph Coleman, Jr. of Mitchell, Coleman, Perkins & Enke, P.C., Fort Dodge, for appellant.

Thomas J. Miller, Atty. Gen., and Robin G. Formaker, Asst. Atty. Gen., for appellee.

Considered by REYNOLDSON, C.J., and McCORMICK, McGIVERIN, LARSON, and SCHULTZ, JJ.

REYNOLDSON, Chief Justice.

Plaintiff Nancy Jean Metier has appealed from a district court ruling dismissing her claim against the defendant, State of Iowa. Our review requires us to examine statutory and case law relating to governmental immunity, including the "discretionary function" exception to the State Tort Claims Act, a governmental exception to the Comparative Fault Act, and the liability of the State with respect to its protected deer herds. We affirm and remand for further proceedings in the claims against other defendants in the litigation.

November 1, 1983, the auto that plaintiff was driving came into collision with a truck owned by defendant Jack Cooper Transport Co., Inc., and driven by defendant Jerry Lee White. February 10, 1984, plaintiff filed an action against those defendants in Hamilton County, where the collision occurred.

September 25, 1984, plaintiff amended her petition to bring the State in as a defendant and to assert a separate claim against it. In this amendment and other amendments that followed, plaintiff alleged both vehicles were traveling northward on Iowa Highway 17 about three miles south of Webster City, Iowa, she was forced to swerve from her path of travel to avoid striking deer on the highway, and her vehicle was struck by the truck.

Plaintiff further alleged "[t]he area in which the accident occurred is, and has been for some time in the past, a crossing place for deer"; there had been numerous accidents involving deer in the area where plaintiff was injured; and the State knew or should have known the area was a deer crossing place and a hazard to motorists. Plaintiff asserted the State proximately and negligently caused her injuries and damages by failing to recognize an established deer crossing, failing to erect and maintain warning devices at the point where deer crossed the highway, and failing to warn motorists "in any manner of the dangerous circumstances involved at the deer crossing." In separate counts plaintiff alleged the State was liable as owner of the deer.

The State responded with a special appearance, asserting the court lacked subject matter jurisdiction because the State was immune from suit under the Iowa Code subsection 25A.14(1) discretionary function exception. It also filed a motion to dismiss and a motion to strike, directed against the four counts in plaintiff's claim against the State.

Trial court granted the motion to dismiss. It rejected the State's argument that under our case law the posting of a deer crossing sign was a discretionary function. The court was convinced, however, that the State, in these circumstances, had an Iowa Code subsection 668.10(1) exemption from fault for failing to post a warning sign at the crossing. Finally, trial court rejected the concept that the State, as owner of the deer, had the same liability as an individual owner of animals might have in similar circumstances.

Plaintiff's appeal thus raises three issues:

1. Did the court have subject matter jurisdiction to reach the merits presented by this case?

2. Does a deer crossing sign constitute a "traffic control device" within the meaning of Iowa Code subsection 668.10(1) so that the State cannot be held at fault for failure to erect such signs?

3. Does the State's control or supervision over the deer population provide a separate basis for imposing liability for plaintiff's personal injuries and property damage?

We address these issues in the divisions that follow.

I. Jurisdiction.

The State asserts the decision whether to erect a deer crossing sign is a discretionary function falling within an exception to the State Tort Claims Act. Section 25A.14 of that Act states:

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.

Iowa Code § 25A.14(1) (1983) (emphasis added). Thus, the State argues this case must be dismissed for lack of subject matter jurisdiction because plaintiff's claim falls within an enumerated exception to tort liability imposed on the State. See Lloyd v. State, 251 N.W.2d 551, 556-57 (Iowa 1977). We need not decide here whether the Lloyd rule has continued viability, because in this case we find the exception is not applicable.

The State claims support for its contention in Seiber v. State, 211 N.W.2d 698 (Iowa 1973), a case in which three justices found "[t]he policy determination of the State Highway Commission not to post 'deer crossing' signs on the highways of this State most certainly involves the exercise of discretion." Id. at 700. Three other justices specially concurred on "the ground that the papers in this particular case do not state facts or circumstances from which a jury could reasonably find that due care required a warning," but observed that "[i]f due care requires a warning, the State cannot avoid liability on the basis of a discretionary function," citing Stanley v. State, 197 N.W.2d 599, 603 (Iowa 1972). Two justices dissented; one took no part.

Seiber was before the district court on the State's motion for summary judgment, thus the "papers" supporting plaintiff's resistance were critical, as the specially concurring justices noted. In this case the jurisdictional issue arises on a special appearance limited to the ground that "placement of deer crossing signs ... falls purely within the discretion of the State of Iowa and its agencies." Therefore, the allegations of the petition that go to the merits of plaintiff's claim are taken as true and are not subject to contradiction when considering the legal issue raised by the special appearance. See Martin v. Ju-Li Corp., 332 N.W.2d 871, 873 (Iowa 1983); E & M Machine Tool Corp. v. Continental Machine Products, Inc., 316 N.W.2d 900, 904 (Iowa 1982).

In resolving the jurisdictional issue, we therefore accept as established that the proximate cause of the collision was deer on the highway in an area the State knew or should have known was a crossing place for deer, at which there had been numerous accidents involving such animals. We also accept as established that the area was devoid of warning signs that would alert the public to this hazard. It is clear the posture of this case is far different from that presented in the Seiber summary judgment motion.

Nor is there any further question the State has made a decision to place warning signs at highway deer crossings. The Uniform Manual for Traffic Control Devices (Uniform Manual), adopted by the Department of Transportation pursuant to Iowa Code section 321.252 (1983), illustrates and provides specifications for deer crossing warning signs. See Menzel v. Morse, 362 N.W.2d 465, 472 n.5 (Iowa 1985) ("We may judicially note [the] manual as a public document issued by a state agency.").

The specially concurring justices in Seiber, who relied on Stanley v. State, 197 N.W.2d 599, must have found the following language from that decision persuasive:

Undoubtedly there are hard cases where planning and operation overlap, but this is not one of them. The decision to keep highway 175 open during construction was one within the proper discretionary function for which no liability would attach; but once that decision was made, negligence in carrying out that policy cannot be excused on the ground the negligent acts were performed in the exercise of discretion within the meaning of the statutory exemption.

Every act involves discretion. However, the decision not to give proper warning is no more a "discretionary function" as defined in section 25A.14(1) than is the determination to drive a state-owned vehicle in excess of the speed limit.

Id. at 603.

Other decisions since Seiber further illuminate the applicable principles. We explored the discretionary function exception again in Butler v. State, 336 N.W.2d 416 (Iowa 1983). There, applying the planning-operational dichotomy, we held the State's decision not to upgrade its guardrails on Interstate 80 was not a planning stage decision but an operational decision that made the discretionary function exception inoperable:

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 claims. The first are decisions made concerning the design and placement of the guardrail. The second are decisions made over the course of the years not to update the guardrail. We conclude that these decisions were made at the...