Phillips By and Through Phillips v. City of Waukee, 89-1820

• Decision Date: 20 March 1991
• Docket Number: No. 89-1820,89-1820
• Parties: Linda Louise PHILLIPS, Deceased, By and Through the Duly Appointed Executor, Robert M. PHILLIPS, and Kristina L. Phillips, By and Through Robert M. Phillips, Natural Father and Next Best Friend, Appellants, v. The CITY OF WAUKEE, Iowa, and The County of Dallas, Iowa, Duly Organized Municipalities in the State of Iowa, Appellees. The CITY OF WAUKEE, Iowa, and The County of Dallas, Iowa, Third-Party Plaintiffs, v. David VAN GINKEL and Jack Van Ginkel, Third-Party Defendants.
• Court: Iowa Supreme Court

Page 218

467 N.W.2d 218

Linda Louise PHILLIPS, Deceased, By and Through the Duly Appointed Executor, Robert M. PHILLIPS, and Kristina L. Phillips, By and Through Robert M. Phillips, Natural Father and Next Best Friend, Appellants, v. The CITY OF WAUKEE, Iowa, and The County of Dallas, Iowa, Duly Organized Municipalities in the State of Iowa, Appellees.

The CITY OF WAUKEE, Iowa, and The County of Dallas, Iowa, Third-Party Plaintiffs, v. David VAN GINKEL and Jack Van Ginkel, Third-Party Defendants.

No. 89-1820.

Supreme Court of Iowa.

March 20, 1991.

Marc A. Humphrey of Humphrey and Haas, P.C., Des Moines, for appellants.

Robert Koop Johnson of Whitfield, Musgrave & Eddy, Des Moines, for appellee City of Waukee, Iowa.

Carlton G. Salmons of Austin, Gaudineer, Austin, Salmons & Swanson, Des Moines, for appellee County of Dallas, Iowa.

Considered by HARRIS, P.J., and SCHULTZ, LAVORATO, NEUMAN, and ANDREASEN, JJ.

HARRIS, Justice.

This suit against a city and county ¹ resulted from a tragic fatal automobile accident. The suit is grounded on a claim that traffic control devices at the scene were negligently placed. The trial court entered summary judgment for the defendants and we affirm.

Near but within the city limits of Waukee, in Dallas County, Ashworth Drive intersects with University Avenue. Ashworth Drive runs north and south at this point, and University runs east and west.

As plaintiff's decedent, Linda Louise Phillips, drove her automobile southward on Ashworth Drive toward this intersection there were no traffic control devices or signs to govern her approach or entry into the intersection. David Van Ginkel approached the intersection in a westerly direction on University Avenue. Westbound traffic at this point is governed by a yield sign. An accident investigator fixed Van Ginkel's pre-impact speed at fifty-three miles per hour.

Van Ginkel failed to yield and collided with the Phillips' vehicle within the intersection. Linda Phillips was killed in the collision; her daughter Kristina, a passenger in her vehicle, was injured.

Robert M. Phillips, Linda's surviving husband and executor, brought this action against Dallas County and the City of Waukee for Linda's estate and also as father and next friend of Kristina. The suit alleges the county and city were negligent in failing to maintain ² adequate traffic devices at and near the intersection.

I. Any possible liability for the city or county on such a theory has been severely restricted by statute. Iowa Code § 668.10(1) (1991). ³ A small and carefully circumscribed area of potential liability for the placement of traffic signs remains in the face of section 668.10(1), as spelled out in Hershberger v. Buena Vista County, 391 N.W.2d 217 (Iowa 1986), and later recognized in Saunders v. Dallas County, 420 N.W.2d 468 (Iowa 1988). These cases leave open the possibility that a public body can be called to answer in tort under Iowa Code chapter 668 for placing signs which mislead. Saunders, 420 N.W.2d at 472 ("For immunity to be lost it must appear as a minimum that the signs were erected in such a manner as to mislead or endanger the driver.").

Plaintiff in this case contends his suit qualifies as a claim that the placement of the signs misled Van Ginkel, thus constituting negligence for which defendants might not be immune. In granting summary judgment for defendants the trial court rejected this contention.

Plaintiff contends that Van Ginkel, as he approached the intersection, was not provided with a "yield ahead" sign, only with a "crossroad ahead" sign, some 579 feet east of the intersection. It is said this misled Van Ginkel concerning the nature of the intersection. Plaintiff also complains that the intersection was confusing in that he alleges northbound drivers on Ashworth and eastbound drivers on University were controlled by stop signs, whereas Van Ginkel was confronted only by a yield sign. The claimed confusion, it is said, is aggravated by the fact that the southbound drivers on Ashworth were controlled by neither a yield or stop sign. Plaintiff also complains the size of the yield sign controlling Van Ginkel, though oversized and lighted at night, was still smaller, and closer to the intersection, than department of transportation recommendations. Plaintiff believes Van Ginkel should also have faced a flashing yellow beacon as he approached the intersection. ⁴

We believe the trial court correctly rejected plaintiff's contentions for two reasons. First, plaintiff's complaints concerning the sign selection and placement go only to their sufficiency to warn the motoring public, a matter which section 668.10(1) clearly immunizes from tort liability. Saunders, 420 N.W.2d at 472 (failure to post signs is an "engineering choice [which] is plainly within the scope of immunized negligence"). There is nothing in plaintiff's complaints to suggest the motoring public could be misled, as in Hershberger, 391 N.W.2d at 220 (right turn sign placed upon a road which turned left was negligently installed, and placement was not immunized from liability).

Another special fact in this case also supports the grant of summary judgment. Van Ginkel was not confused or misled about the traffic controls at the intersection. The record is replete with evidence that he had driven through this intersection several times daily for many years. Van Ginkel in fact stated in his deposition that he knew a yield sign existed. A driver can scarcely be said to have been misled who knew of the approaching warning signs and was familiar with the intersection. The proximate cause of the collision resulted, not from any negligence of the city or county, but rather from the driving of Van Ginkel.

II. On appeal plaintiff mounts a constitutional attack on the statutory immunity created by section 668.10(1), asserting violations of equal protection, due process, and a right to a jury trial. We choose to pass serious reservations concerning whether this issue was properly preserved for our consideration and uphold the constitutionality of the statute. We have said:

whether or not the state or any of its political subdivisions or governmental agencies are to be immune from liability for torts is largely a matter of public policy. The legislature, not the courts, ordinarily determines the public policy of the state.

Boyer v. Iowa High School Athletic Ass'n, 256 Iowa 337, 347, 127 N.W.2d 606, 612 (1964).

In Graham v. Worthington, 259 Iowa 845, 860, 146 N.W.2d 626, 636-37 (1966), after noting that the...