Stanley v. State

• Decision Date: 11 May 1972
• Docket Number: No. 54804,54804
• Parties: Billie Jo STANLEY, a minor, by her father and next friend, William Stanley, Appellee, v. STATE of Iowa, Appellant.
• Court: Iowa Supreme Court

Page 599

197 N.W.2d 599

Billie Jo STANLEY, a minor, by her father and next friend, William Stanley, Appellee, v. STATE of Iowa, Appellant.

No. 54804.

Supreme Court of Iowa.

May 11, 1972.

Richard C. Turner, Atty. Gen., and Larry M. Blumberg, Asst. Atty. Gen., for appellant.

Thomas L. McCullough, Sac City, for appellee.

LeGRAND, Justice.

The accident giving rise to this litigation occurred in 1967 on highway 175, which was then under repair pursuant to a contract between Iowa State Highway Commission and Noel Construction Company. While the work was in progress, the highway was left open for traffic and it was here that the plaintiff, Billie Jo Stanley, was injured when the truck in which she was a passenger, and which was being driven by her father, overturned.

A claim was filed with the State Comptroller as authorized by section 25A.3. It was withdrawn when it was not acted upon by the state appeal board within six months. (Section 25A.5). Suit was then started in district court and was tried to the court without a jury as section 25A.4 stipulates. Judgment was rendered for $37,000.00 plus $6000.00 for past and future medical and hospital expense. This claim for expense was assigned by William Stanley to his daughter so that the entire judgment is in her favor.

Defendant raises the following issues as grounds for reversal: (1) The trial court was without jurisdiction to try this matter because it falls within the exception set out in 25A.14(1), the Code; (2) The trial court erred in finding negligence of the defendant was a proximate cause of the accident; and (3) There is insufficient proof to support the award of damages.

We affirm on condition plaintiff files a remittitur for the amount of unproven medical bills as provided in Division VI.

I. We dispose first of the argument this claim must be disallowed because the Iowa Tort Claims Act (Section 25A.14(1), The Code, 1966) excepts from its operation the following:

'The provisions of this chapter shall not apply 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.

'2. * * *

'3. * * *

'4. * * *

'5. * * *' (Emphasis added.)

Defendant's rationale is that plaintiff's right to maintain this action depends on the state's consent to be sued under the Tort Claims Act; that plaintiff alleges negligence in the performance of a discretionary function by an agency of the state--the highway commission--and its employees; that, as shown by the portion of section 25A.14 set out above, the state has not consented to be sued for negligence in the performance of such a function; and that the trial court was therefore without jurisdiction in this matter.

Before saying why we cannot agree with defendant, we detail the facts leading up to this accident.

On July 15, 1967, plaintiff, then eight years old, was accompanying her father, William Stanley, on a trip from the family home in Farnhamville to Omaha. Mr. Stanley was driving a tractor attached to a double-deck trailer loaded with hogs which Mr. Stanley intended to deliver in Omaha. The journey took plaintiff and her father over that part of highway 175 which was then being resurfaced with asphaltic concrete. As the new surface was applied, the road was elevated, creating a drop-off of 10 to 12 inches from the edge of the pavement to the shoulder.

There were some warning signs, torch pots, and A-frame barricades along the way. The trial court found them to be wholly inadequate for the protection of motorists using the highway. We discuss this matter in more detail later.

As Stanley was driving along this portion of highway 175, an on-coming car him off the road. The tractor-trailer overturned, inflicting severe and permanent injuries on plaintiff.

The trial court found defendant was negligent in failing to give adequate warning of the conditions of the road and in creating and maintaining a dangerous drop-off of 10 to 12 inches between the edge of the pavement and the shoulder of the road. On this appeal defendant does not challenge this finding.

We now return to defendant's thesis that, despite the adverse findings of the trial court, there can be no recovery because the case falls within the 'discretionary function' exclusion of section 25A.14(1).

This is by no means a new argument. It has arisen countless times since the advent of tort claims acts by which sovereigns have consented to be conditionally sued. Federal courts have long been plagued by such litigation. However, we have not met the problem until now.

The two cases most frequently relied on by one side or the other are Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) and Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955).

Dalehite involved the Texas City ammonium nitrate explosion disaster which resulted in 560 deaths, 3000 personal injuries, and property damage of two hundred million dollars. By a 4--3 vote the Supreme Court held the acts said to be negligent all fell within the 'discretionary function' exclusion of the Federal Tort Claims Act--which is identical to our section 25A.14(1)--and denied plaintiffs the right to sue.

Dalehite held each specific act of negligence charged was performed precisely as the basic plan for the manufacture, packaging, labeling, and shipping of the product required. At pages 39, 40 of 346 U.S., at page 970 of 73 S.Ct., at page 1442 of 97 L.Ed. we find this statement:

'The acts found (by the district court) to have been negligent were thus performed under the direction of a plan developed at a high level under a direct delegation of plan-making authority from the apex of the Executive Department. The establishment of this plan * * * clearly required the exercise of expert judgment.'

The Indian Towing case, decided two years later, was determined on rehearing by a 5--4 split after it had first been affirmed by an equally divided court. It involved the negligent failure of the Coast Guard to keep the signal on a lighthouse operating and the failure to give warning of its malfunction. Although the decision depended in part on the interpretation of another statute, the court touched upon the liability of the government for negligence at the 'operational level' as opposed to its immunity for such conduct at the 'planning level.'

The effect of Indian Towing was to hold the government liable for conduct which, under Dalehite, would have required a finding of non-liability. While the majority disavowed this result and held the cases to be distinguishable, the minority considered one as overruling the other.

Virtually all the federal decisions on the 'discretionary function' exception to governmental tort liability recognize and apply the 'planning' and 'operational' tests in reaching a decision under particular facts. The difficulty arises in attempting to tell when the one stops and the other begins.

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.

There are numerous cases supporting this view. American Exchange Bank v. United States, 7 C.C.A.1958, 257 F.2d 938, 944 (Failure to install hand rail on postoffice steps); McCormick v. United States, U.S.D.C., Minn.1958, 159 F.Supp. 920, 923, 925 (injury resulting from negligent installation of uninsulated wires); McNamara v. United States, U.S.D.C., District of Columbia 1961, 199 F.Supp. 879, 881 (injury by fall in U.S. Capitol rotunda); Pierce v. United States, U.S.D.C., Tenn.1955, 142 F.Supp. 721, 731, affirmed United States v. Pierce, 6 Cir., 235 F.2d 466 (injury by negligent construction of electrical substation); Somerset Seafood Co. v. United States, 4 C.C.A.1951, 193 F.2d 631, 635 (failure to properly mark a sunken vessel); Dishman v. United States, U.S.D.C., Maryland 1950, 93 F.Supp. 567, 571, (negligence by physician in treatment of patient); Hernandez v. United States, U.S.D.C., Hawaii 1953, 112 F.Supp. 369, 370 (road block forcing motorcyclist off highway.)

We find a statement in Pierce v. United States, supra, 142 F.Supp. at 731, (later adopted by the 6 Cir. Court of Appeals in affirming the case) particularly applicable:

'The initial decision to construct VOW (Volunteer Ordnance Works) and the decision to reactivate (it) surely involved an exercise of discretion for which no liability attaches. Also the decision to undertake the reactivation work at the particular time * * * and similar decisions going to the over-all success of the project would necessarily involve decisions at high level in which the exercise of discretion * * * would be involved. * * * However, the Court is unable to go further and say that once the discretion was exercised to construct substations, any discretion was involved in the subsequent negligent construction and maintenance of this substation, or in the failure to warn workmen of its dangerous condition * * *. Neither can any exercise of discretion be seen in failing to take adequate precaution to see that this high-voltage power was not turned loose on such defective...