IMPACT OF THE DISCRETIONARY FUNCTION EXCEPTION ON TORT LIABILITY OF STATE HIGHWAY DEPARTMENTS

The discretionary function exception had its origin in the Federal Tort Claims Act in 1946. The pertinent language is found in 28 U.S.C. Section 2680(a). Since then, the inability of the courts to draw a clear-cut distinction between discretionary and nondiscretionary activities has led to a maze of confusion in the cases. At the core of this confusion is the fact (now fully recognized) that virtually all human activity involves some element of choice, judgment, or discretion. Since this is so, the question arises of how to draw a line between activities that are discretionary and those that are nondiscretionary. That is the problem before the courts in attempting to interpret the provisions of the discretionary function exception. While no definitive answers have been provided, certain guidelines have been laid down by the courts, and it is the purpose of this paper to attempt to delineate and interpret these guidelines. Because this paper is concerned with liability of State highway departments--not liability of the Federal Government--attention is turned first to a consideration of statutes enacted at the State level that have taken their cue from the Federal Tort Claims Act in providing for discretionary function immunity. This is followed by a look at the decisions of the Supreme Court of the U.S. interpreting the provisions of 28 U.S.C. Section 2680(a). Topics considered in the remainder of the paper are: State cases construing the doctrine of discretionary immunity; and application of the discretionary function exception to activities of State highway departments. Among the activities discussed are the following: highway design, construction, and maintenance; warning signs and signals; guardrails and barriers; traffic lights; upgrading of highways; speed limits; snow and ice removal; dust control; provisions of driver's manual; effect of absence of decision-making; and effect of dangerous conditions. In conclusion, it is stated that the discretionary function exception, when pleaded and proved, is a formidable defense, it being nothing less than the retention of sovereign immunity. There is broad agreement as to its general scope, but there is less than broad agreement in its application to highway activities.