Johnson v. Vermont Agency of Transportation, No. 1004-03 CnC (Norton, J., Jan. 31,
2005)


[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying data included in the Vermont trial court
opinion database is not guaranteed.]


STATE OF VERMONT
Chittenden County, ss.:



BRIDGET M. JOHNSON

v.

VERMONT AGENCY OF TRANSPORTATION



                                            ENTRY
       The plaintiff, Bridget M. Johnson, seeks to recover from the Vermont Agency of
Transportation for its alleged negligence while performing maintenance on a traffic light.
The State files a summary judgment motion, arguing that the maintenance actions fall
under the discretionary function exception to the Vermont Tort Claims Act, and
therefore, the State has sovereign immunity. The Court agrees and grants the State’s
motion.
       This case stems from a traffic accident at the intersection of U.S. Route 7 and
Mountain View Drive in Colchester, Vermont. On the day of the accident, the
Transportation Agency was performing routine maintenance on a traffic signal at this
intersection. In order to facilitate this maintenance, Russell Velander, a traffic signal
technician with the Transportation Agency, changed the traffic signals at this intersection
from the standard “stop-and-go” cycle to a flash cycle—yellow flashes for Route 7 and
red flashes for Mountain View Drive.
        Johnson was driving south on Route 7 in the right-hand lane. When she went
through the flashing yellow light, Marguerite Majarian pulled onto Route 7 from
Mountain View and struck the side of Johnson’s vehicle, causing injury. Johnson now
sues the Transportation Agency, claiming negligence in Velander’s decision to perform
the maintenance at noon—a period of relatively high traffic—and failure to implement
adequate traffic control.
       In its summary judgment motion, the State argues that Velander’s conduct was
consistent with the Transportation Agency’s governing regulations. Vermont has adopted
the standards in the U.S. Department of Transportation Federal Highway
Administration’s Manual on Uniform Traffic Control Devices (MUTCD) for the “design,
method of installation, placement or repair” of traffic control signals. 23 V.S.A. § 1025.
Because the MUTCD regulations grant Velander discretion as to the manner in which he
performs maintenance work on traffic signals, the State argues, Velander’s conduct falls
within the discretionary function exception to the Vermont Tort Claims Act. Therefore,
the State has not waived its sovereign immunity under the Act, and this court lacks
jurisdiction over Johnson’s claim.
       Summary judgment is appropriate where there are no genuine issues as to any
material fact and any party is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3).
Here, the dispositive issue is a jurisdictional question and is one of law only. This issue is
whether a state employee’s decisions as to the time and manner of traffic signal
maintenance falls within the discretionary function exception to the Vermont Tort Claims
Act. For the following reasons, the court believes that they do. Therefore, this court lacks
jurisdiction over Johnson’s claim and summary judgment for the State is appropriate.
       The court has no jurisdiction to hear a lawsuit against the State unless the State
waives its sovereign immunity. Lane v. State, 174 Vt. 219, 222 (2002). Under the
Vermont Tort Claims Act, the State has waived sovereign immunity for negligent and
wrongful conduct of State employees who act within the course of their employment. 12
V.S.A. § 5601(a). The Act has an exception, however, for “an act or omission . . . based
upon the exercise or performance or 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 involved is abused.” Id. § 5601(e)(1). “The purpose of this exception is
assure that the courts do not invade the province of coordinate branches of government
by passing judgment on legislative or administrative policy decisions through tort law.”
Sabia v. State, 164 Vt. 293, 307 (1995).
        In interpreting this exception, the Vermont Supreme Court has adopted the two-
part test in United States v. Gaubert, 499 U.S. 315 (1991). Searles v. Agency of Transp.,
171 Vt. 562, 563 (2000) (mem.). Under this test, a court must first determine whether the
State employee’s act was discretionary in nature, involving “an element of judgment or
choice.” Lane, 174 Vt. at 223 (internal quotes omitted). If the act was discretionary, then
the court must determine whether the judgment is of the kind that the discretionary
function exception was designed to shield. In other words, the court must determine if the
judgment is “based on considerations of public policy.” Id. at 224 (internal quotes
omitted).
        Where the State has established a governmental policy, as expressed or implied by
statute, regulation, or agency guidelines, that allows a government agent to exercise
discretion, “it must be presumed that the agent’s acts are grounded in policy when
exercising that discretion.” Id. at 225. The plaintiff then has the burden to show that the
conduct in question is “‘not the kind of conduct that can be said to be grounded in the
policy of the regulatory regime.’” Searles, 171 Vt. at 563 (quoting Gaubert, 499 U.S. at
324-25).
        Here, Velander acted under express regulatory discretion. Section 4D.12 of the
MUTCD states that changing a traffic signal from the standard “stop-and-go” mode to
flashing mode, as Velander did here, “shall be permitted to be made at any time.”
Moreover, Part 6 of the MUTCD, which addresses temporary traffic control, is replete
with discretionary guidance. Section 6A.01, for example, provides that statutory authority
for implementing and enforcing road user regulations, parking controls, speed zoning,
and incident management in temporary traffic control situations “shall provide sufficient
flexibility in the application of temporary traffic control.” In the support for this standard,
the MUTCD states
              No one set of temporary traffic control devices can satisfy all
              conditions for a given project. At the same time, defining
              details that would be adequate to cover all applications is not
              practical. . . . The temporary traffic control selected for each
              situation depends on type of highway, road user conditions,
              duration of operation, physical constraints, and the nearness
              of the work space to road users.
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Finally, in addressing signal maintenance, § 4D.02 states that the responsible agency
should “[p]rovide for alternate operation of the traffic control signal during a period of
failure, using flashing mode or manual control, or manual traffic direction by proper
authorities as might be required by traffic volumes or congestion.” (Emphasis added).
        Given these MUTCD provisions, Velander’s conduct was discretionary and
presumptively policy-related, and Johnson bears the burden of providing facts to show
that the conduct was not grounded in the policy of the MUTCD. Johnson argues that the
MUTCD’s policies are narrowly confined to safety concerns, and Velander’s decisions to
conduct maintenance work at noon and to control traffic by merely switching the control
signal to a flashing mode were not within the MUTCD’s policy goals.
        Johnson’s definition of the underlying policies here is too narrow, however. The
Legislature adopted the MUTCD in a broad chapter of the Vermont Statutes Annotated
entitled “Operation of Vehicles.” This chapter addresses everything from stopping at a
railroad crossing, 23 V.S.A. § 1006, to driving under the influence, id. § 1200–1220a, to
appropriate rubber tires on trucks, id. § 1302. The obvious thrust of these varied
provisions is the promotion of motor vehicle safety, but as in all areas of safety
regulation, the statute addresses the balance between safe travel and other concerns, such
as efficiency and convenience for motorists. As the Vermont Supreme Court recognized
in Lane, for example, the decision of whether to close a highway to protect the public, id.
§ 1006a(a), is a “‘planning-level decision’ . . . within the ambit of the discretionary
function.” Lane, 174 Vt. at 225 (quoting Estate of Arrowwood v. State, 894 P.2d 642,
646 (Ala. 1995)). “‘[O]therwise, . . . state officials would be forced to close state
highways upon receiving notice of the first accident which resulted from adverse weather
and road conditions.’” Id. (quoting Arrowwood, 894 P.2d at 646). Moreover, the
Legislature has instructed the Transportation Agency to consider various issues in
carrying out its responsibilities. See, e.g., 19 V.S.A. § 10b(b) (stating that agency’s
transportation projects “shall be designed to provide safe and efficient transportation and
to promote economic opportunities for Vermonters and the best use of the state’s natural
resources”). Thus, the general regulatory scheme is one of balancing safety against other
concerns, not mere safety alone.
       The MUTCD itself reflects this balance between safety on the one hand and
efficient and convenient road travel on the other. See, e.g., MUTCD § 1A.01 (“The
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purpose of traffic control devices, as well as principles for their use, is to promote
highway safety and efficiency . . . .”); id. § 1A.09 (“The decision to use a particular
device at a particular location should be made on the basis of either an engineering study
or the application of engineering judgment.”); see also Searles, 171 Vt. at 564
(interpreting earlier version of MUTCD as discretionary).
       Finally, courts in other jurisdictions have also held that road construction and
maintenance regulations which balance safety with other concerns have broad policy
implications. See, e.g., Baum v. United States, 986 F.2d 716, 722 (4th Cir. 1993) (holding
that guardrail design judgment based on policies of resource allocation, as well as safety);
Aguehounde v. District of Columbia, 666 A.2d 443, 448 (D.C. 1995) (holding that
decisions regarding duration of traffic signals balances safety against interests of
“commerce and convenience”).
        Velander’s decisions with regard to the maintenance operation in this case were
within the policies of the general regulatory scheme regarding motor vehicles and within
the policies of the MUTCD in particular. Decisions regarding traffic signal maintenance
involve numerous policy considerations other than mere safety, including efficient
resource allocation in managing roads throughout Vermont and efficiently improving
traffic flow. To entertain her suit, the court would be invading the Legislature’s policy
decisions through tort law—something the discretionary function exception was designed
to prevent. Johnson has not met her burden of showing that Velander’s decision fell
outside of the State’s underlying policies for motor vehicles, and thus the court has no
jurisdiction to hear her tort claim.
        The court also notes that Johnson’s arguments regarding Velander’s subjective
intent, as evidenced in deposition testimony, is irrelevant. Gaubert states that the court’s
inquiry should focus not on a State decisionmaker’s subjective intent, “‘but on the nature
of the actions taken and on whether they are susceptible to policy analysis.’” Searles, 171
Vt. at 564 (quoting Gaubert, 499 U.S. at 325). Thus, the court looks to Velander’s
decisions alone and ascertains whether they were reasonably within the policies of the
regulatory scheme. For the reasons above, the court believes that they were. There
certainly are circumstances where judgment calls fall outside of the policies within a
discretionary regulatory scheme and one need not examine subjective intent in order to
make this determination. See, e.g., Gaubert, 499 U.S. at 325 n.7 (holding that
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hypothetical negligent traffic accident by government employee would not be within
policies of employee’s discretionary regulations); Gotha v. United States, 115 F.3d 176,
181 (3d Cir. 1997) (holding that failure to maintain path on which plaintiff was injured
did not implicate Navy’s policies of national security or military training). This case does
not present such circumstances.




                                         ORDER
      For the foregoing reasons, the Transportation Agency’s summary judgment
motion is GRANTED.


       Dated at Burlington, Vermont, January 31, 2005.




                                                           ________/s/________________
                                                              Richard W. Norton  Judge




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