Daily Decisions: Discretionary Immunity for Highway Safety

In Avellandeda v. State of Washington (Division 2, March 27, 2012), the Court of Appeals held that the State was entitled for discretionary immunity in connection with its decision whether (and when) to install a barrier on the State Route 512 median.  The Department of Transportation (“DOT”) had set a low priority for the installation of a barrier at the median.  With no barrier, the plaintiffs were seriously injured when two cars crossed the median, with one car striking the plaintiffs.  They then sued the State.

Under the test set forth in Evangelical United Brethren Church of Adna v. State, 67 Wn.2d 246, 407 P.2d 440 (1965), the Supreme Court noted that “it is not a tort for government to govern.”  Accordingly, the Supreme Court announced a four-factor test to determine when discretionary governmental immunity applies:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

Applying this test, the Court concluded that the DOT’s prioritization of the median barrier satisfied the Evangelical test.  The State was therefore entitled to discretionary immunity.  Accordingly, the Court of Appeals affirmed the trial court’s grant of summary judgment in favor of the state.

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One thought on “Daily Decisions: Discretionary Immunity for Highway Safety

  1. Pingback: Monday Morning Mash-up! | Ziff Blog

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