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IN THE COURT OF APPEALS OF IOWA No. 6-066 / 05-0224 Filed May 10, 2006

THOMAS J. WALTERS, Plaintiff-Appellant, vs. DANETTE M. BOCKERT, HEATHER BOCKERT, a Minor, And THE STATE OF IOWA, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Charles L. Smith, III, Judge.

The plaintiff appeals from the order granting summary judgment and dismissing their action against the State of Iowa for its alleged negligence in the maintenance of a roadway. AFFIRMED.

G. William Smits of Gross & Welch, P.C. Omaha, for appellant.

Thomas J. Miller, Attorney General, Robin G. Formaker and Richard E. Mull, Assistant Attorneys General, and Matthew D. Wilber, County Attorney, for appellee-State.

Heard by Zimmer, P.J., and Miller and Hecht, JJ.

2 HECHT, J. Thomas Walters filed suit alleging negligence against Heather Bockert, as driver, and Roger and Danette Bockert, as owners, of a vehicle that collided with Walters's vehicle. Walters subsequently amended his petition to add a claim against the State of Iowa alleging the negligence of the State's employees in the maintenance of the shoulder of the highway was a substantial factor in causing the collision. The district court granted summary judgment in favor of the State. Walters appeals from the summary judgment ruling. We affirm. Background Facts and Proceedings. A reasonable fact finder could find the following facts from the summary judgment record when that record is viewed in the light most favorable to Walters. On October 15, 2001, the Bockert and Walters vehicles were both traveling westbound on a four-lane, divided highway. The passenger side of the Bockert vehicle encountered the shoulder of the highway. As she attempted to return to the roadway, Heather Bockert lost control of the vehicle she was operating and it collided with the Walters vehicle which veered into the ditch and overturned. Walters suffered a variety of severe injuries including multiple

fractures, which eventually required the amputation of a leg. Heather Bockert and her father Roger returned to the accident scene on October 16, 2001. While there, they observed a rut or depression in the shoulder of the road, with a "scuff" coming out of it. Heather described the rut as about four to six inches deep, eight to twelve inches wide, and between eight and fourteen inches in length. Roger gave a similar description, except that he

3 believed the rut was "a couple of yards [long] at most." Heather and Roger surmised the rut caused Heather to lose control just before the collision occurred. The State filed a motion for summary judgment asserting (1) it had no notice of the alleged defect in the shoulder of the roadway prior to the crash, (2) absence of a genuine issue of material fact suggesting the alleged shoulder defect was a proximate cause of the collision, (3) the State's immunity pursuant to Iowa Code section 669.14(1) (2001), and (4) the district court lacked subject matter jurisdiction as a consequence of the inadequacy of Walters's state appeal board claim. The district court concluded "the State's decisions concerning the shoulder at the site of the accident fall within the umbrella of discretionary function immunity," and granted summary judgment in favor of the State. Summary Judgment. We review rulings on summary judgment for correction of errors of law. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005). Summary

judgment is appropriate under Iowa Rule of Civil Procedure 1.981 only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. We examine the record before the district court in the light most favorable to the party resisting the motion to determine whether any genuine issue of material fact exists and whether that court correctly applied the law. Wernimont v. Wernimont, 686 N.W.2d 186, 189 (Iowa 2004). If the conflict in the record concerns only the legal consequences flowing from undisputed facts, entry of summary judgment is proper. Delaney v.

4 Int'l Union UAW Local No. 94 of John Deere Mfg. Co., 675 N.W.2d 832, 834 (Iowa 2004). Discretionary Function Immunity. Iowa Code section 669.14(1) provides immunity from [a]ny claim 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 officer or employee of the state, whether or not the discretion is abused. A panel of this court applied this statute in Davison v. State, 671 N.W.2d 519 (Iowa Ct. App. 2003). In that case, the plaintiffs, who had been injured in an auto accident, claimed the State was negligent (1) in failing to perform proper inspections of the highway, (2) in failing to adequately maintain and repair the highway, and (3) in failing to take reasonable measures to warn motorists of the dangerous conditions created by a badly deteriorated roadway. 1 Davidson, 671 N.W.2d. at 520. We affirmed the district court's conclusion that the State was immune from liability for those claims, and concluded "the [DOT's] decisions on how to inspect and maintain the State's road system involves weighing alternatives and making choices with respect to public policy and planning." Id. at 521. Walters contends, however, that Davison "does not stand for the

proposition that once maintenance procedures have been established, any act or decision in implementing them, or failure to follow them, at the operational level is also immune." However, the planning vs. operational distinction that formerly controlled our discretionary function analysis no longer prevails. Goodman v. City of LeClaire, 587 N.W.2d 232, 238 (Iowa 1998).
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The plaintiffs claimed the "badly deteriorated roadway" caused a wagon to detach from the vehicle pulling it, which in turn sent the wagon into the path of their vehicle.

5 The State is entitled to immunity in this case only if it satisfies a two-part test as set forth in Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S. Ct. 1954, 1958-59, 100 L. Ed. 2d 531, 540-41 (1988). First, the State must show there was an element of judgment or discretion involved in the State's decision. Graber v. City of Ankeny, 656 N.W.2d 157, 161 (Iowa 2003). If we find the State did not have discretion in the execution of the particular function, immunity is not available. If, however, we find the State exercised judgment in the exercise of the particular function, then we must determine whether that judgment is the type that the legislature intended to shield from liability when section 669.14(1) was adopted. Id. The general rule is clear: liability is the rule and immunity the exception. exception. In his petition, Walters alleges the crash occurred "because of the Iowa Department of Transportation's improper maintenance of the highway shoulder in allowing the depression to exist and the failure of the Iowa Department of Transportation to repair and maintain the shoulder of the road." (Emphasis Id Thus, we will narrowly construe the discretionary function

supplied). Walters first asserts the negligent failure to repair and maintain the shoulder of the road did not implicate a protected discretionary function because the DOT had promulgated and violated its own maintenance standard. That standard, designated as "function code 634" provides: Work to correct drop off at the edge of the slab on unpaved shoulders (edge ruts) should be planned when the drop off reaches 1 to 1

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