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Laney v. Fairview City8/9/2002
safe.
Having answered all four parts of the Little test in the affirmative, we conclude that the challenged decisions or omissions were discretionary functions. Our review of other Utah case law also supports the conclusion that the City's decisions not to increase the height of the power lines, not to insulate the lines, and not to provide warning signs, are discretionary functions entitled to immunity under the Act.
First, the City's decisions not to raise, insulate, or place warnings on its power lines are not operational decisions involving routine, everyday matters. Rather, those are broad policy decisions requiring evaluation of broad policy factors which take place at the policy-making level, and such decisions are generally entitled to discretionary function immunity. See, e.g., Bigelow v. Ingersoll, 618 P.2d 50, 53 (Utah 1980) (stating that "discretionary function [immunity] under ยง 63-30-10(1) is confined to those decisions and acts occurring at the 'basic policy making level,' and is not extended to those acts and decisions taking place at the operational level, or, in other words '. . . those which concern routine, everyday matters, not requiring evaluation of broad policy factors'" (quoting Frank v. State, 613 P.2d 517, 520 (Utah 1980) (quoting Carroll v. State Rd. Comm'n, 27 Utah 2d 384, 388, 496 P.2d 888, 891))); Frank, 613 P.2d at 520 (indicating that even though almost all acts require some degree of discretion, the discretionary function exception immunizes governmental entities from suit for "those decisions and acts occurring at the 'basic policy-making level,' and not extended to those acts and decisions taking place at the operational level, or, in other words,' . . . those which concern routine, everyday matters, not requiring evaluation of broad policy factors'") (quoting Carroll, 27 Utah 2d at 389, 496 P.2d at 891); Carroll, 27 Utah 2d at 389-90, 496 P.2d at 891-92 (finding that "the decision of the road supervisor to use berms [to prevent accidents on a roadway] was not a basic policy decision essential to the realization or accomplishment of some basic governmental policy, program, or objective [because] his decision did not require the exercise of basic policy evaluation, judgment, and expertise on the part of the Road Commission [and because] is determination may properly be characterized as one at the operational level of decision making"); see also, Evangelical United Brethren Church, 407 P.2d at 444 (stating that "the distinction between discretionary and non-discretionary administrative acts, omissions, or decisions may well lie in the determination of whether such was done or made at the planning or operational level") (citing Dalehite v. United States, 346 U.S. 15 (1953)).
Second, our conclusion that the City's decision regarding its power lines is entitled to discretionary function immunity is consistent with cases that have generally held that decisions balancing the need for safety improvements against limited governmental funding are entitled to discretionary function immunity. See Keegan v. State, 896 P.2d at 624-26 (applying the four part Little test and concluding that the Utah Department of Transportation's decision not to raise a concrete traffic barrier was a discretionary function because it "resulted from a considered weighing of the costs and benefits of certain safety and construction policies and which involved the exercise of UDOT's judgment and discretion"); Velasquez v. Union Pac. R.R., 24 Utah 2d 217, 218-19, 469 P.2d 5, 6 (1970) (finding the Utah Public Service Commission was immune from suit for its (1) failure to require the railroad to construct and maintain safety devices and (2) failure to establish a program to discove
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