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Messerschmidt v. City of Sioux City11/14/2002
must determine whether the particular challenged choice is of the type the legislature intended to insulate from liability. If the city's action involved a "high degree of discretion and judgment . . . in weighing alternatives and making choices with respect to public policy and planning," the city should be immune from liability. Id. (citing Hacking v. Town of Belmont, 736 A.2d 1229, 1232 (N.H. 1999)). We consider whether the challenged action involved policy-making decisions and significant judgment or merely the performance of routine duties.
The city has not met its burden to prove considerations based on social, economic, or political policy were involved in its decision to take the barricade down. We do not question or test the wisdom of the city's action, but rather the nature of the decision itself and the process used to reach it. See State v. Livengood by Livengood, 688 N.E.2d 189, 196 (Ind. Ct. App. 1997). Only those decisions based on political, social, or economic policy considerations which cannot be assessed by customary tort standards are immune. Doe, ___ N.W.2d at ___. The city's action in removing this particular barricade did not involve legislative or administrative decisions.
The decision to block a particular road was made in the interests of the safety of the people at the Big Parade. This is not comparable to a government decision to open a new road or highway. When a city decides whether to build a road, open a new street, or install highway guardrails, it may consider various social, economic, and political policies. For instance, the city may weigh competing needs of pedestrian safety, engineering concerns, commerce, traffic flow, and limited financial resources. See, e.g., Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 261 (Alaska 2000) (decision whether to install highway guardrails is immune); Dep't of Transp. v. Brown, 471 S.E.2d 849, 851 (Ga. 1996) (decision whether to build a road is immune, whereas decision to open an intersection and whether to open it without traffic lights is not immune); Metier v. Cooper Transp. Co., 378 N.W.2d 907, 910 (Iowa 1985) (decision to keep highway open during construction was immune, but once decision was made, negligence in carrying out the decision was not protected from liability); Butler v. State, 336 N.W.2d 416, 419-20 (Iowa 1983) (decisions as to when and where to construct a new freeway are immune); Baker v. Seal, 694 S.W.2d 948, 950 (Tenn. Ct. App. 1984) (decision whether to construct a road is immune from liability). Similarly, the city's removal of this particular barricade is not analogous to a city's decision to adopt highway safety standards that involved a deliberate assessment of the state's priorities. See Livengood by Livengood, 688 N.E.2d at 196 (adoption of highway safety standards implicates the type of policy-oriented deliberation process discretionary function immunity is designed to protect). The city does not assert any such policies were at the heart of its decision to take the barricade down.
There is no evidence that anyone of authority weighed any social, economic, or political policies before lifting the barricade. The record indicates Pottebaum's decision was nothing more than an ad hoc decision, tailored only for the particular facts as presented the night of the Big Parade. Matters such as when to lift a temporary road barricade do not require evaluation of policies but instead involved implementation of everyday decisions routinely made by the city. The city undertook to provide safe conditions for the festival-goers. In doing so, the city had a duty to use due care in providing safety and crowd control. Resolution of questions such as whether or not the city properly removed the barrica
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