 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Doe v. Cedar Rapids Community School District9/5/2002
540-41). If the School's conduct cannot be "appropriately the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect." Id. Nearly all challenged conduct can be characterized as the exercise of some judgment or discretion as " udgment is exercised in almost every human endeavor." Kansas State Bank & Trust Co. v. Specialized Transp. Servs. Inc., 819 P.2d 587, 600 (Kan. 1991) (quoting Downs v. United States, 522 F.2d 990, 995 (6th Cir. 1975)).
The School appears to argue it is only liable for decisions made contrary to policies that would not allow choice. This bright line analysis suggested by the School is precisely what we moved away from when we abandoned the planning/operational test. Goodman, 587 N.W.2d at 236-38. As such, we will again apply the Berkovitz test which provides an analytical framework for even the most uncertain cases. We now turn to this analysis.
The first prong of the Berkovitz test is easily satisfied in this case. When the School hired Lindsey it exercised its professional judgment. It was faced with the decision to either hire Lindsey or not hire Lindsey. When it retained Lindsey after a series of allegations of misconduct, the School further made this decision based on choice. Finally, when the School supervised Lindsey as a result of the misconduct, it exercised judgment. Therefore, the first prong of the discretionary function immunity is satisfied.
The School seems to argue that once we find it exercised discretion in hiring, retaining, and supervising Lindsey its actions are immune from suit. Not all discretionary acts involving skill or judgment are immune simply because the legislature has empowered the state or its agents to act. See Ex parte Cranman, 792 So. 2d 392, 404 (Ala. 2000). The School clearly misapprehends the test we articulated in Goodman.
Though the School exercised some discretion in this matter, that does not automatically guarantee immunity. Rather, once we decide an element of discretion was involved, we then must determine whether that discretion was of the nature the legislature intended to insulate from liability. We now turn to the second part of the test and consider whether the nature of the challenged act is entitled to immunity.
2. Is the challenged conduct of the nature the legislature intended to shield from liability?
In moving away from the more strict planning/operational dichotomy in Goodman, we did not expand the scope of the governmental function immunity to include all decisions based on policy. Rather, we must consider whether the challenged action was "grounded in social, economic, and political policy." City of Cedar Falls, 617 N.W.2d at 19 (quoting Berkovitz, 486 U.S. at 536-37, 108 S. Ct. at 1959, 100 L. Ed. 2d at 541); see, e.g., Bustamente v. Jefferson Parish Inspection & Code Enforcement, 683 So. 2d 822 (La. Ct. App. 1996) (dismissing building code violations is immune); Martin County v. Indiantown Enters., Inc., 658 So. 2d 1144 (Fla. Dis. Ct. App. 1995) (county officials' oral representations regarding an informal extension of a demolition order is immune). The shield applies if the School's challenged conduct involved considerations of public policy. Id. The more the School's judgment involved policy-making the more it is to be recognized as immune from judicial process. See Kansas State Bank & Trust Co., 819 P.2d at 600.
If the challenged conduct involved a "high degree of discretion and judgment . . . in weighing alternatives and making choices with respect to public policy and planning," the School should be immune from liability. Hacking v. Town of Belmont, 736 A.2d
Page 1 2 3 4 5 6 7 Iowa Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|