Opinion
No. 3-626 / 02-1893
Filed September 24, 2003
Appeal from the Iowa District Court for Dubuque County, John Bauercamper, Judge.
Plaintiff appeals from the district court order denying her claim the defendant was negligent in designing, constructing, and maintaining a recreational path. AFFIRMED.
James Sawtelle and James Steinberg of Duncan, Green, Brown, Langeness Eckley, Des Moines, and Todd Locher of Locher Locher, Farley, for appellant.
Les Reddick of Kane, Norby Reddick, P.C., Dubuque, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
The plaintiff invites us to distinguish a recreational path used for hiking from a recreational path used for biking. We decline to do so, and conclude the district court properly found the defendant was immune from liability for its design, construction and maintenance of a recreational path.
The facts of this case are largely undisputed. On the morning of August 30, 1998, Patti Schmitz was bicycling along a path built by the City of Dubuque on a levee near the Mississippi River. As two joggers approached, Schmitz veered her bicycle off the path. When she attempted to return to the path, she lost control of her bicycle and fell, severely injuring her ankle. Schmitz later discovered the asphalt paved path was approximately an inch and a half higher than the shoulder in the area where she fell. She brought suit against the City of Dubuque, alleging it was negligent in designing, constructing, and maintaining the path. At trial, evidence was introduced showing the path was not constructed in accordance with the voluntary standards adopted by the American Association of State Highway and Transportation Officials (AASHTO). These recommendations were adopted after the path's construction in the early 1970s, but before the path was re-paved in 1991. Due to the dimensions of the levy, it would be impossible for the path to conform to the AASHTO standards.
At the close of trial, the district court dismissed Schmitz's petition, concluding the City is immune from liability under Iowa Code section 670.4(3) (1999). This section provides immunity against
[a]ny claim based upon an act or omission of an officer or employee of the municipality, . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the municipality or an officer or employee of the municipality, whether or not the discretion is abused.
Iowa Code § 670.4(3). We employ a two-step test for determining whether challenged actions fall within the discretionary function exception. Madden v. City of Eldridge, 661 N.W.2d 134, 138 (Iowa 2003). We first consider whether the action involved a matter of choice on the part of those acting for the government. Id. We then must determine whether the challenged judgment call is of the kind the discretionary function exception was designed to shield. Id.
In State v. Shelton, 644 N.W.2d 27, 30 (Iowa 2002), the supreme court concluded the State was immune from liability for the alleged negligent design, construction, and maintenance of a recreational hiking path. The court found the Department of Natural Resources' actions in allegedly wrongly locating trails, failing to maintain them, and failing to protect the public by placing guardrails or warning signs were wrong choices, not non-choices. See Shelton, 644 N.W.2d at 30. Accordingly, the first step of the discretionary function exception test was met. The court further concluded the second step, determining whether the type of decisions at issue were the type intended for protection, was met. Id. The court stated:
The substances used in forming the trails, the placement of the trails, the omission of guards or handrails, placement or omission of warning signs, and trail maintenance, were all matters for park professionals. These administrative choices, driven as they were by economics and aesthetics, are clearly matters into which courts in general and judges in particular are ill equipped to intrude.
Id.
We likewise conclude the City's actions are entitled to protection under the discretionary function exception. The facts of this case are substantially similar to the facts in Shelton. The City's decision to build a recreational path on the levee was clearly a matter of choice, as were its decisions regarding the width of the path, the grading of the slope and the failure to place signs warning of the "drop off." We also conclude the City's judgment in designing, constructing, and maintaining the path was the kind of judgment the discretionary function exception was designed to shield. Because the City was immune from liability for these decisions, we affirm the district court's order denying Schmitz's petition.