UDOT’s use of orange barrels during construction rather than concrete barriers was not a discretionary function

Johnson v. Utah Dep’t of Trans., 2006 UT 15

Johnson sued UDOT for injuries resulting from an auto accident in a construction zone on I-15. The accident occurred, in part, because UDOT used orange barrels to mark the construction zone rather than concrete barriers.

Both parties agreed that UDOT’s action qualified for blanket immunity under the Governmental Immunity Act but that section 63-30-8 waived that immunity. So the only question was whether UDOT’s action qualified for the "discretionary function exception" to the immunity waiver. That exception applies when "the injury arises out of, in connection with, or results from . . . the exercise or performance or the failure to exercise or perform a discretionary function." The supreme court held that UDOT's decision was not a discretionary function.

Using the Little test, the court determined that UDOT had not shown that it’s decision was a policy decision essential to completion of the construction project. Rather, it was the unilateral action of a single employee without analysis or deliberation. It thus constituted a operational function, not a discretionary function.