Impact of the Discretionary Function Exceptions on Tort Liability of State Highway Departments

State highway departments and transportation agencies have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. In no area of highway law is this more true than in the area of tort law which has had a severe economic impact on the operations of highway/transportation programs. This paper continues NCHRP policy of keeping the departments up to date on tort liability. It is a new study to be published in Volume 4, Selected Studies in Highway Law. The statutory discretionary function exception first made its appearance in the Federal Tort Claims Act of 1946. Since that time more than half the States have, by statute of judicial decree, adopted some form of discretionary immunity. This paper traces the development of the discretionary function exception at the state level through an examination of applicable State statutes and court decisions. The thrust of the paper is to determine the applicability of the exception to the activities of State highway departments. Because the discretionary function exception, when pleaded and proved, operates as a retention of sovereign immunity and hence a complete bar to recovery, it is of great importance to highway lawyers and all others concerned with the tort liability of the State.