The Go Ahead
Q: Last fall, I rode my bicycle to the entrance of a street. Before starting some repairs, the City was in the process of setting up warning cones, to close off both lanes of the road to vehicular traffic. I asked the supervisor if I could ride through. “Go ahead,” he said. I did, and struck a large pothole.
A: The courts have an old rule that government action, if discretionary, may not be a basis for tort liability. Even if you establish all the elements of a negligence claim, the City can avoid liability if it proves that saying ‘go ahead’ involved the exercise of discretionary authority and did not involve a special duty.
Your lawyer would like to say that the supervisor’s failure to warn you, and his waving you into a place of danger, were integrally related to the pothole repair undertaken by the City as the owner of the road, and took place not in a truly governmental capacity.
The City will reply that, at the time of your accident, the repair work had not begun. The supervisor was engaged in traffic control, which is a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers. Thus, the City would be entitled to governmental-function immunity – because the specific act or omission that caused your injuries was the supervisor’s discretionary decision to allow you to proceed, and not the City’s proprietary function in maintaining the roadway.
If I understand you correctly, when you encountered the supervisor, he was not at the entrance of the road to repair potholes; the repair was to take place later, and perhaps some distance away. Controlling traffic is a classic governmental function that brings with it governmental immunity. By all means, take these facts to an attorney, but don’t be surprised if he or she is concerned about governmental immunity.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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