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April 19, 2006 Page 2 At the Council meeting, there was discussion on this item, and questions about whether and to what extent the Council would want to be involved in traffic control device decisions. The undersigned indicated during the Council discussion that he had concerns about liability implications of the Council making the decisions on traffic control device issues. As a result thereof, the City Attorney was directed to prepare a written opinion dealing with such liability concerns. DISCUSSION Long before Minnesota courts withdrew their recognition of the judicially created defense of sovereign immunity with respect to various governmental units, including municipalities, the common law had imposed upon municipalities the duty to exercise reasonable care to maintain reasonably safe streets. This was a common law rule that could and would extend to such things as guard rails and signage, in short, whatever was necessary to make the road reasonably safe for the public use. See e•g•, Johnson v. County of Nicollet, 387 N.W.2d 209 (Minn. App. 1986); Hansen v. City of St. Paul, 214 N.W.2d 346 (Minn. 1974); Doyle v. City of Koseville, 524 N.W.Id 461 (Minn. 19994). Whenever one is talking about the duty to use reasonable care in regards to conducting oneself in a certain way, one is talking about negligence. A negligence claim has four basic elements: duty, breach of duty, causation, and damages. Over the years there have been a number of cases where motorists have filed negligence suits against municipal government for some claimed failure to maintain the roadway. This could relate to the placement of guardrails, failing to post warning signs after a road had been worked on, failing to fill pot holes, failing to post signs indicating a change in the width of highway shoulders, etc. Many of these cases are decided on grounds of immunity, an issue that will be addressed herein. But in all of these cases, one has to first decide what the standard of care is. In other words, in making a particular determination, what is the standard upon which we will judge whether or not the governmental entity was negligent and therefore breached a duty. Often the standard of care is determined by statute and/or the usual standard of care in the particular field or endeavor. So, for instance, in McEwen v. Burlin�ton R.R. Co., 494 N.W.2d 313 (Minn. App. 1993), one of the issues related to the State's failure to timely repaint pavement markings after a spot overlay project on the road was completed. The plaintiff pointed to the Minnesota Manual on Uniform Traffic Control Devices as a means of determining what the standard was. In that case, the issue of negligence was not reached because it was determined that discretionary immunity applied. Interestingly, in that case a concurring/and dissenting in part decision was filed whereby the dissenting judge felt that immunity should not have applied to the negligence claim relating to the pavement markings. As another example, in Benson v. Itasca County, 2003 WL 21007152, the plaintiff claimed that the state and county were negligent in the maintenance and placement of signs on