(dissenting).
I dissent. I believe the district court’s interpretation of the immunizing provisions of section 668.10(1) was clearly correct and follows the meaning which this court attributed to that statute in Hershberger v. Buena Vista County, 391 N.W.2d 217, 220 (Iowa 1986).
In Hershberger, we recognized that the immunizing provisions of this statute only apply to a “failure to place, erect, or install a [regulatory sign or device].” In considering that aspect of the statutory language, we stated:
The allegations of paragraph 5(b) of the petition [involving the placement of a right-turn sign where the road turned left] do not involve an alleged failure to place, erect, or install a traffic control device. Rather, these allegations suggest that a warning sign was installed in a negligent manner. Because the provisions of section 668.10(1) do not insulate the county from liability for negligence of this type, the district court erred in removing these issues from the case pri- or to trial.
Id.
The majority now suggests that it is incongruous to insulate the public body from liability for a failure to provide adequate warning signs for road hazards and yet hold the public body liable for the placement of signs which are deficient for the purpose to be served. This approach may be described as the “any sign is better than no sign” theory. I submit that this theory does not stand up when tested by common experience. It is an inescapable conclusion that members of the motoring public become conditioned to rely on traffic control devices. A very significant feature of such reliance is that a misleading sign can, indeed, constitute a greater hazard than no sign at all.
To avoid the clear implications of Hersh-berger, the majority attempts to distinguish that case on its facts. The opinion suggests that, unlike Hershberger, the deficiency in the warning sign employed by the county in the present case is more properly characterized as a failure to warn than as an affirmative misdirection. I do not believe the facts before the court on the summary judgment motion support that distinction. A finder of fact could determine that the sign in question had not been posted a sufficient distance in advance of the approach to the curve. Because curve warning signs are routinely placed at a prescribed minimum distance in advance of an approaching curve, motorists have become conditioned to rely on such placement in adjusting their road speed. A misplacement of the sign at less than the prescribed minimum distance can therefore be misleading and can constitute an affirmative misdirection as to the nature of the approaching hazard.
I would affirm the order of the district court.