This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Independent School District 279,
Osseo Area Schools,
Hennepin County District Court
File No. 982106
Stephen W. Cooper, Stacey R. Everson, Cooper Law Firm, Chartered, 800 Ceresota Building, 155 Fifth Avenue South, Minneapolis, MN 55401 (for respondent)
John J. McDonald, Jr., Richard L. Pemberton, Jr., Alan K. Bassin, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Willis, Judge.
Independent School District No. 279 challenges the denial of its motion for summary judgment on immunity grounds. We affirm.
In 1996, appellant Independent School District No. 279, hired Andre Thaddies to be an administrative assistant at Osseo High School. During the 1996-1997 academic year, respondent Heather Shedivy was a senior at the high school.
As an administrative assistant, Thaddies’s main duties were dealing with disciplinary problems of students whose last names began with A through L and supervising students in common areas during school hours. Thaddies also had some discretion to assist students with minor personal problems.
Before Thaddies began work at the high school, he received a new-employee orientation. The district informed Thaddies about its policy prohibiting sexual harassment. Thaddies received and reviewed the student handbook, which set forth the sexual harassment policy and described the procedure for reporting sexual harassment incidents. Thaddies also received training regarding appropriate and inappropriate conduct with students. Thaddies was aware of the district’s “zero tolerance” policy with respect to sexual harassment.
Shortly after he began working as an administrative assistant, Thaddies met Shedivy. Shedivy claims that she and Thaddies developed a relationship on both a professional and a personal basis. Although Shedivy was not a student assigned to Thaddies, she claims that she visited Thaddies in his office as many as 20 times between the start of the school year and November 1996. According to Shedivy, the meetings involved discussions of her personal problems at home and at school. Thaddies also initiated some conversations regarding his relationship with his wife.
Shedivy claims that on the evening of November 14, 1996, Thaddies took her to his home. While at his home, Thaddies gave Shedivy several alcoholic beverages. Shedivy became intoxicated and decided to spend the night at Thaddies’s home. She went to sleep and awoke to find Thaddies touching her breasts and buttocks. Shedivy claims that Thaddies forced her to perform oral sex. Thaddies denies most of the allegations against him.
A few days after the alleged incident, Shedivy told a friend what had happened. The friend confronted Thaddies about the allegations and also told the school district. The district immediately suspended Thaddies. Thaddies resigned a short time later. The local police investigated the allegations, but Thaddies was not charged with any sexual misconduct. Thaddies pleaded guilty to providing alcohol to a minor.
Shedivy filed a summons and complaint naming Thaddies and the school district as defendants. Shedivy asserted claims of (1) sexual harassment and aiding and abetting sexual harassment, (2) assault and battery and aiding and abetting assault and battery, (3) intentional and negligent infliction of emotional distress, (4) negligence, (5) negligent hiring, and (6) negligent supervision, training and retention. In its answer, the school district claimed, among other defenses, immunity from suit.
The school district moved for summary judgment arguing that Shedivy could not substantively establish her claims. In a reply brief, the school district also argued that it was immune from suit. The district court granted partial summary judgment dismissing Shedivy’s claims against the school district for aiding and abetting sexual harassment and negligent hiring, retention and training. The court did not address the district’s immunity claim because it was not timely raised.
The school district moved for consideration of the immunity issue. The district court then dismissed the negligent supervision claim on the basis of discretionary immunity and denied the school district’s motion to dismiss the remaining claims of negligence, assault and battery, and negligent and intentional infliction of emotional distress.
D E C I S I O N
Shedivy contends that the school district’s appeal is improper and untimely. She argues that the school district could have appealed the first order denying summary judgment but did not do so within the prescribed time period. Shedivy also contends that the school district cannot appeal from the second order.
An order denying summary judgment is not ordinarily appealable. Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998). By order of the special term panel, this court struck the school district’s challenge to the first order, which denied summary judgment on the merits. As Shedivy notes, a motion for reconsideration does not extend the time to appeal an underlying decision. Limongelli v. GAN Nat’l Ins. Co., 590 N.W.2d 167, 168 (Minn. App. 1999). But because this appeal is not taken from the first order, the time to appeal the initial order denying summary judgment is not at issue.
The district court refused to consider the school district’s assertion of immunity when it issued the initial order denying summary judgment, because the claim was argued for the first time in a reply brief. But the school district’s later motion, which sought summary judgment based on the assertion of immunity, resulted in an appealable order. See Gleason, 582 N.W.2d at 218. The district court agreed to entertain the later motion, the rules do not preclude a party from bringing successive motions on different grounds, and this appeal was timely taken from the November 17 order denying summary judgment on the school district’s assertion of immunity.
“The application of immunity is a question of law, which the court reviews de novo.” Id. at 219 (Minn. 1998) (citation omitted). In reviewing a denial of summary judgment based on a claim of immunity, this court presumes the truth of the facts alleged by the nonmoving party. Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997). The party asserting a defense of immunity has the burden of demonstrating facts showing it is entitled to immunity. Gerber v. Neveaux, 578 N.W.2d 399, 402 (Minn. App. 1998), review denied (Minn. July 16, 1998).
Subject to certain statutory limitations,
every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.
Minn. Stat. § 466.02 (1998). A school district is a municipality. Minn. Stat. § 466.01, subd. 1 (Supp. 1999). The general rule of liability does not apply to
[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.
Minn. Stat. § 466.03, subd. 6 (1998).
The purpose of statutory immunity is “to preserve the separation of powers by insulating executive and legislative policy decisions from judicial review through tort actions.” Pursuant to statutory immunity, a [municipality’s] conduct is protected only when the [municipality] produces evidence showing that the conduct at issue was of a policy-making nature involving social, political, or economic considerations. In determining whether statutory immunity applies, the court must decide whether the conduct at issue involved a balancing of policy objectives.
Fisher v. County of Rock, 596 N.W.2d 646, 652 (Minn. 1999) (citations omitted) (quoting Rico v. State, 472 N.W.2d 100, 104 (Minn. 1991)).
Using this analytical framework the supreme court has distinguished between planning level conduct, which is protected by immunity, and operational level conduct, which is not protected. Id.
Planning level decisions involve questions of public policy-- “the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy.” Operational level decisions, on the other hand, concern the day-to-day operation of government.
Id. (citation omitted) (quoting Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988)).
Discretionary immunity normally does not extend to the implementation of policy; although implementation usually requires professional or scientific judgments, it does not require the balancing of policy factors.
Abo El Ela v. State, 468 N.W.2d 580, 582 (Minn. App. 1991) (citation omitted).
[u]nder some circumstances an implementation decision may be protected. First, the implementation itself may involve policymaking. Second, immunizing the implementation of the policy may be essential to avoid interference with government policymaking.
Id. (citation omitted).
The school district argues that it is entitled to immunity because Shedivy’s allegations are based on criticisms of the district’s policies and essentially ask the court to reexamine the policy considerations that entered into the district’s policies. Although many of Shedivy’s arguments in the district court and on appeal do nothing more than criticize the district’s policies, we do not agree that the district is entitled to immunity on all of her claims.
There are two potential bases of liability for the school district, vicarious liability for Thaddies’s actions and direct liability for its own actions.
1. Vicarious liability
Under the doctrine of respondeat superior, an employer is vicariously liable for the torts its employees commit while acting within the course and scope of their employment. Fahrendorff ex rel. Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999). Liability under respondeat superior is not based on any fault of the employer, but is instead based on a policy determination that liability for acts committed within the scope of employment should be allocated to the employer. Id.
The school district argues that because the inquiry as to whether vicarious liability applies necessarily implicates the district’s policy decisions, it is entitled to discretionary immunity against Shedivy’s vicarious liability claims. We disagree. For an employer to be held vicariously liable for the acts of its employee (1) the conduct must be related to the employee’s work duties, and (2) the conduct must have occurred within the employment-related limits of time and place. Lange v. National Biscuit Co., 297 Minn. 399, 404, 211 N.W.2d 783, 786 (1973). The conduct must also be foreseeable. P.L. v. Aubert, 545 N.W.2d 666, 668 (Minn. 1996).
Although it might be necessary to determine what some of the school district’s policies are in order to evaluate Shedivy’s vicarious liability claims, it is possible to determine what policies the district has adopted without re-examining the district’s balancing of policy objectives when it adopted the policies. The district has not demonstrated that the evaluation of Shedivy’s vicarious liability claims requires an evaluation of the validity of its policies.
The school district next argues that this court recently held that discretionary immunity barred similar vicarious liability claims in Doe v. Park Ctr. High Sch., 592 N.W.2d 131 (Minn. App. 1999). The district misreads the decision. In Doe, a high school student alleged that she had a sexual relationship with a teacher. Id. at 133. Among other claims, the student contended that the school district was vicariously liable for the teacher’s actions. Id. The district court granted the school district summary judgment on the vicarious liability claim on both immunity and substantive grounds. Id. at 134. The student did not appeal the court’s ruling on vicarious liability. Id. Because vicarious liability was not an issue on appeal and was not discussed by the court, the decision provides no assistance on this issue.
Finally, the school district argues that because negligent supervision claims, which can be barred by immunity, are imposed under a theory of respondeat superior, other vicarious liability claims should also be subject to immunity. We disagree. This court has noted:
Negligent supervision derives from the doctrine of respondeat superior so the claimant must prove that the employee’s actions occurred within the scope of employment in order to succeed on this claim.
M.L. v. Magnuson, 531 N.W.2d 849, 858 (Minn. App. 1995) (emphasis added) (citations omitted), review denied (Minn. July 20, 1995). A claim of negligent supervision, however, is different from the vicarious liability claim in this case. To prevail on a negligent supervision claim, the plaintiff must establish that the employer failed to exercise ordinary care in supervising the employee. Oslin v. State, 543 N.W.2d 408, 415 (Minn. App. 1996), review denied (Minn. Apr. 1, 1996). In other words, liability for negligent supervision is predicated on some fault on the part of the employer. That claim of fault could implicate the employer’s policy decisions, which could make the immunity defense applicable. Because the vicarious liability claims at issue in this case are not based on any fault of the school district, this rationale for applying immunity is not present.
2. Negligence/Direct Liability
One of Shedivy’s arguments is that the school district’s policies were negligently implemented because the school administration did not follow its policies. When implementation does not itself involve policymaking, the negligent implementation of a policy is not protected by discretionary immunity. Abo El Ela, at 582.
There is evidence in the record that the school district had a policy that assigned specific students to administrative assistants and a policy that administrative assistants were generally not to fraternize with students. There is also evidence that the district had a policy for determining whether a student was spending an excessive amount of time with a staff member. Although Shedivy was not assigned to Thaddies under the assignment policy, she claims that she met with him in his office up to 20 times in just a few months of school, and there is evidence that her visits would have been observed by a number of staff members. Viewing the evidence in the light most favorable to Shedivy, there is a genuine fact issue whether the school district had policies that were not followed.
The district court did not err when it concluded that the school district did not meet its burden of demonstrating facts that show it is entitled to immunity.
The record contains conflicting testimony about what the school district’s policies were. The school principal and an assistant superintendent expressed differing opinions about what the district policy was. The principal thought that Thaddies was allowed to help students not assigned to him, while the assistant superintendent stated that Thaddies was not to assist any students outside of the portion of the alphabet to which he was assigned. They also disagreed about the permissible extent of fraternization between students and administrative assistants.