This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-846

 

Lydia S. Fawzy, individually and
as trustee for the heir and next
of kin of Samir Nawar,
Appellant,

vs.

Daniel V. Flack,
Defendant,
William M. Flack,
Respondent,
Metropolitan Airports Commission,
Respondent,
Metropolitan Council Transit Oper
ations,

Defendant.

 

Filed November 21, 2000

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 994915

 

 

Scott B. Lundquist, Lundquist Law Offices, 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN 55415 (for appellant)

 

J. Mark Catron, Hansen, Dordell, Bradt, Odlaug & Bradt, Suite 250, 3900 Northwoods Drive, St. Paul, MN 55112 (for defendant)

 

Eric Hageman, Hartner, Bennett & Schupp, P.A., Suite 2200, 120 South Sixth Street, Minneapolis, MN 55402 (for respondent Metropolitan Airports Commission)

 

            Considered and decided by Stoneburner, Presiding Judge, Forsberg, Judge,* and Holtan, Judge.**

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

Appellant appeals from the district court’s grant of summary judgment to the Metropolitan Airports Commission (MAC) on the basis of statutory immunity and lack of proximate cause.  Because we agree that: (1) MAC’s decision not to install a pedestrian bridge is protected by statutory immunity; (2) the failure to post signs is protected by vicarious official immunity; and (3) there is no evidence of proximate cause, we affirm.

D E C I S I O N

In 1985, MAC began a project to redesign the airport roadways, including Glumack Drive.  Because of construction, MAC eliminated a bus stop at the post office located along a service road on the east side of Glumack Drive in 1995.  On April 13, 1997, Samir Nawar was struck by a vehicle and fatally injured.  Nawar was crossing Glumack Drive from the bus stop on a service road west of Glumack Drive to the post office.  Appellant Lydia S. Fawzy, individually and as trustee for Nawar’s heirs, brought this wrongful death claim against MAC, alleging MAC was negligent in failing to provide safe pedestrian access across Glumack Drive to the post office.  The district court granted MAC’s motion for summary judgment, holding that statutory immunity barred the claim and that appellant failed to establish proximate cause.  The district court certified the judgment pursuant to Minn. R. Civ. P. 54.02 for immediate appeal.

On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 

1.  Statutory Immunity

Whether statutory immunity applies is a question of law for an appellate court to review without deference to the district court.  Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).

Public corporations or political subdivisions of the state are generally liable for their torts, except when a “claim [is] based upon the performance or the failure to exercise or perform a discretionary function or duty * * *.”  See Minn. Stat. §§ 466.01, subd. 1, .02, .03, subd. 6 (1998).  MAC is a public corporation and may therefore assert statutory immunity.  See Minn. Stat. § 473.603, subd. 1 (1998). 

            Courts narrowly interpret statutory immunity.  Angell v. Hennepin County Reg’l Rail Auth., 578 N.W.2d 343, 346 (Minn. 1998).  Statutory immunity protects planning level conduct, which is the process of evaluating factors such as the financial, political, economic, and social effects of public policy.  Watson by Hanson v. Metropolitan Transit Comm’n, 553 N.W.2d 406, 412-13 (Minn. 1996); Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988).  Consequential conduct in carrying out the policy may be protected if it involves the balancing of public policy considerations.  Pletan v. Gaines, 494 N.W.2d 38, 44 (Minn. 1992).  A municipality may balance its limited financial resources with safety considerations.  Riedel v. Goodwin, 574 N.W.2d 753, 756-57 (Minn. App. 1998) (holding that decision not to mow sight triangle because it was low priority was a protected policy decision), review denied (Minn. Apr. 30, 1998).

Statutory immunity does not protect operational conduct or the implementation of policy.  Holmquist, 425 N.W.2dat 234.  An operational decision is a day-to-day use of scientific or professional judgment that applies a previously prescribed policy to a fact situation.  Id.  Nevertheless, professional judgment aided in part by policy is protected planning level conduct.  Fisher v. County of Rock, 596 N.W.2d 646, 652 (Minn. 1999).

The first step is to identify the challenged conduct.  Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn. 2000).  The district court addressed MAC’s failure to install a pedestrian bridge across Glumack Drive to the post office. 

MAC sought to improve traffic flow and deter pedestrian use of Glumack Drive.  In the four stages of planning, MAC balanced the extraordinary cost of building a pedestrian walkway (in excess of $100,000) against the low safety risks created by minimal pedestrian use of buildings along the service road.[1]  From early in the planning process, the decision not to build a pedestrian walkway was integral to the policy of

deterring pedestrian traffic in the area.  The district court correctly concluded that MAC’s decision not to build a pedestrian walkway is a planning decision protected by statutory immunity.

2.  Vicarious Official Immunity

            In her brief and at oral argument, Fawzy clarified that the specific act challenged is MAC’s failure, after it eliminated the bus stop at the post office, to place signs directing pedestrians to a pedestrian underpass under Glumack Drive.

            An engineer for the project contractor, Howard Preston, was responsible for signage decisions in the area.  Using generally accepted engineering techniques, Preston determined that, due to the lack of pedestrian traffic, advisory signs were not warranted.  MAC conceded at oral argument that Preston’s decisions are not protected by statutory immunity but argued that MAC is entitled to vicarious official immunity for Preston’s decisions.  We agree.  Although the district court did not reach the issue of vicarious official immunity, it was briefed and argued at the district court and on appeal.  

            Official immunity protects a public official who is charged by law with duties calling for the exercise of judgment unless the official is guilty of a willful or malicious act. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (citing Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988)).  Official immunity protects discretionary decisions but not ministerial duties.  Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 220 (Minn. 1998).  An official’s duty is ministerial when it is “‘absolute certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.’”  Id.  (quoting Watson, 553 N.W.2d at 414); S.W. v. Spring Lake Park Sch. Dist. No. 16, 592 N.W.2d 870, 876 (Minn. App. 1999) (“A ministerial act is either the implementation or exercise of established public policy or the application of specific written guidelines.”) (citations omitted), aff’d 606 N.W.2d 61 (Minn. 2000).  A discretionary decision reflects the professional goals and factors of a situation.  Wiederholt, 581 N.W.2d at 315. 

            In deciding whether discretionary decisions confer official immunity, “‘the crucial focus is upon the nature of the act.’”  S.W., 592 N.W.2d at 876 (quoting Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997)).  In this case, Preston used his professional judgment to determine whether signage was needed, in light of the level of pedestrian use.  Preston’s decisions were not the mere execution of any specific guidelines or established policy and Preston would be entitled to official immunity.

Official immunity extends vicariously to the employer “when the nature of the conduct is within the confines of an assigned duty.”  Id. at 877.  Vicarious immunity applies “when failure to grant it would focus ‘stifling attention’ on the official’s performance ‘to the serious detriment of that performance.’”  Wiederholt, 581 N.W.2d at 316. 

A government employer is not denied vicarious official immunity simply because the official was not named in the suit.  Id. at 317.  We hold that vicarious official immunity protects MAC from liability for failing to post signs at the bus stop directing pedestrians to the underpass.

3.  Proximate Cause

            Fawzy presented no evidence showing a causal connection between MAC’s failure to post signs and Nawar’s fatal injury.  Proximate cause is generally a question of fact inappropriately resolved at summary judgment, but where reasonable minds can arrive at only one conclusion, it is a question of law. Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995).  A reviewing court need not defer to a district court’s decision on such a pure question of law.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984). 

            For a defendant’s negligence to be the proximate cause of an injury, (1) the injury must have been foreseeable in the exercise of ordinary care and (2) the plaintiff must show that the defendant’s conduct was a “substantial factor in bringing about the injury.” Lubbers, 539 N.W.2d at 401 (citation omitted).  “Mere speculation, without some concrete evidence, is not enough to avoid summary judgment.”  Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993); see Elias v. City of St. Paul, 350 N.W.2d 442, 444 (Minn. App. 1984) (“A claim of causation is against the evidence when it rests on mere conjecture.”), review denied (Minn.  Oct. 1, 1984).  An assertion that a sign might have prevented the accident, without more evidence, is insufficient to withstand summary judgment.  See Holmquist, 425 N.W.2d at 235 (finding no proximate causation from state’s failure to post narrow-shoulder warning sign because driver produced no evidence connecting change in width of shoulder and driver’s accident).  Nguyen v. Nguyen, 565 N.W.2d 721, 724 (Minn. App. 1997) (holding reliance on a singular account of an accident insufficient to prove a sign would have prevented it); Abbett v. County of St. Louis, 474 N.W.2d 431, 434 (Minn. App. 1991) (finding no proximate cause by county’s failure to install guardrails where injured driver introduced no evidence showing what caused his vehicle to leave the road).

MAC presented the affidavit of Officer Berhane, who observed Nawar crossing Glumack Drive twice.[2]  On the first occasion Berhane stopped Nawar and spoke with him in Arabic.  The affidavit relates Berhane’s personal observations and Nawar’s statements to Berhane that Nawar was aware of the underpass.  Fawzy asserts that the district court improperly considered the affidavit, because it was untimely.  The decision to admit evidence is within the discretion of the district court.  Nimis v. St. Paul Turners, 521 N.W.2d 54, 58 (Minn. App. 1994) (citing In re Conservatorship of Torres, 357 N.W.2d 332, 341 (Minn. 1984)); see Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983) (reversing trial court's decision on admissibility of evidence for abuse of discretion).  The district court acted within its discretion by considering the affidavit on summary judgment.

Fawzy asserts that the statements of Officer Berhane to Nawar about the danger of crossing Glumack and the existence of the underpass are inadmissible hearsay.  See Hopkins by LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. App. 1991) (“Evidence offered to support or defeat a motion for summary judgment must be such evidence as would be admissible at trial.”).  The court, however, considered Nawar’s statements to Berhane.  These statements were made in the context of Officer Berhane’s threatening to ticket Nawar for illegally crossing Glumack Drive.  Nawar admitted that he knew about the underpass and promised to use it in the future to avoid getting a ticket.  The district court acted within its discretion by considering Nawar’s statements, which are admissible as statements against penal interest.  See Minn. R. Evid. 804(b)(3).  Fawzy presented no evidence that signs directing pedestrians to the underpass would have kept Nawar, who was fully aware of the underpass, from again crossing Glumack Drive on the day of his fatal accident.

Affirmed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The record demonstrates the only knowledge MAC had of any pedestrian use in this area is an officer’s observation of Nawar crossing Glumack Drive on two occasions prior to his death.

[2] Officer Berhane saw Nawar coming from the post office on both occasions.  There were signs on the post office side of Glumack Drive warning pedestrians not to cross.