This opinion will be unpublished and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

C0-00-732

 

Elizabeth Armstrong, et al.,

Appellants,

 

vs.

 

County of Sherburne, et al.,

Respondents.

 

Filed December 12, 2000

Affirmed

Willis, Judge

 

Sherburne County District Court

File No. C6991279

 

John H. Bradshaw, Bradshaw & Bryant, P.O. Box 539, Eden Valley, MN  55329; and Wilbur W. Fluegel, Fluegel Law Office, 701 Fourth Avenue South, Suite 1260, Minneapolis, MN  55415 (for appellants)

 

Peter D. Bergstrom, Thomas P. Carlson, Bergstrom, Carlson & Soldo, PLLP, Suite 300, 420 Summit Avenue, St. Paul, MN  55102 (for respondents)

 

            Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant Elizabeth Armstrong challenges the district court’s grant of summary judgment to respondent Sherburne County.  Because we conclude that Sherburne County is entitled to vicarious official immunity, we affirm summary judgment for the county. 

FACTS

Appellant Elizabeth Armstrong was a Girl Scout troop leader whose troop attended a K-9 demonstration presented by the Sherburne County Sheriff’s Department.  Armstrong volunteered to participate in the demonstration, during which she was asked to run from a police dog as if she were a suspect it was pursuing.  Armstrong asked the deputy if there was a chance she would get “hurt” or “knocked down” during this exercise.  The deputy explained that the dog does not knock people down but that there was a chance she could slip and fall because she was going “to slow down to some degree when a 100-pound dog grabs your arm, so there’s always a chance to slip.”  Armstrong agreed to participate.  When the dog caught her, she fell, injuring her leg and knee.  Armstrong claims that because the dog caused her fall and resulting injuries, she is entitled to relief under Minn. Stat. § 347.22 (1998), the “dog-bite” statute, against Sherburne County, the dog’s owner. 

The district court granted the county’s summary-judgment motion on the ground that Armstrong had assumed the risk of her injury but denied the county’s claim that it was entitled to vicarious official immunity.  Armstrong appealed the court’s grant of summary judgment and the county filed a notice of review, arguing that the district court erred in failing to apply governmental immunity. 

D E C I S I O N

Although the district court granted summary judgment to the county on the ground that Armstrong had assumed the risk of her injuries, we conclude that the county has vicarious official immunity, and summary judgment should have been granted on that basis.  We therefore affirm the district court, although on a different ground.  See Myers through Myers v. Price, 463 N.W.2d at 773, 775 (Minn. App. 1990) (stating that this court will affirm grant of summary judgment if it can be sustained on any ground), review denied (Minn. Feb. 4, 1991).

Under Minnesota law, municipalities generally are liable for their torts and for those of their employees acting within the scope of their employment.  Minn. Stat. § 466.02 (1998).  But summary judgment may be granted when a governmental entity establishes that the acts of its employees are immune from liability.  In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 546 (Minn. App. 1997).  Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Whether immunity applies is a legal question, subject to de novo review.  Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998).

Official immunity is a common-law doctrine providing that a public official charged by law with duties that call for the exercise of his or her judgment or discretion is not personally liable for damages unless the official is guilty of a willful or malicious wrong.  Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988).  Official immunity serves to protect government officials from fear of liability that might “deter independent action and impair effective performance of their duties.”  Id. at 678.

In determining whether an official’s acts are immune, courts look to whether the acts at issue are discretionary or ministerial.  Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998).  An act is ministerial, and thus not protected by official immunity, when it is “absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.”  Id. (quotation omitted).  A discretionary act, which is protected, is one in which an official must exercise judgment or discretion.  Elwood, 423 N.W.2d at 677.  Official immunity protects from liability the kind of discretion that is exercised on an operational level rather than a policymaking level.  Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992).

A determination of official immunity requires a two-step inquiry:  (1) whether the act required the exercise of judgment and discretion and is therefore the type of conduct covered by official immunity; and (2) whether the alleged act, even though of the type covered by official immunity, was malicious or willful and therefore not entitled to protection.  See Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997).  Armstrong does not allege that the county acted in a malicious or willful manner. 

We conclude that the deputy’s conduct at issue in this case required the exercise of his judgment and discretion and is, therefore, entitled to official immunity.  Further, because the deputy is immune from liability, the county is vicariously immune from liability.  Vicarious official immunity protects a governmental entity from a suit based on the acts of an employee who is entitled to official immunity.  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998).  The supreme court has concluded that “it would be anomalous” to impose liability on the government employer for the very same acts for which the employee receives immunity.  Id. (quotation omitted).

The deputy testified that the person who normally served as the “agitator” had not shown up for the exercises on the day Armstrong was injured.  He then had to determine whether to cancel the demonstration for the Girl Scouts or to go forward using a volunteer.  The deputy’s decision to go forward with the demonstration was discretionary, not ministerial.  A discretionary decision is one involving individual professional judgment that reflects the professional goal and factors of a situation.  Id. at 315.  The deputy used his individual professional judgment in deciding to proceed using a volunteer in place of the agitator.  Nothing in the record shows that the deputy made his decision based on a specific duty or policy.

The district court concluded that official immunity did not apply because no “emergency situation confronted [the deputy] at the time of the incident.  He did not have to make a split-second judgment call * * * .”  But the court cites no authority for its proposition that officials are only immune from liability if they are acting in emergency situations.  To the contrary, this court has held that an emergency situation is not a necessary condition for official immunity to apply.  Duellman v. Erwin, 522 N.W.2d 377, 380 (Minn. App. 1994), review denied (Minn. Dec. 20, 1994) (holding that police officer’s decision to return to accident scene was discretionary because “it involved weighing some factors, albeit not in an emergency situation.”).

            Because we conclude that Sherburne County is entitled to vicarious official immunity, we need not determine whether Armstrong assumed the risk of her injuries.  In light of our conclusion, it is also unnecessary for us to consider the county’s argument that statutory immunity applies or Armstrong’s argument that the county is liable under Minn. Stat. § 347.22 (1998), the “dog-bite” statute.

Affirmed.



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