This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Semaj Simmons,





Gerald Allan Olson, et al.,




Filed December 4, 2001


Harten, Judge

Dissenting, Schumacher, Judge



Hennepin County District Court

File No. PI-00-7972



Jeffrey P. Oistad, Meshbesher & Spence, Ltd., 510 Zapp Bank Plaza, 1015 West St. Germain, St. Cloud, MN 56301 (for respondent)


Jay M. Heffern, Minneapolis City Attorney, William C. Dunning, Assistant City Attorney, 300 Metropolitan Center, 333 South Seventh Street, Minneapolis, MN 55402-2453 (for appellants)


            Considered and decided by Schumacher, Presiding Judge, Harten, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N




            Appellants, a snowplow driver and the City of Minneapolis, challenge the district court’s denial of their motion for summary judgment on respondent’s negligence claim.  They argue that the district court erred in holding that the snowplow driver engaged in a ministerial rather than a discretionary action and was not entitled to official immunity.  Because we conclude that the snowplow driver exercised discretion, we reverse.


            In the early morning hours of January 24, 1997, appellant Gerald Allan Olson was plowing snow for appellant City of Minneapolis.  He operated a city-owned tandem dump truck with a mid-body plow and several warning lights.

            While proceeding south for his second pass on Second Avenue, Olson stopped at a red light on the corner of Washington Avenue and Second Avenue.  He proceeded into the intersection at five to ten miles per hour.  Respondent Semaj Simmons, who was traveling eastbound on Washington Avenue, testified that Olson’s light was still red.  Although uncertain, Olson testified that his light had turned green.  When Simmons entered the intersection, he was struck by Olson.  Olson did not see Simmons’s vehicle before the collision.  He stated that a snow pile, estimated at four to five feet high, in the center island obstructed his view.

            Simmons sued appellants for negligence.  Appellants moved for summary judgment, claiming that Olson was exempt from statutory requirements and immune from common law negligence claims based on official immunity.  The district court denied appellants’ motion.  This appeal followed.


            Under the Minnesota Rules of Civil Procedure, summary judgment is proper if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.


Minn. R. Civ. P. 56.03.

Government immunity from tort liability is a question of law that we review de novo.  Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998).  For purposes of reviewing a denial of summary judgment based on a claim of immunity, we assume the facts alleged by the non-moving party are true.  Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997). 

            Appellants argue that Olson engaged in a discretionary action that exempted him from liability under the common law doctrine of official immunity.[1]  Under this theory, appellants claim they are not subject to liability as a matter of law even if a factual dispute exists.

            The common law doctrine of official immunity protects government actors from “suit for discretionary actions taken in the course of their official duties.”  Kari, 582 N.W.2d at 923.  Because only discretionary decisions are protected from suit, a court must determine whether the actor’s decisions were discretionary or ministerial.  See Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998).  A discretionary decision involves the exercise of professional judgment; a ministerial act is “absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.”  Kari, 582 N.W.2d at 923 (citation omitted).

            Appellants argue that Olson exercised sufficient discretion to entitle him to official immunity when proceeding through the intersection.  Minnesota traffic law requires drivers to stop at red traffic lights.  Minn. Stat. § 169.06, subd. 5(a)(3)(1) (2000).  However, Minnesota law exempts “persons, motor vehicles, and other equipment * * * actually engaged in work upon the highway” from the traffic laws.  Minn. Stat. § 169.03, subd. 6 (2000).  This exemption worked to exempt Olson, as one “engaged in work upon the highway,” from violation of section 169.03.  But his exercise of discretion in proceeding through the intersection against the red light remains subject to common law negligence.  The question becomes whether appellants were protected by official immunity.

            Simmons argues that “Olson’s act of making a second pass to clear the road was simple and definite” and therefore ministerial.  Simmons likens snow removal to the removal of a house by the defendants in Williamson v. Cain, 310 Minn. 59, 61, 245 N.W.2d 242, 244 (1976), where the court held that state employees demolishing a house were not entitled to immunity even though the job required some degree of decision-making.

            Simmons’s reliance on Williamson is misplaced because the acts of removing a house and plowing snow are inherently different.  We have recognized that snowplow drivers must

assess the [road] conditions and rely on [their] judgment to determine the appropriate speed.  * * *  [They must also] assess the existing conditions and rely on [their] judgment to determine the best time and manner for plowing.  These decisions involve[] sufficient discretion to fall within the protection of official immunity.


In Re Alexandria Acc., 561 N.W.2d 543, 549 (Minn. App. 1997), review denied (Minn. June 26, 1996).  When actively removing snow, snowplow drivers exercise discretion.  See id. (the snowplow driver’s need to balance “several factors,” including road conditions, makes plowing snow a discretionary, not a ministerial, act).

            Because of the hazardous nature of Olson’s snowplowing activity and because he was exercising discretion under Minn. Stat. § 169.03, subd. 6, when he proceeded through the intersection, we conclude that appellants are protected from suit by official immunity.[2]

            Accordingly, the district court erred by denying appellants’ motion for summary judgment.



ROBERT H. SCHUMACHER, Judge (dissenting)

I respectfully dissent.  Case law requires us to examine immunity on a case by case basis.  See Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988) (whether officer is immune depends on facts of each case). 

A ministerial act is "absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts."  Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998) (citations omitted).   Although a distinction between discretional and ministerial acts may be difficult to draw, an action that is "simple and definite" is "clearly ministerial" Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998) (quoting Williamson v. Cain, 310 Minn. 59, 61, 245 N.W.2d 242, 244 (1976)).

In this case, Olson was plowing a city street, Second Avenue South in Minneapolis.  At the time of the accident, he was crossing Washington Avenue to continue plowing snow on Second Avenue.  There is a question of material fact about whether Olson stopped at the red light before entering the intersection.  The manner in which Olson undertook his duty did not involve discretion.  He did not testify that he weighed the weather and road conditions to determine the best course of action; rather, he stated, "It doesn't take any special skills to [plow] downtown."  Driving the snow plow across Washington Avenue did not require any decisionmaking using "professional judgment" or reflecting "professional goal[s] and factors of a situation" that are necessary for official immunity.  Weiderholt, 581 N.W.2d at 315 (citation omitted); see also Williamson, 310 Minn. at 61, 245 N.W.2d at 244 (removal of house, although requiring some decisionmaking, did not have complexity inherent in discretionary action.).

            I would affirm the district court.


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

[1] Because we conclude that appellants are entitled to official immunity, we do not address appellants’ argument that Olson was excused from the duty to exercise ordinary care.

[2] If Olson is immune by operation of official immunity, the City of Minneapolis is also immune by derivative official immunity.  Watson v. Metro. Transit Comm’n, 553 N.W.2d 406, 414 (Minn. 1996).