This opinion will be unpublished and

may not be cited except as provided by

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








Kristin E. Schaffer,





Ramsey County, et al.,



Filed July 2, 2002


Robert H. Schumacher, Judge


Ramsey County District Court

File No. C4007887


John A. Engels, Frundt & Johnson, Ltd., 117 West Fifth Street, Blue Earth, MN 56013 (for appellant)


Susan Gaertner, Ramsey County Attorney, Thomas E. Ring, Assistant County Attorney, 560 Ramsey County Government Center West, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondents)


Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Shumaker, Judge.



Appellant Kristin E. Schaffer challenges the district court's grant of summary judgment in favor of respondents Ramsey County and Jerel Michael Jones. Schaffer contends that the district court erroneously concluded that Ramsey County and Jones were protected from suit by the doctrines of official immunity and vicarious official immunity. We affirm.


This action arises out of a motor vehicle accident that occurred on February 2, 1999, at approximately 6:30 a.m. Schaffer was driving a white 1994 Chrysler LeBaron westbound on 14th Street Northwest approaching the intersection with Silver Lake Road in New Brighton. At the same time, Jones was operating a snowplow owned by Ramsey County northbound on Silver Lake Road. The semaphore at the intersection was flashing red, requiring drivers coming from all directions to stop. As Schaffer came upon the intersection, she saw the semaphore and brought her vehicle to a stop. She looked to her left and saw Jones's snowplow approaching the intersection. She then looked to her right and, believing that the traffic was clear, made a right turn into the intersection where she was hit by the snowplow.

Jones was operating the snowplow in the course of his employment with the Ramsey County Public Works Department. He began his workday at 5:00 a.m. on the morning of the accident. His work required him to spread sand at intersections, hills, and curves because it had rained and snowed the previous day. Official weather records indicate that during the morning of the accident, there was a cycle of thawing and refreezing with temperatures ranging from 34 F to 26.1 F. During the hour and a half that he was sanding before the accident, Jones observed that the roads were icy and covered by about half an inch of "frosty snow." Jones felt the snowplow slide several times that morning before he approached the intersection.

As he neared the intersection, Jones observed the semaphore. He claims that prior to arriving at the intersection, he was traveling approximately 20 to 30 miles per hour and had all the snowplow's warning and safety lights in operation. Jones saw oncoming traffic on Silver Lake Road but did not see any traffic on 14th Street. Based on the road conditions that he had observed that morning, Jones decided not to stop at the flashing semaphore. He believed that he would have difficulty starting up the snowplow again if he brought it to a complete stop because he was traveling uphill as he approached the intersection. Jones thought stopping and restarting the snowplow could cause it to back slide, swerve, or fishtail into oncoming traffic and rolling through the intersection would be safer. He claims he did not see Schaffer's vehicle until he was more than halfway through the intersection. Jones admitted after the accident that the condition of the roadway did not actually prevent him from stopping at the intersection.

The public works department is responsible for building and maintaining a network of county roads. This includes snowplowing and road sanding. In connection with these responsibilities, the department promulgated three broad policies for its employees based on the weather conditions of a given day. These policies are designated as Condition Red, Condition Green, and Condition Blue.

Condition Red deals with fast changing weather conditions such as an ice storm. Condition Green deals with conditions where an inch or more of snow has fallen. Condition Blue deals with areas that predictably become icy after roads are plowed. None of the policies contain an express requirement that snowplow drivers obey each and every traffic regulation specified under the Minnesota Statutes. At the time of the accident, the county was operating under Condition Blue. Regardless of which policy is in effect on a given day, however, each driver is instructed to exercise professional judgment and discretion consistent with public and co-worker safety to determine the best course of action to complete a given assignment.

Schaffer filed suit against Ramsey County and Jones, claiming she sustained personal injuries and property damage as a result of the accident. She alleged that Jones negligently operated the snowplow and that Ramsey County was liable under the doctrine of respondeat superior because Jones was acting within the scope of his employment. Ramsey County and Jones moved for summary judgment, arguing that Schaffer's claims were barred by the doctrines of official immunity and vicarious official immunity. On September 14, 2001, the district court granted summary judgment in favor of Ramsey County and Jones, determining that both immunities existed.


1. Schaffer contends that the district court erred in granting summary judgment in favor of Jones and Ramsey County. Summary judgment is properly granted when the pleadings, depositions, affidavits, etc. "show that there are no genuine issues 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). On appeal from summary judgment, this court asks two questions: "(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted). The evidence is viewed in the light most favorable to the party against whom judgment was granted. Fabio, 504 N.W.2d at 761. The application of law to stipulated facts is a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Commissioner of Revenue, 488 N.W.2d 254, 256 (Minn. 1992). While Schaffer does point in her brief to some instances where specific facts appear to be in dispute, the facts relevant to the issues of immunity are generally undisputed.

Schaffer argues that the district court erroneously determined that her claims were barred by the doctrines of official immunity and vicarious official immunity. Government immunity from tort liability is a question of law that this court reviews de novo. Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998). The common law doctrine of official immunity protects public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties. Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988). Generally, if official immunity protects a government employee from suit, the governmental entity will also not be liable for the employee's torts under the doctrine of vicarious official immunity. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992).

Official immunity only 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. 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). "Discretion" has a broader meaning in the context of official immunity than in the context of statutory immunity. Watson v. Metro. Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996). Official immunity protects the kind of discretion that is exercised on an operational, rather than a policymaking, level. Id. Discretion , however, still requires "something more than the performance of 'ministerial' duties." Id.

Minnesota traffic law requires drivers to stop at semaphores that are flashing red. Minn. Stat. 169.06, subd. 7 (1998). Minnesota law, however, exempts "persons, motor vehicles, and other equipment * * * actually engaged in work upon the highway" from the traffic laws. Minn. Stat. 169.03, subd. 6 (1998). Because Jones was sanding the roads under the scope of his employment at the time of the accident, he was exempt as one "engaged in work upon the highway" from violation of section 169.03. But his actions in proceeding through the intersection against the semaphore remain subject to common law negligence. See Hockenhull v. Strom Constr. Co., 212 Minn. 71, 74, 2 N.W.2d 430, 432 (1942) (stating that road contractor, although not subject to highway traffic regulations because actually engaged in work upon highway, may be held liable at common law for failing to observe requirements of due care in operations upon highway). The question thus remains whether Jones is protected by official immunity.

Schaffer argues that Jones's decision was not a discretionary decision. This court has 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. (snowplow driver's need to balance "several factors," including road conditions, makes plowing snow discretionary, not ministerial, act). Though Jones admits that he was not in the process of removing snow, he was actively sanding the roads at the time of the accident.

Schaffer relies on Larson v. Indep. Sch. Dist. No. 314, 289 N.W.2d 112 (Minn. 1979). In Larson, the Minnesota Supreme Court held that a gymnastics instructor's decision on how to teach his gymnastics class, including decisions about how to spot the exercises and his evaluation of the participant's skill level prior to teaching a student a headspring maneuver, were ministerial decisions because they did not involve weighing policy considerations. Id. at 120-21. Larson is inapplicable here. Larson focused on the lack of weighing policy considerations, official immunity protects discretion exercised on an operational level, not a policy making level. See Watson, 553 N.W.2d at 414. Also, contrary to the specific circumstances present here, Larson is based in part on the "special status school children have in the eyes of the law." Larson, 289 N.W.2d at 120.

Here, Jones testified that during his hour and a half of sanding prior to the accident, he observed that the roads were icy and covered with "frosty snow." He also felt the snowplow slide several times while sanding. Based on these observations, Jones determined that for safety reasons it was best that he not stop at the semaphore, but instead slowly roll through the intersection. Jones was afraid that stopping would cause the snowplow to slide backwards or fishtail/swerve into oncoming traffic.

Jones's decision not to stop at the flashing semaphore was a discretionary decision. He balanced safety concerns in light of the road conditions he observed in deciding not to stop. While the facts regarding whether or not the intersection itself was icy at the time of the accident are in dispute, this does not preclude acknowledgment and consideration of Jones's prior observations that led to his decision not to stop.

Schaffer also argues that Jones is not entitled to official immunity because Jones was acting outside the scope of his authority when he failed to stop at the flashing semaphore. It is undisputed that Jones was operating the snowplow in the course of his employment with Ramsey County at the time of the accident. Ramsey County's policies do not require that snowplow drivers obey every traffic regulation at all times. The policies instruct the drivers to exercise their discretion in the performance of their duties when safety requires. In addition, Minn. Stat. 169.03 exempts snowplow drivers from strict compliance with traffic regulations. Jones did not act outside the scope of his authority by failing to stop at the flashing semaphore.

Schaffer also argues that Jones is not entitled to official immunity because Jones's conduct was malicious. We disagree. Official immunity does not apply if the official committed a willful or malicious wrong. Elwood, 423 N.W.2d at 679. "Malice" is defined as "the intentional doing of a wrongful act without legal justification or excuse, or * * * the willful violation of a known right." Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (citations omitted). The question of malice is an "objective inquiry into the legal reasonableness of an official's actions." State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). An official's actions are legally unreasonable if the official commits those acts while having reason to believe they are prohibited. Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. App. 1997), review denied (Minn. May 20, 1997).

There is no evidence in the record that Jones acted with malice. Jones testified that he did not stop at the semaphore because he believed that stopping would cause a greater safety hazard than not stopping. There is also no evidence in the record that Jones believed that his conduct was prohibited. To the contrary, Ramsey County's policies and the Minnesota statutes indicate that Jones had discretion to violate the traffic laws in the interest of safety.

Because Jones is protected by official immunity, Ramsey County is consequently also protected by vicarious official immunity. Vicarious official immunity may apply to government employers when their employees have official immunity. Wiederholt, 581 N.W.2d at 316. The decision of whether to grant a governmental employer vicarious official immunity is generally considered a policy question. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992). The Minnesota Supreme Court has repeatedly held, however, that the failure to extend vicarious official immunity to an employer would defeat the purpose of official immunity. See, e.g., Watson, 553 N.W.2d at 415; Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993); Pletan, 494 N.W.2d at 42. Failure here to extend vicarious official immunity to Ramsey County would defeat the purpose of official immunity. Because Jones is protected by official immunity and Ramsey County is similarly protected by vicarious official immunity, the district court did not err by granting summary judgment in favor of Ramsey County and Jones.