This opinion will be unpublished and

may not be cited except as provided by

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







Mary W. Dewitt,





The Metropolitan Council,



C.K.C. Contracting, Inc.,



City of Minneapolis,



Filed August 6, 2002


Parker, Judge*


Hennepin County District Court

File No. PI00010629


Brian J. Love, Hauer, Fargione, Love, Landy & McEllistrem, P.A., 5901 South Cedar Lake Road, Minneapolis, MN  55416 (for respondent Dewitt)


Diane B. Bratvold, Jan M. Gunderson, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN  55402 (for respondent Metropolitan Council)


Patrick C. Cronan, Michael R. Quinlivan, Cronan Pearson Quinlivan, P.A., 1400 Foshay Tower, 821 Marquette Avenue South, Minneapolis, MN  55402 (for respondent C.K.C. Contracting, Inc.)


Jay M. Heffern, Minneapolis City Attorney, Edward A. Backstrom, William C. Dunning, Assistant City Attorneys, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN  55402-2453 (for appellant)


            Considered and decided by Harten, Presiding Judge, Shumaker, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


Respondent Mary W. DeWitt suffered a personal injury when a bus in which she was riding struck a depression in the roadway near the intersection of Sixth Street and Second Avenue in downtown Minneapolis.  DeWitt sued the City of Minneapolis for her injuries on the grounds that the city negligently failed to implement established policies to inspect and maintain the roadway and to warn drivers about the roadway’s defect.  The city moved for summary judgment on the grounds that official and statutory immunity barred DeWitt’s suit because once the city received notice of the defect, the city’s actions regarding how to respond to that notice were discretionary.  The district court denied that motion, and the city timely appealed.  We affirm.


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


Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted). 

Although an order denying summary judgment is usually not appealable, an order denying summary judgment may be appealed where, as here, a claim of immunity has been asserted.  City of Woodbury v. Woodbury Township Co., 254 N.W.2d 385, 387 n.3 (Minn. 1977); McNamara v. McLean, 531 N.W.2d 911, 914 (Minn. App. 1995). 

Our review of a denial of summary judgment based on a claim of immunity focuses on the legal issue of immunity and presumes [that] the facts alleged by the nonmoving party are true.


Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997) (citing Waste Recovery Co-op of Minn. v. County of Hennepin, 517 N.W.2d 329, 332 (Minn. 1994)).  A district court’s decision regarding whether to grant immunity is a legal question, which this court reviews de novo.  Christopherson v. City of Albert Lea, 623 N.W.2d 272, 275 (Minn. App. 2001).

The common law doctrine of official immunity provides that a public official who is charged by law with duties calling for the exercise of judgment or discretion is not personally liable to an individual for damages unless the official is guilty of a willful or malicious act.   


Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (citation omitted).  Official immunity exists “to protect public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties.”  S.L.D. v. Kranz, 498 N.W.2d 47, 50 (Minn. App. 1993) (quoting Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988)) (citation omitted). 

The doctrine of vicarious official immunity generally entitles a government employer to immunity from suit when official immunity applies to the actions of its employee, regardless of whether the suit names the employee as a defendant.  Wiederholt, 581 N.W.2d at 316-17.  Therefore, a city employee’s official immunity protects the city from standing trial for claims based on the performance of duties that require a city employee to exercise judgment or discretion.  See id.

But official immunity does not extend to ministerial tasks.  Id. at 315.  “A discretionary act is one which requires a balancing of complex and competing factors at the planning, rather than operational, state of development,” and involves “the exercise of individual judgment in carrying out the official’s duties.”  Ostendorf v. Kenyon, 347 N.W.2d 834, 837 (Minn. App. 1984) (citations omitted); Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998) (citation omitted).  In contrast, a ministerial duty is “absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts.”  Wiederholt, 581 N.W.2d at 315 (quotation omitted).  Notably, even ministerial acts require some degree of discretion.  Ostendorf, 347 N.W.2d at 837.

“The starting point for analysis of an immunity question is the identification of the precise governmental conduct at issue.”  Huttner v. State, 637 N.W.2d 278, 284 (Minn. App. 2001) (quotation omitted), review denied (Minn. Nov. 13, 2001).  Here, the parties do not dispute that the city received notice of the defect on the night before DeWitt was injured.  At issue, then, is the nature of the city’s duty after it received notice of the defect; that issue controls whether official immunity applies.  See S.L.D., 498 N.W.2d at 50.

            By affidavit, William P. Barnes, a city employee who works for the street department, stated:

When a report of a defect is received outside of working hours, a City employee is ordinarily sent to the location of the reported defect.  If the employee determines that the defect may cause harm to persons or property, the employee is required to place a small, sawhorse style, barricade with a flasher at the defect to warn drivers or pedestrians.


The city argues that because the policy gives an employee “discretion” regarding how to respond to a report of a defect, the employee’s actions were discretionary in nature, thus entitling the city to immunity.  But ministerial acts may include those acts in which the only exercise of discretion that the act involves occurs within the confines of an established policy.  S.W. v. Spring Lake Park Sch. Dist. No. 16, 592 N.W.2d 870, 876 (Minn. App. 1999), aff’d, 606 N.W.2d 61 (2000).

In his deposition, Douglas Rogers, a city employee, testified that he relies on common sense to determine how to handle a complaint about a road defect.  Rogers testified that he received the complaint about the road defect on the evening before DeWitt was injured and that he immediately went to the site.  He took a warning flasher with him because he had been told “the street was sunk.”  Rogers testified that he placed the flasher at the site of the defect but that he did not have the authority to reroute the bus traffic or to close the lane to traffic.  After placing the warning flasher, Rogers returned to work and placed the complaint in a complaint box for a supervisor to send a work crew out to the site as soon as one became available.

Once Rogers received notice of the defect and its location, he responded within the confines of the city’s clearly established policy.  His actions did not require the kind of discretionary judgment that gives rise to immunity.  See Ostendorf, 347 N.W.2d at 838 (holding that once state knew about dangerous situation on highway, decision regarding whether to place signs to warn motorists about defect was not discretionary).  The district court did not err by concluding that the city is not entitled to official immunity.        

The city also argues that statutory immunity under Minn. Stat. § 466.03 (2000) protects its budgetary decision not to employ nighttime repair crews to repair noticed defects.  But DeWitt did not raise an issue as to the city’s failure to budget money for nighttime repair crews, and therefore we do not reach this argument.


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