This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Kyle Lamar Hancock,





Independent School District

No. 281,



Filed December 3, 2002


Hudson, Judge


Hennepin County District Court

File No. PI01012111


James S. Ballentine, Peter W. Riley, Schwebel, Goetz & Sieben, P.A., 5120 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402 (for respondent)


Shamus P. O’Meara, Robert A. Fleagle, Teresa M. Thompson, Johnson & Condon, P.A., Financial Plaza, 7235 Ohms Lane, Minneapolis, Minnesota 55439-2152 (for appellant)


            Considered and decided by Hudson, Presiding Judge, Peterson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


            In this premises liability personal injury dispute, appellant Independent School District #281 challenges the denial of its summary judgment motion, alleging that the decision to replace non-safety glass only when the glass is broken is a policy decision entitled to statutory discretionary immunity.  We affirm. 


On March 16, 1998, respondent Kyle Hancock (Hancock) was a member of the Armstrong High School track team.  He was injured when he attempted to leave the school building through a glass door to head outside for track practice.  As he pushed on the door, the glass shattered and he sustained lacerations to his face and wrists.  Hancock brought this premises liability personal injury action, alleging that appellant school district’s (school district) negligent maintenance, inspection, operation and repair caused the accident. 

School district contends that in 1985, the building codes in Minnesota were changed, and all doors and windows installed after that date were required to be glazed with tempered “safety” glass.  However, according to school district, non-tempered glass in place as of 1985 could remain.  School district further claims that it continually makes decisions concerning the best use of its limited funds and, after balancing the needs of its students against its budgetary concerns, it has continually decided not to replace its non-tempered glass windows and doors with tempered “safety” glass except to replace broken glass. 

School district moved for summary judgment, arguing, among other things, that this glass-replacement decision or policy was entitled to statutory discretionary immunity pursuant to Minn. Stat. § 466.03, subd. 6 (2002).  The district court denied school district’s motion and this appeal followed.


Rule 56.03 of the Minnesota Rules of Civil Procedure allows for a grant of summary judgment if, upon examination of the record, “there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”  Id.  When reviewing a district court’s summary judgment ruling, this court looks for two things: (1) genuine issues of material fact; and (2) proper application of the law by the district court.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Evidence is considered in a light most favorable to the non-moving party, and any doubts about material facts are resolved in its favor.  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001).  To survive a motion for summary judgment, however, the non-moving party must do more than create a mere “metaphysical doubt” as to the facts.  Id. at 703.  The non-moving party must point to probative substantial evidence in the record supporting its claim.  Id.

            Generally, government entities are subject to tort liability.  Minn. Stat. § 466.02 (2002).  A narrow exception to this rule insulates governmental bodies from liability under certain circumstances.  Minn. Stat. § 466.03 (2002).  Specifically, subdivision 6 provides immunity from “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”  Id., subd. 6.  To determine whether the immunity applies, the Minnesota supreme court “has employed the distinction between policymaking activities (which are protected) and operational activities (which are not).”  Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn. 1992) (citation omitted).  Whether immunity applies is a question of law, reviewed de novo.  Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998).  “The discretionary function exception is interpreted narrowly.”  Conlin v. City of Saint Paul, 605 N.W.2d 396, 400 (Minn. 2000).  While most governmental acts involve some degree of discretion, certainly not all acts are protected.  Christensen v. Mower County, 587 N.W.2d 305, 307 (Minn. App. 1998). 

Thus, governmental conduct at the planning level involving policy decision-making is protected.  Conlin, 605 N.W.2d at 400; see also Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 719-20 (Minn. 1988) (discretionary exception protects decisions which reflect a balancing of broad political, economic and social considerations).  Conversely, governmental conduct at the operational level involving daily operations, as well as implementation of such decision-making, is not protected.  Angell v. Hennepin County Reg’l Rail Auth., 578 N.W.2d 343, 348 (Minn. 1998); Nusbaum, 422 N.W.2d at 719-20.  The government must do more than label its acts as discretionary; rather, it must provide “evidence its conduct was of a policy-making nature involving social, political, or economic considerations, rather than merely professional or scientific judgments.”  Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994) (citation omitted).

The first step in statutory immunity analysis is to identify the precise governmental conduct in question.  Nusbaum, 422 N.W.2d at 722.  Here, while it is clear the conduct in question is school district’s glass-replacement decision, it is difficult to determine when school district actually made that decision.  School district argues that its initial glass-replacement decision was made in 1985, in connection with the amendments to the Minnesota building code.  School district also claims, however, that it reaffirmed its glass-replacement decision with every subsequent budget period, and that it made a specific decision at some point in 1998 to postpone renovation of all its buildings (including glass replacements), until the summer of 1998.  In any event, school district argues that its decision (whenever it occurred) to replace the non-tempered glass doors and windows on an as-needed basis was a discretionary act because it was a planning-level decision protected by statutory immunity.  We disagree.   

School district contends that it made this decision after balancing the cost of replacement glass, the risks of leaving existing glass in place, and its desire to use its “limited funds for purposes that were more directly educational.”  The only evidentiary support for this claim appears in an affidavit by District Superintendent Stan Mack.  Although he was not the superintendent at the time of Hancock’s injury, Superintendent Mack stated that the school district had allocated significant funds to replace doors and make other property improvements to the school district buildings in early 1998.  Superintendent Mack added that “[t]he school district balanced the need to complete the renovation with economic and safety factors invoked by the renovations and determined that a summer renovation best addressed all of these concerns.” 

School district further argues that it does not need any written evidence of its policy, and urges this court to regard discretionary immunity expansively.  But “[t]he discretionary function exception is interpreted narrowly.”  Conlin, 605 N.W.2d at 396.  Here, the evidence submitted by school district of its glass-replacement policy decision is Superintendent Mack’s statement in his affidavit that in 1985, the school district decided to hold off on replacement of the entry door glass because the building codes specifically permitted it.  But he produced no meeting minutes, for example, or any other documentation detailing the specific facts concerning how that decision was made or what factors were considered.  Similarly, Superintendent Mack did not provide information on the specific financial limitations the district faced (either in 1985 or 1998), but instead, generally stated that the school district balanced the need to complete the 1998 renovation with economic and safety factors.  We acknowledge that policy decisions need not be in writing in order to be protected by statutory immunity.  But here, there is virtually no evidence, written or otherwise, demonstrating that school district engaged in planning-level conduct protected by statutory immunity.  School district simply stating that it’s decision not to replace the non-tempered glass is a policy decision does not make it so.  Conlin, 605 N.W.2d at 347.  

Relying on this court’s recent decision in Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001), the district court found that Superintendent Mack’s affidavit did not demonstrate policy-based decision-making.  We agree.  In Fear, a student who was injured in a fall from a snow pile brought suit against the school district.  This court held that the school district failed to meet its burden of demonstrating that snow removal was a policy-based decision protected by statutory discretionary immunity.  Id. at 212.  The school district in Fear submitted two affidavits in support of its claim of immunity.  Each stated in a conclusory manner that its decision concerning where to put the snow after removal was a planning-level decision.  Id. at 210-11.  This court concluded that the absence of particular facts proving planning-level decision-making was fatal to the school district’s claim of immunity.  Id. at 212.  The school district did not provide evidence of either a snow-removal-and-disposal policy or actual figures demonstrating its budgetary restraints.  Id.  While the affidavits mentioned issues the school district might have considered, it still did not satisfy its burden because “the possibility of bootstrapping and the requirement that statutory immunity be narrowly construed” weighed against the school district’s claim of immunity.  Id.  

Like the school district in Fear, the school district here has not provided evidence of a glass-replacement policy or any other specific facts demonstrating that there was a glass-replacement policy or that a planning-level decision was in fact made, except for Superintendent Mack’s conclusory affidavit.  “Where the government has not provided any evidence as to how it made the decision for which it claims immunity, this court has held that the government was not entitled to statutory immunity.”  Conlin, 605 N.W.2d at 402 (citing Angell, 578 N.W.2d at 347). 

School district argues that Fear is distinguishable, and its holding was proper because the school district’s decision on where to put the snow was not a true policy decision, but rather a professional, operational decision.  By contrast, school district contends its glass-replacement policy was a true policy decision as evidenced by its careful examination of its finances in relation to safety issues.  Moreover, school district argues that although the glass-replacement policy was never reduced to writing, school custodian Milton Nolte and Superintendent Mack both stated that the school district policy had been in place since 1985 and that the policy was simple:  no glass would be replaced unless it was broken. 

The fact that the purported glass-replacement policy was implemented 13 years ago does not bolster school district’s claim.  More likely, 13 years of replacing plate glass with tempered “safety” glass only when the plate glass was broken, demonstrates that the school district’s policy was simply the daily implementation of an operational decision; -- a decision that was made on-site by the custodians on an ad hoc, as-needed basis.  The deposition testimony of Superintendent Mack and Nolte support this assessment.  Both testified that the decision to replace the glass was a custodial one.  Superintendent Mack testified, “the highest level of that decision to replace broken glass or replace that, would be at the building custodial level.”  Moreover, Nolte testified that he kept pre-cut glass in stock and possessed the expertise to install the door panels himself.  With respect to the broken glass at issue in this case, Nolte replaced it immediately and testified that he needed no special authorization to do so.  He further testified that he was surprised that the glass door that injured Hancock still had non-safety glass given that the school had replacement “safety” glass on site, and had been replacing the non-safety glass over the course of normal, on-going maintenance.  Importantly, the fact that there was an ample supply of safety glass on-site contradicts Superintendent Mack’s affidavit statement that the school district’s glass-replacement policy was driven by budgetary constraints. 

The lack of evidence concerning the development of school district’s glass-replacement policy and Superintendent Mack’s and Nolte’s deposition testimony that seem to contradict such a policy existed, demonstrate that there is a material fact issue concerning the existence and nature of school district’s glass-replacement policy.  Therefore, the district court’s denial of summary judgment was appropriate.

            Finally, school district argues that even though it cannot present written documentation of its glass-replacement policy, such as transcribed minutes from a school board meeting or an actual policy, such evidence is unnecessary because it can demonstrate “the actual performance of this policy, and the affirmation of this policy by performance.”  But the issue here is whether there ever was such a policy.  Again, given the scant and conflicting evidence as to the existence of a policy, the district court properly denied appellant’s motion for summary judgment.  Even if school district could clearly demonstrate it had a glass-replacement policy, the implementation of established policy is generally not immune from liability.  Angell, 578 N.W.2d at 348.  “It is, however, the evaluation and weighing of social, political, and economic considerations underlying public policy decisions, not the application of scientific and technical skills in carrying out established policy, which invokes the discretionary function exception affording governmental immunity.”  Holmquist v. State, 425 N.W.2d 230, 233 (Minn. 1988) (citation omitted). 

Because school district failed to establish that its conduct was entitled to discretionary immunity, the district court properly denied summary judgment.