This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Hennepin County District Court
File No. PI00017136
Mark D. Streed, Meshbesher & Spence, Ltd., 8360 City Centre Drive, Suite 100, Woodbury, MN 55125 (for appellants)
Brian A. Wood, William L. Davidson, Lind, Jensen, Sullivan & Peterson, 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondents Darnell Breedlove and Juanita Breedlove)
Jay M. Heffern, Minneapolis City Attorney, Timothy S. Skarda, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondents City of Minneapolis and Officer Florell)
Considered and decided by Wright, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.
In this personal-injury lawsuit arising out of a vehicular police pursuit, appellant challenges the district court’s summary judgment in favor of respondents, a police officer, the Minneapolis Police Department, the City of Minneapolis, the driver of the vehicle in which appellant was riding, and the vehicle’s owner. We affirm.
On December 13, 1994, appellant Theresa Gray and her two-month-old daughter, Ashley Gross, visited the home of Darnell Breedlove’s mother. At the conclusion of the visit, Breedlove borrowed his mother’s car to give Gray and her daughter a ride home. While en route, Breedlove agreed to stop at a convenience store for Gray. Driving under the speed limit because the streets were slippery, Breedlove proceeded seven or eight blocks until he arrived at the intersection of Penn Avenue North and Golden Valley Road.
At approximately the same time, Minneapolis Police Officer Florell was driving his partner, Officer Lauridsen, back to the fourth precinct. Traffic was light, and, although it was not snowing, the streets were snow-packed. The officers noticed a vehicle driving west with its high beams on. Based on their professional judgment and experience, they suspected that the vehicle was stolen, although it had not been reported as such. The vehicle was also swerving from side to side, narrowly missing the right-hand curb at some points. The officers followed the vehicle as it turned, without signaling, from Penn Avenue onto 16th Avenue. The officers continued to follow the vehicle into an alley, and Lauridsen told the dispatcher of the officers’ intention to make a traffic stop.
About one-third of the way into the alley, Florell turned on the police car’s flashing red lights. The suspect vehicle failed to pull over and continued down the alley. When the vehicle turned out of the alley, Florell turned on the police car’s siren and accelerated after it. The vehicle then sped through a red light on Penn Avenue. At that point, Florell turned on the police car’s siren and accelerated after the vehicle. The officers accelerated to about 40 miles per hour and followed about half a block behind the vehicle, but soon gave up the chase because the street was so slippery that Florell feared they were going to crash. Florell then turned the siren off but kept the flashing red lights on. As the officers crested a slight hill on Penn Avenue between 17th and 18th Avenues, the officers were approximately two blocks from the vehicle and could see it speed through a red light at the intersection of Penn Avenue North and Golden Valley Road.
Breedlove was driving through the intersection at the same time and was struck by the suspect vehicle. Vernon Patterson, an independent witness, was crossing the street at the time of the collision and had to run to avoid getting hit. He later testified that Breedlove had no time to prevent the collision and that even “[i]f [Breedlove] had gunned it to try to move it out of the way, [Breedlove] still would have [been] hit.”
When the officers arrived at the scene, Fred Thompson, the driver of the suspect vehicle, and his passenger were getting out of the car and fleeing on foot. Lauridsen dispatched an ambulance to the scene, then chased Thompson and found him hiding under a car a few blocks away. Florell remained at the accident scene with Breedlove and his passengers.
Breedlove’s vehicle had been broadsided by Thompson and crashed into a building on the corner. Breedlove and Gray were pinned in the car. Gray’s infant daughter had been thrown from the car. Gray and her daughter suffered severe injuries.
Gray filed suit, alleging that (1) Florell engaged in negligent and reckless conduct by pursuing Thompson in a high-speed chase in a residential neighborhood and (2) Breedlove drove in a negligent manner. Respondents Florell, the Minneapolis Police Department, the City of Minneapolis (Minneapolis respondents, collectively), Breedlove, and Breedlove’s mother filed motions for summary judgment, which the district court granted. This appeal followed.
On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. at 71. A genuine issue for trial must be established by substantial evidence. Id. at 69-70. This court views the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). This party must produce specific facts that create an issue for trial. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). Summary judgment is appropriate when a party fails to make a showing sufficient to establish the existence of an element essential to the party’s case. Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 786 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998).
Official immunity is a common-law doctrine protecting government officials “from suit for discretionary actions taken in the course of their official duties.” Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998) (citation omitted).
Official immunity involves the kind of discretion which is exercised on an operational rather than a policymaking level, and it requires something more than the performance of “ministerial” duties.
Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992). Official immunity encourages public officials to exercise care in “performing duties that require little or no independent judgment” without deterring them from exercising their judgment when making required decisions. S.L.D. v. Kranz, 498 N.W.2d 47, 50 (Minn. App. 1993). Official immunity has been found to apply to a police officer’s decision “to engage in and to continue vehicular pursuit of fleeing criminal suspects.” Pletan, 494 N.W.2d at 41 (affirming official immunity where shoplifter, pursued by police officers, ran three red lights, collided with two cars, and struck and killed child walking through intersection).
[A] public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.
Elwood, 423 N.W.2d at 677(quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)). Determining whether official immunity applies in a given context requires a two-step inquiry to determine (1) whether the alleged acts are discretionary or ministerial and (2) whether the alleged acts, while entitled to official immunity, were malicious or willful and, therefore, stripped of the immunity’s protection. Dokman v. County of Hennepin, 637 N.W.2d 286, 296 (Minn. App. 2001). 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). In determining whether an official has committed a malicious wrong, we consider whether the official has intentionally committed an act that he or she had reason to believe is prohibited. Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991).
Here, the parties agree that the first step of the two-step inquiry has been satisfied. It is uncontested that Florell’s actions were discretionary. But Gray argues that the district court erred in granting summary judgment in favor of the Minneapolis respondents, because Florell acted willfully or maliciously in pursuing Thompson. Gray argues that Florell knew or should have known that pursuing Thompson violated the policy on pursuit set forth in the Minneapolis Police Department manual (MPD manual), because initiating pursuit was an unwarranted risk to public safety in light of the road conditions and the minor traffic offenses — using high beams within city limits, failure to signal intentions, and failure to stop at a red light — that Thompson committed.
According to the MPD manual, officers shall not initiate or continue a pursuit when “risks due to weather, road conditions, vehicle and/or pedestrian traffic * * * outweigh the necessity to immediately arrest the suspect.” The MPD manual also requires an officer to weigh the seriousness of the offense against the potential risk to the public and to themselves when determining whether to initiate or continue a pursuit.
The uncontraverted evidence establishes that Florell began pursuing Thompson for suspected car theft, not the minor traffic violations that Gray identifies. Further, when Florell initiated the pursuit, the temperature was about 25 degrees, it was not snowing, and the traffic was light. Florell soon realized that the street was too slippery and discontinued the pursuit to avoid an accident. Viewed in the light most favorable to Gray, the record does not present a factual dispute as to whether Florell’s actions were in compliance with the MPD manual. When Florell decided to pursue Thompson, Florell perceived the conditions to be safe. When he determined that, due to road conditions, the risks involved in continuing the pursuit outweighed the necessity of immediately arresting Thompson, Florell discontinued the pursuit. The record does not support Gray’s allegations that Florell acted willfully or maliciously. We, therefore, conclude that there is no genuine issue of material fact in dispute. The district court did not err in concluding as a matter of law that Florell’s actions were protected by official immunity.
Because Florell’s actions are protected by official immunity, we hold that official immunity extends to the City of Minneapolis and the Minneapolis Police Department. Generally, if an employee is found to have official immunity, the employer is vicariously immune. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998). The city vicariously enjoys the official immunity conferred on its employees where the threat of liability against the city would undermine the purposes of official immunity. Pletan, 494 N.W.2d at 42; S.L.D. 498 N.W.2d at 51.
In Pletan, an officer was protected by official immunity after a shoplifter, pursued by the officer, struck and killed a seven-year-old boy. The Minnesota Supreme Court held that the officer’s immunity extended to the city, reasoning that
[i]f vicarious official immunity does not apply, the conduct of the immunized police officer must still be reviewed in order to impose liability on the employer. But then the purpose of official immunity, which is to shield an officer’s exercise of independent judgment from civil adjudication, is, as a practical matter, defeated. Police officers may justifiably think their own employment performance is being evaluated and consequently may decline to engage in pursuit when pursuit is indicated. It would seem, too, if criminals get the impression that by speeding away they can discourage pursuit, they will act on that impression and speed away.
Pletan, 494 N.W.2d at 42.
In light of our ruling that Florell is entitled to official immunity, we conclude that the district court correctly determined that vicarious official immunity applies to the Minneapolis Police Department and the City of Minneapolis.
Gray next argues that the district court erred in granting summary judgment in favor of Breedlove, because a disputed fact remains as to whether Breedlove breached a common-law duty of care when he failed to notice Thompson speeding on Penn Avenue with his high beams on.
The driver of a car has a duty to operate the car with reasonable care under the circumstances so that the risk of riding in it is no greater than the risk assumed when the passenger entered the car. Olson v. Buskey, 220 Minn. 155, 157,19 N.W.2d 57, 58 (Minn. 1945). The driver’s duty to exercise reasonable care includes the duty to maintain a reasonable lookout. Peterson v. Minneapolis St. Ry. Co., 236 Minn. 528, 531, 53 N.W.2d 817, 819 (Minn. 1952); Thompson v. Hill, 366 N.W.2d 628, 631 (Minn. App. 1985). Gray argues that whether Breedlove breached his duty to maintain a reasonable lookout constitutes a genuine issue of material fact that remains in dispute. But a driver proceeding through a green light is entitled to anticipate that cross traffic will stop at a red light. Goeden v. Thompson, 289 Minn. 293, 295, 184 N.W.2d 8, 9 (1971).
The undisputed facts establish that Breedlove was driving under the posted limit due to the road conditions. He looked both ways before proceeding on a green light into the intersection. While in the intersection, Breedlove looked south and saw Thompson’s lights. But Thompson collided with Breedlove before Breedlove could react. The officers testified that there was no time for Breedlove to react to Thompson’s car speeding through the red light on Penn Avenue. Patterson, the independent witness, also testified that Breedlove had no time to avoid colliding with Thompson because of Thompson’s speed. By the time Thompson headed into the intersection, the police car’s siren was off, so it warned neither Breedlove nor Patterson of the risk Thompson posed. Likewise, because of the police car’s distance from the intersection and its location on the hill, the police car’s lights also were not visible to Breedlove. Gray offers no evidence to the contrary, merely asserting, without evidentiary support, that Breedlove “should have had the time and ability” to react to the impending accident. We are mindful of the tragic injuries to Gray and her daughter caused by the collision. But the record before us supports the district court’s conclusion that summary judgment is warranted by the law governing this case. Because the record does not contain any evidence that Breedlove breached his common-law duty of care, the district court did not err in entering summary judgment in favor of Breedlove and his mother.
 The officers testified in their depositions that the manner in which certain cars are stolen makes it impossible to turn off a car’s high beams. The car was subsequently determined to be stolen.