This opinion will be unpublished and

may not be cited except as provided by

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







Betty Ann Benson, et al.,





Itasca County,


State of Minnesota,




Filed May 6, 2003


Anderson, Judge


Itasca County District Court

File No. C0011151


Steven R. Sunde, Sunde, Olson, Kircher and Zender, 108 Armstrong Boulevard South, P.O. Box 506, St. James, MN  56081-0506 (for appellants)


Mike Hatch, Attorney General, Jerome L. Getz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55102 (for respondent State of Minnesota); and


Thomas P. Carlson, Carlson & Soldo, P.L.L.P., 420 Summit Avenue, Suite 300, St. Paul, MN  55102 (for respondent Itasca County)


            Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Anderson, Judge.


U N P U B L I S H E D  O P I N I O N




            This case arises out of a one-car accident that occurred at the intersection of Itasca County Road 19 and State Highway 38.  Appellants challenge summary judgment in favor of respondents arguing that genuine issues of material fact exist regarding their claims that respondents negligently maintained and placed signs on the roads in question.  Because we conclude that the district court properly applied immunity doctrines, we affirm.



            Appellants David and Betty Benson were passengers in a minivan driven by Nancy Ellsworth that was involved in a one-car accident on the evening of August 13, 1999.  Ellsworth drove eastward on Itasca County Road 19 towards a T intersection with State Highway 38, which runs north and south.  The intersection is controlled by a stop sign.  Approaching vehicles are warned of the intersection by a “stop ahead” sign located approximately 1,068 feet west of the stop sign, rumble strips, a “Jct. 38” sign located approximately 721 feet from the stop sign, and a rectangular yellow, double-arrow sign (double-arrow sign) on the east side of State Highway 38 that indicates that the driver must turn either north or south at the stop sign.  There is also a “no-passing-zone” sign located on the right, or south side, of County Road 19, facing the westbound traffic that indicates to motorists turning onto County Road 19 that a no-passing zone begins immediately. 

            Ellsworth did not notice the rumble strips, if she drove over them at all, and did not see any of the signs until she was nearly in the intersection.  Although Ellsworth immediately applied the brakes after recognizing that she was near the intersection, she drove the mini-van through the intersection and collided with a tree.  Appellant Betty Benson sustained severe injuries as a result. 

            The 36-inch stop sign in the southwest half of the intersection is maintained by the Minnesota Department of Transportation (MnDOT).  Appellant David Benson testified that he did not see this or any other road signs near the intersection on the night of the accident.  Ellsworth testified that the double-arrow sign, which was made with high intensity retroreflective sheeting, was not reflective on the night of the accident.  Because of a curve in the road, both the stop sign and the double-arrow sign are not visible to drivers until they are approximately 1,800 feet from the intersection.  After this curve, a driver’s sight line is uninterrupted until the stop sign appears at the intersection.  

            Appellants sued respondents the State of Minnesota and Itasca County.[1]  Appellants allege that the state negligently located the double-arrow sign on State Highway 38 right-of-way, failed to ensure that the double-arrow sign was not defective, and failed to ensure the stop sign was not obstructed.  Appellants also allege that Itasca County was negligent in maintaining County Road 19, by failing to properly locate signs so they were unobstructed by foliage.  

            Respondents filed motions for summary judgment.  The district court granted summary judgment in favor of the state, holding that statutory immunity and vicarious official immunity shield the state from liability.  The district court also granted summary judgment in favor of Itasca County based on statutory immunity and vicarious official immunity.  Appellants filed this appeal of the district court’s summary judgment.



            On appeal from summary judgment, a reviewing court “must determine whether there are any genuine issues of fact and whether the district court erred in its application of the law.”  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (citation omitted).  The applicability of immunity is a question of law, which this court reviews de novo.  Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).  The party asserting immunity has the burden of showing particular facts that indicate entitlement to immunity.  Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 209 (Minn. App. 2001). 

I.          Appellants’ claims against respondent State of Minnesota

            Appellants first challenge the district court’s entry of summary judgment in favor of the state, arguing that because foliage and overgrown vegetation obstructed Nancy Ellsworth’s view of the stop sign, the state was negligent in its maintenance of this intersection.  Second, appellants assert that the placement of the double-arrow sign is not an act entitled to statutory immunity.[2] 

            State officials are immune from liability for performing or failing to perform a “discretionary duty, whether or not that discretion is abused.”  Minn. Stat. § 3.736, subd. 3(b) (2002).  The Minnesota Supreme Court has made a distinction between “operational” and “planning” decisions in defining what constitutes a discretionary act.  Fear, 634 N.W.2d at 210.  Planning decisions involve issues of public policy and are protected discretionary decisions, while operational decisions relate to day-to-day government functions and are not protected.  Id.  In determining whether a governmental act was made on the planning level and thus subject to immunity, “[t]he critical inquiry is whether the conduct involved a balancing of policy objectives.”  Id.  (quotation omitted). 

             The essential purpose of statutory immunity is to “protect government entities from having the judiciary second-guess the important public-policy decisions they are required to make.”  S.W. v. Spring Lake Park Sch. Dist. No. 16, 580 N.W.2d 19, 23 (Minn. 1998).  In order for statutory immunity to apply, the state must establish that the conduct challenged by appellants was of a “public policy-making nature involving social, political, or economical considerations.”  Id. at 22.  The legislature did not intend the exception for discretionary acts to swallow the general rule of liability for public officials negligently performing government operations.  Terwilliger v. Hennepin County, 561 N.W.2d 909, 912 (Minn. 1997).  Accordingly, courts interpret assertions of discretionary immunity narrowly.  Id.; Larson v. Indep. Sch. Dist. No. 314, 289 N.W.2d 112, 121 (Minn. 1979).  

            A.          Foliage obstructions of the stop sign on County Road 19

            Appellants challenge the summary judgment in favor of the state by asserting that because the state has a duty to maintain all state highways, it was negligent in failing to properly remove overgrown foliage that interfered with the view of the stop sign at the intersection of County Road 19 and State Highway 38.  Appellants point to the deposition of Robert Ege, a MnDOT traffic engineer, as support for its negligence claim.  Ege testified that a partially obstructed stop sign, whether by vegetation or by another road sign, would not conform to the Minnesota Manual on Uniform Traffic Control Devices (MMUTCD) or the Minnesota Traffic Engineering Manual.  Appellants therefore argue that in light of the legal duty, the state’s failure to clear such vegetation constitutes negligence.  See McEwen v. Burlington N. R.R. Co., Inc., 494 N.W.2d 313, 317 (Minn. App. 1993) (addressing claims of negligence for failure to maintain markings required by MMUTCD and analyzing connected policy issues), review denied (Minn. Feb. 25, 1993).

            The issue here is not the negligence of the state, but whether its decisions are entitled to immunity.  Appellants admitted by interrogatory that the clearing of foliage approaching the stop sign on County Road 19 was the responsibility of Itasca County because it was in the county’s right-of-way.  Although the state has the duty to maintain its trunk highways, the county has the authority to determine whether any signs on county roads should be removed or whether vegetation needs to be trimmed.  The numerous intersections that would be subjected to the duplication of resources in determining whether the area is safe establishes that the state’s decision not to remove the alleged obstructions along County Road 19 is protected by statutory immunity.  In addition, the MnDOT supervisor for the area, David Marks testified that the state would not duplicate the efforts of Itasca County because of the resulting waste of economic resources.  It is clear that the state has adopted a policy, based on economic justifications, not to perform the county’s work.

            Moreover, although the state admitted that MnDOT employees cleared some vegetation near the stop sign because they assumed it was in their right-of-way,[3] this does not extend the state’s duty to the entire County Road 19 approach in the county’s right-of-way.  Because the challenged policy relied on economic considerations that involved a balancing of policy objectives, the district court did not err in granting the state’s motion for summary judgment on this issue.

            B.         Placement of the double-arrow sign

                        (i)     Statutory immunity

            Appellants assert that the placement of the double-arrow sign on the east side of State Highway 38, centered across from the County Road 19 centerline, is not an act entitled to statutory immunity because the state violated the MMUTCD by failing to install the sign “in line with approaching traffic.”

            Warning of hazards by placing signs is not inherently either discretionary or operational; classification depends on the factors considered in making the decision.  Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994) (choosing whether to warn public of hazards is not inherently discretionary or operational); Holmquist v. State, 425 N.W.2d 230, 234 (Minn. 1988) (placing signs may or may not be discretionary).  In this case, the question critical to statutory immunity is whether the state’s decision to place the double-arrow sign where it did was discretionary, and therefore a protected act. 

            The state has a policy of locating signs such as this on the centerline of the approaching road, and not centering the sign on the approaching lane.  David Marks stated that MnDOT’s decision to place the double-arrow sign where it did balanced the interests of three separate groups.  First, supporting appellant’s argument, the state conceded that if it centered the sign on the middle of the eastbound lane, many drivers seeing a large, yellow sign in front of the lane in which they are driving would be prompted to stop their vehicles, even if they did not see the stop sign.  But second, MnDOT recognized that drivers who may not see the stop sign would benefit from its current placement.  By centering the double-arrow sign in the middle of the eastbound lane, as urged by appellants, the sign itself could become a tool of serious injury as drivers shoot through the intersection and collide with the sign.  Finally, because some of these accidents would knock the sign down and few drivers report knocking over road signs, the state was concerned that the double-arrow sign would not be standing to warn other motorists.  Thus, deciding to center the double-arrow sign in the middle of County Road 19 elevated the interests of the second two groups over the interests of the first group. 

            Adopting or forming a policy on road signage is discretionary if it involves balancing policy factors.  Zank v. Larson, 552 N.W.2d 719, 722 (Minn. 1996).  The type of interest-balancing that the state did here is precisely the type of decision making that statutory immunity is designed to protect.  Because the state appropriately weighed competing interests before making its decision, it is protected by statutory immunity.

            The district court’s holding is also consistent with Steinke, 525 N.W.2d 173.  In that case, the supreme court held that exercising only scientific or professional judgment to implement a policy manual is not a discretionary act.  Id. at 176.  It cannot be said that the state’s decision to locate arrow signs in the center of the approaching lane of traffic was merely carrying out the dictates of a policy manual.  Here, the district court held that not only did the state look to the MMUTCD’s mandate of locating the double-arrow sign “in line with approaching traffic,” but it also exercised independent judgment in balancing competing policy objectives and determining those that should predominate.  Indeed, the MMUTCD is not entirely clear as to what “in line with approaching traffic” means.  Although courts should interpret assertions of statutory immunity narrowly, the judgment exercised by the state in locating the double-arrow sign clearly involved a protected discretionary act. 

                        (ii)    Vicarious official immunity

            The state argues that placement of the double-arrow sign is also protected by vicarious official immunity.  The state asserts that MnDOT traffic engineering specialist Robert Hoppe inspected every sign along MnDOT’s right-of-way in the area, including, presumably, the double-arrow sign, to determine whether signs were properly placed.  The state argues that it is immune because official immunity protects Hoppe and because public policy justifies extending immunity to the State of Minnesota.

            Pursuant to the official immunity doctrine, public officials who are charged by law with tasks that call for the exercise of judgment or discretion are immune from liability for exercising that discretion unless they do so willfully or maliciously.  S.W., 580 N.W.2d at 23.  “Discretion” in the context of official immunity has a broader interpretation than under statutory immunity; “official immunity protects discretion exercised at the operational level rather than at the policy-making level.”  Id.  Therefore, the discretion exercised to confer official immunity must be something more than the performance of ministerial duties, which the supreme court has defined as a duty that is “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.”  Id. 

            Hoppe’s acts would be protected by official immunity had he been sued in his personal capacity.  His inspection of all the area signs cannot be said to be “absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.”  Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988).  Instead, his independent judgment regarding each of the signs was an exercise of discretion at an operational level.  S.W., 580 N.W.2d at 22.

            If a public official is entitled to official immunity for a discretionary act, his or her employer may also be vicariously immune.  Terwilliger, 561 N.W.2d at 913.  The Minnesota Supreme Court has justified extending immunity vicariously by stating:

to grant immunity to the [employee] while denying it to the [employer] would still leave the focus of a stifling attention on the [employee’s] performance, to the serious detriment of that performance.


Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993).  Whether to apply official immunity vicariously is a policy question.  Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992).  Granting vicarious immunity to the employer allows the immunized employee to feel free to exercise his or her independent judgment because the employer will not face tort liability as a result of the employee’s conduct.  Ireland v. Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 272 (Minn. App. 1996), review denied (Minn. Sept. 20, 1996).  A suit against the underlying official in his personal capacity is not a prerequisite for applying official immunity.  Leonzal v. Grogan, 516 N.W.2d 210, 213 (Minn. App. 1994), review denied (Minn. July 27, 1994).

            The district court properly held that vicarious official immunity protects the state from liability for its placement of the double-arrow sign.  State employees weighed competing factors before determining that the sign should be centered on the middle of County Road 19 and Hoppe independently determined that the placement of the sign was proper.  Vicarious immunity shields the state from liability because to do otherwise would chill the judgment of state employees and impair performance of official duties.  Essentially, the purpose of official immunity would be defeated by denying vicarious official immunity for the discretionary acts of MnDOT employees. 

C.                 Notice that the double-arrow sign was tipped or not reflective

            Appellants next argue that the state was negligent because it knew, or should have known, that the double-arrow sign was not straight and was not reflective on the night of the accident. Specifically, appellants argue that the previous complaints from Itasca County residents put the state on constructive notice of the sign’s condition.  Deer Lake resident Lou Johnston complained to George Engstrom, Itasca County’s Highway Engineer, about problems at the intersection with signing and foliage obstructions.  Another local resident, John Hamling, also complained to Itasca County officials that the no-passing sign along County Road 19 obstructed a driver’s view of the stop sign. 

            Although the legal liability of the state as an owner and operator of roadways and other facilities is similar to private persons, its liability is limited “to those cases where the [the state] has notice, actual or constructive, of the defective condition.”  Johnson v. County of Nicollet, 387 N.W.2d 209, 212 (Minn. 1986) (quotation omitted).

            Appellants’ arguments are without merit.  First, complaints by local residents were made to Itasca County employees, not the state.  Appellants did not present any evidence that these county employees ever notified state workers that residents in the area were concerned about the condition of the double-arrow sign or anything else.  Further, these complaints, even if forwarded to state employees, would not have given notice that the double-arrow sign was tipped or not reflective.  Finally, as appellants admitted, the foliage and signage obstructions of the stop sign on Itasca County’s right-of-way were not the state’s responsibility to correct.  Thus, even if the state had constructive notice that this intersection was unsafe due to the inability to see the stop sign clearly, the state was under no duty to remedy that condition.

            Appellants also contend that the automobile parts that their daughter found near the intersection a few days after the accident should have given state employees constructive notice that the intersection was hazardous.  Appellants assert that even though accident debris in the area may not have alerted the state as to a specific problem with the double-arrow sign, constructive notice can be imputed where a prior known defect puts the state on notice of a generally defective condition in the same vicinity.  Jackson v. City of St. Louis Park, 261 Minn. 93, 97, 110 N.W.2d 510, 513 (1961).

            This argument fails to consider, however, that appellants did not prove the state ever knew of the debris.  Thus, without first showing that the state had general knowledge of a defect in the area, appellants cannot show the state had constructive notice that the double-arrow sign was not reflective or was tilted. 

            Finally, debris from car parts near an intersection does not necessarily establish notice that a sign is tilted or not reflecting properly.  In short, because there are numerous explanations for the debris near the double-arrow sign, appellants have failed to show that the state had actual or constructive notice of the sign’s alleged faulty condition.[4]

II.         Appellants’ claims against respondent Itasca County

            Minn. Stat. § 466.03, subd. 1 excludes liability to all municipalities, subject to an exception in subdivision 6 for: “[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.”  Statutory immunity of municipalities is examined under the same analysis as for the state under Minn. Stat. § 3.736.  See Christensen v. Mower County, 587 N.W.2d 305 (Minn. App. 1998) (forming a policy on road signage is “discretionary,” for purposes of statutory immunity, if it involves balancing policy factors; but exercising solely professional judgment as to traffic flow, or similar, non-policy factors, is not discretionary).  Thus, statutory immunity protects Itasca County “from claims arising from performing or failing to perform a discretionary act, regardless of whether it abused its discretion.”  Fear, 634 N.W.2d at 210.  And like the test for municipalities, a discretionary act involves the “balancing of policy objectives such as economic, social, and political factors.”  Id. (quotation omitted).

A.                 Vegetation obstruction

            Appellants first argue that overgrown vegetation and foliage on County Road 19 obstructed eastbound drivers from clearly seeing the stop sign at the intersection with State Highway 38.  They further argue that the testimony of county road maintenance foreman, Gary Barrett, establishes that trimming the vegetation was a ministerial act not entitled to official immunity. 

            But only appellants’ daughter testified that the vegetation obstructed the stop sign.  Further, the pictures taken by appellants’ children days after the accident are evidence that the sign was not obstructed.  Appellant David Benson testified that any obstruction should show up on the pictures and conceded that it does not. 

            Appellants’ reliance on Barrett’s testimony is also misplaced.  After the county received the report of the accident, Barrett testified that he did not notice any obstruction of the stop sign.  But after inspecting the area twice, Barrett decided to cut three or four limbs off the bottom of a tree because he believed that the tree could potentially grow enough to block the sign.  Notably, Barrett did not state that the limbs blocked the sign at the time of appellants’ accident.  In contrast, describing his inspection of the area, he stated, “I didn’t see any problems” and that “[y]ou could see the sign from way back.”

            George Engstrom submitted an affidavit explaining the county’s policy of trimming foliage on their right-of-ways.  Engstrom stated that

[d]ue to the County’s limited financial, manpower and equipment resources, tree limbs, brush and vegetation are only removed where it materially interferes with visibility, when a complaint is received from the public, or in accordance with a pre-determined brushing, trimming, or mowing schedule.  Brushing, trimming and mowing are scheduled on a priority basis based on need and in light of the County’s limited resources.  Also, the adjacent landowners generally do not like to have their trees, etc. unnecessarily cut, trimmed or otherwise damaged.


Engstrom also explained that County Road 19 was inspected both before and immediately after the accident at issue here and it was determined that no trimming was necessary. 

            The county policy is based on economic and practical considerations and therefore protected by statutory immunity.  S.W., 580 N.W.2d at 22.  After the decision to cut particular limbs is made, the actual cutting might be a ministerial task but the policy-level decision of whether to trim, and to what extent, is a policy-level decision entitled to immunity. 

            The district court also held that the county employees’ decision, before the accident, not to trim vegetation in the area was protected by official immunity.  Official immunity protects from personal liability a public official charged by law with duties involving judgment or discretion unless the official acts willfully or maliciously.  Elwood, 423 N.W.2dat677.  Because the employees had to review the policy, inspect the area, and decide whether trimming was warranted, the court held that the decision to not trim the area was a protected discretionary act that involved the balancing of a number of factors.  The district court also held that immunity should vicariously extend to the county. 

            This court should not review a governmental entity’s conduct when it would amount to second-guessing protected policy decisions.  Riedel v. Goodwin, 574 N.W.2d 753, 756-57 (Minn. App. 1998), review denied (Minn. Apr. 30, 1998).  The district court did not err in its conclusions and therefore granting summary judgment in favor of the county on this issue was appropriate.  

B.                 Stop-ahead sign

            Appellants claim that the county’s installation of the stop-ahead sign along the county’s right-of-way was two feet too low and not in conformance with the MMUTCD.  Appellants assert that the MMUTCD has the force of law and that the county’s failure to properly install the sign constitutes negligence.  The district court’s reliance on the official-immunity doctrine to excuse MMUTCD violations, appellants argue, was error. 

            The MMUTCD governs road signage in Minnesota and all counties are required to maintain signs in accordance with its provisions.  Christensen, 587 N.W.2d at 307 (citing Minn. R. 8820.2700, subp. 1C (1997)).  The MMUTCD requires signs in rural districts to be mounted at a height of “at least 1.5 m (5 ft), measured from the bottom of the sign to the near edge of the pavement.”  Minnesota Dep’t of Transp., Minnesota Manual on Uniform Traffic Control Devices, 2A.18 (Dec. 2001).  Appellants argue the stop-ahead sign was unsafe because it was in a ditch, almost two feet lower than required, and where drivers could not see it.  

            Mandatory language in the MMUTCD, however, does not necessarily create a ministerial duty.  Ireland, 552 N.W.2d at 274. 

This Manual describes the application of traffic control devices, but shall not be a legal requirement for their installation.  * * * * [W]hile this Manual provides Standards, Guidance, and Options for design and application of traffic control devices, this Manual should not be considered a substitute for engineering judgment. 


MMUTCD 1A.9 (Dec. 2001).  Therefore, although the manual’s language regarding sign height appears to leave no room for employee discretion, the MMUTCD expresses the desire for employees to continue to weigh numerous factors and use their independent judgment in deciding how to install particular traffic control devices. 

            Here, there is little evidence concerning why the county placed the stop-ahead sign two feet below the height stated in the MMUTCD, as appellants allege.  Engstrom testified that he inspected the placement of the sign both before and after the accident, remarking that the location of the sign was appropriate.  This evaluation of the stop-ahead sign before the accident is entitled to official immunity.  Because Engstrom had to review the sign, inspect the area, and decide whether it was properly and safely placed, the decision not to move the sign was a protected act that involved the balancing of a number of factors. 

            We also conclude that extension of immunity vicariously to the county is appropriate here.  If a public official is entitled to official immunity for a discretionary act, his or her employer may also be vicariously immune.  Terwilliger, 561 N.W.2d at 913.  Public policy favors application of vicarious immunity here to avoid chilling the independent judgment of employees such as Engstrom. 

            While we recognize that Engstrom’s review of the county’s road signs did not explicitly approve of the height of this stop ahead sign, we again note that appellants have proffered no evidence to suggest that the height of the sign here had any bearing on the accident. 

            C.        No-passing-zone sign

            Appellants also argue that the county’s decision to place a no-passing-zone sign on the south side of County Road 19 violated the MMUTCD because it blocked the view of the stop sign at the intersection with State Highway 38.[5] 

            The MMUTCD states

[w]hen used, the NO PASSING ZONE sign shall be installed on the left side of the roadway at the beginning of no-passing zones identified by either pavement markings of DO NOT PASS signs or both.


MMUTCD 2C.32 (Dec. 2001).  County engineers placed the sign approximately seventy-five feet west of the intersection to allow spacing between the stop sign and the no-passing sign.  Although arguably seventy-five feet from the intersection is not “at the beginning of the no-passing zone,” the county weighed other factors, including the possible obstruction of the stop sign, by installing the sign in this location. 

            The choice of where to place the no-passing sign to avoid obstructing the stop sign is discretionary.  While the MMUTCD states it should be placed at the beginning of the no-passing zone, to do so might materially block visibility of the stop sign.  The decision to move the sign away from the intersection by seventy-five feet, and Engstrom’s later approval of such placement, should thus be afforded immunity.  County employees weighed the need of having the sign close to the start of the westbound traffic with the desire to avoid materially obstructing the stop sign.  This weighing of competing factors is protected discretionary decision making and the acts here are entitled to official immunity.  Immunity also vicariously extends to the county to avoid chilling the future independent decision making of county employees as to where to place road signs. 


[1]  Appellants settled their claims against driver Ellsworth and entered into a Pierringer release first approved by the Wisconsin Supreme Court in Pierringer v. Hoger, 124 N.W.2d 106 (Wis. 1963), and recognized by the Minnesota Supreme Court in Frey v. Snelgrove, 269 N.W.2d 918, 922 (Minn. 1978).

[2]  Appellants also argue that the state’s failure to produce a written policy or memoranda to support its assertion of immunity should be weighed against it.  This is clearly contrary to case law.  See Bloss, v Univ. of Minn. Bd. of Regents, 590 N.W.2d 661, 667 (Minn. App. 1999) (“[n]othing * * * interpreting statutory immunity indicates that a governmental unit’s statutory immunity is contingent on whether a policy has been reduced to writing.”).

[3] Although the state maintained the stop sign as if it was in their right-of-way, it actually was not.  MnDOT limits its maintenance responsibilities for signing and vegetation to its right-of-way usually extending 33 feet in each direction from the center of a trunk highway.  After receiving the accident report at issue here, MnDOT employees measured and determined that the stop sign at the southwest corner of the intersection of County Road 19 and State Highway 38 was actually located five feet beyond the state’s right-of-way.  Thus, although the state had no duty to maintain this stop sign, it assumed this responsibility after concluding that the state right-of-way encompassed the area.

[4]  The state also submitted an affidavit from James Miles, an Assistant District Traffic Engineer for MnDOT, who tested the reflectivity of the double-arrow sign.  By road test, Miles stated that both the stop sign and double-arrow sign showed “excellent retroreflectivity on all the passes” and both were “highly visible at significant distances.”  Miles also bench tested the signs with a Retroreflectometer and found both were “highly retroreflective.”  Finally, Miles opined that the slight imperfections in the double-arrow sign had no impact on its visibility and that it would have been “retroreflective within wide limits even if it was out of alignment.” 

[5]  Appellants also assert that they presented sufficient evidence to show that a genuine issue of material fact is in dispute as to whether the stop sign was obstructed.  After the decision to install a no-passing sign near this intersection was made, however, compliance with the MMUTCD may have necessitated a momentary obstruction of the stop sign to approaching drivers.  But because we conclude that county employees exercised appropriate discretion by placing the sign where they did, we need not examine whether this placement was the “best” one available; we hold merely that the placement selected was entitled to immunity.