This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-03-88

 

 

Pouran Shannon Askari,
Appellant,

vs.

Troy David Kemp, et al.,
Respondent.

 

 

Filed August 5, 2003

Reversed

Anderson, Judge

 

Hennepin County District Court

File No. P102001774

 

Paul J. Phelps, Sawicki & Phelps, P.A., 1811 Weir Drive, Suite 275, Woodbury, MN  55125 (for appellant)

 

Mark P. Hodkinson, Tiffany M. Quick, Bassford, Lockhart, Truesdell & Briggs, P.A., 33 South Sixth Street, Suite 3550, Minneapolis, MN  55402 (for respondents)

 

            Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Parker, Judge.[1]

 


U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

Appellant challenges summary judgment in favor of respondents, claiming that the district court erred by not finding that a material question of fact was raised regarding whether respondent police officer activated his squad car’s siren and exercised the required standard of due care while proceeding through a controlled intersection.  Because we agree that material fact issues remain in dispute regarding whether the officer’s siren was on and whether he cautiously entered the intersection, we reverse.

FACTS

 

            On March 28, 2001, appellant Pouran Shannon Askari was traveling south on Beard Avenue in the City of Edina.  Beard Avenue runs north and south.  Respondent Officer Troy Kemp and Officer Richard Campbell were completing a 911 follow-up call in Edina when they received a dispatch call for a personal-injury accident with unknown injuries.  Responding to the second emergency, Kemp drove east on 57th Street.  The intersection of 57th Street and Beard Avenue has a stop sign facing both east and westbound traffic, but it has no traffic-control devices for north-south vehicles.  As Kemp approached the stop sign, he slowed his speed to approximately 28-30 mph, looked to his right (south), changed the pitch of his siren by pushing on the steering wheel horn, and entered the intersection while looking to his left (north).  At the last instant, Kemp saw appellant’s vehicle traveling south on Beard Avenue but it was too late to avoid a collision.

            A primary issue here is whether the squad car’s siren was activated.  Appellant testified that, although she was paying attention, she did not hear any sirens before the collision.  She did, however, see the car’s emergency lights moments before the crash.  In contrast, Kemp testified that he turned on his emergency lights and siren.  In a report, Kemp indicated that Officer Marks, who had been with Kemp at the first emergency, told Kemp that he observed Kemp’s lights and siren on when he passed Marks on the way to the second 911 call. 

            Adrian Berg, a nearby resident, told Edina police at the scene of the accident that although he did not directly observe the crash, he was in his backyard and saw the squad car traveling east on 57th Street just prior to the collision, and the car had its emergency lights and siren on.  He also signed an affidavit attesting to these facts.  But on October 2, 2002, Berg provided a second affidavit that stated, inter alia, that he was inside his house at the time of the accident and not in his backyard as the January affidavit claimed; by the time he went outside to see what the “thud” was that he heard, there were emergency vehicles on site; that by the time he saw the cars involved in the crash, the police car involved in the accident did not have its lights or siren on; and that he could not determine if the squad car had its siren on at the time of the collision because he was inside his house.

            A report from the Minnesota State Patrol Metro Reconstruction Team observed that the weather conditions and visibility were normal for daytime, although the sky was cloudy and there was a light rain/snow mixture falling at the time.  Importantly, the report noted a visual obstruction, a hedge about six feet high, on the west side of Beard Avenue, i.e., the north side of 57th Street.  This hedge runs perpendicular with 57th Street and the report found that it “would obstruct vision to eastbound vehicles on West 57th Street as vehicles approached the intersection on Beard Ave. traveling southbound.”  The report also determined that Kemp was traveling at approximately 28-30 mph at the time of impact and appellant was going about 28-34 mph; both cars were traveling on a 30 mph-speed-limit roadway.  The report concluded that Kemp approached the intersection with “due caution” but that he should have anticipated the possibility of an approaching vehicle from the north on Beard Avenue.  Finally, as to appellant, the report found that she failed to yield to the emergency vehicle, that Kemp’s squad car had all emergency lighting and its siren activated, and that even with the hedge obstruction, appellant should have been able to detect the police car. 

            Appellant brought claims against Kemp and his employer, the City of Edina (Edina) (collectively “respondents”), alleging negligence.  The district court granted summary judgment in favor of Kemp, holding that official immunity shields the officer from liability.  The district court also granted summary judgment in favor of Edina based on vicarious official immunity.  This appeal followed.

D E C I S I O N

 

            On appeal from summary judgment, we “must determine whether there are any genuine issues of material 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).  The applicability of immunity is a question of law, which we review 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), review denied (Minn. Dec. 11, 2001). 

I

            Appellant first argues that a material question of fact exists because there is conflicting evidence as to whether Kemp activated the siren on his vehicle prior to entering the intersection.  Minnesota law requires that officers,

when responding to an emergency call, upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety, but may proceed cautiously past such red or stop sign or signal after sounding siren and displaying red lights, except that a law enforcement vehicle responding to an emergency call shall sound its siren or display at least one lighted red light to the front.

 

Minn. Stat. § 169.03, subd. 2 (2002).  Because state law requires an emergency situation and activation of both siren and lights, appellant claims that Kemp was not permitted to proceed through the stop sign on 57th Street without stopping.

            The district court found that Kemp’s discretionary decision to enter the intersection of 57th Street and Beard Avenue was made under emergency conditions and within the scope of his official duties.  Official immunity shields Kemp from liability, the district court held, because “all evidence” supports the conclusion that he had his lights and sirens activated and that he slowed his car’s speed before proceeding into the intersection. 

            Under the official-immunity doctrine, public officials charged by law with tasks calling for the exercise of judgment or discretion are immune from liability in exercising that discretion unless they commit a willful or malicious wrong.[2]  S.W. v. Spring Lake Park Sch. Dist. No. 16, 580 N.W.2d 19, 23 (Minn. 1998).  “Official immunity protects public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties.” Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997).  The main issue when a defendant claims official immunity is whether the public official’s acts were discretionary or ministerial.  Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998).  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 execution of a specific duty arising from fixed and designated facts.”  Id. 

            Police responses in situations similar to the present circumstances constitute emergency circumstances to which official immunity usually applies.  Id. at 923-24; see Nelson v. Wrecker Services, Inc., 622 N.W.2d 399, 401 (Minn. App. 2001) (holding that police responses like the one at issue constitute emergency situations in which official immunity normally applies); see also Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn.1992) (holding that when an official must make instantaneous decisions often on the basis of incomplete information, “[i]t is difficult to think of a situation where the exercise of significant, independent judgment and discretion would be more required.”).  Nelson held that Minn. Stat. § 169.03, subd. 2, imposes a ministerial duty on drivers of emergency vehicles to activate their lights and sirens.  622 N.W.2d at 401-03.  The failure of an emergency vehicle

to use sirens and lights when passing through a stop sign is more than mere negligence; it destroys a claim of privileges and rights arising out of an emergency.

 

Id. at 402.   Thus, if Kemp did not activate his emergency siren before proceeding through the intersection, it was an unprivileged act, not entitled to official-immunity protections.  See id. at 403 (holding that “immunity may be dependent on ministerial duties”).

            The district court’s conclusion that “all evidence” supports a finding that Kemp’s lights and siren were on is erroneous.  Both appellant and Adrian Berg, a nearby resident, testified to the contrary.  While this evidence is hardly overwhelming, even if the record might lead to the conclusion that it is unlikely that appellant will prevail at trial, that fact alone is insufficient to deny appellant her day in court.  Dempsey v. Jaroscak, 290 Minn. 405, 410, 188 N.W.2d 779, 783 (1971).  Respondents point to allegedly inconsistent statements made by Berg as to whether the lights and siren were, or were not, activated at the time of the collision.  Fundamentally, the jury will need to decide whether Berg’s testimony at trial is credible and “evaluation of a witness’s credibility should be reserved for trial and not for summary judgment.”  Hanson v. Brothers & One, Inc., 491 N.W.2d 292, 295 (Minn. 1992).

Similarly, the jury will have to determine whether the siren was, in fact, not on and this was the reason appellant did not hear it or if, as respondents argue, the siren was on and appellant simply did not hear it.  This is a fact question material to the disposition of this case and cannot be decided on summary judgment.

            Two cases that respondents cite in favor of their argument, Hogle v. City of Minneapolis, 193 Minn. 326, 258 N.W. 721 (1935), and Markle v. Hasse, 245 Minn. 520, 73 N.W.2d 362 (1955), actually support sending the siren question to a jury.  In Hogle, the supreme court held that a jury question was presented as to whether a police car’s siren was sounded.  193 Minn. at 328, 258 N.W. at 722.  The court found that there was sufficient evidence to uphold the jury’s determination that the siren was not sounded.  Id.  Although the jury reached an opposite conclusion in Markle, that an emergency siren had been sounded on a fire truck, Markle was consistent with Hogle in holding that the question “was properly left to the jury.”  Markle, 245 Minn. at 524, 73 N.W.2d at 365.

            On appeal from a summary judgment, we “must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993), and we must assume the credibility of appellant’s evidence.  See Howie v. Thomas, 514 N.W.2d 822, 825 (Minn. 1994) (holding credibility determinations, weighing the evidence, and drawing inferences from the facts are jury functions).   Because there is a genuine dispute of material fact regarding whether Kemp activated his siren before he proceeded through the intersection, and because appellant has offered some evidence to rebut respondents’ assertion that Kemp had the siren on, we reverse and remand this case for trial.

            Appellant also argues that a disputed issue of material fact exists as to whether Kemp acted reasonably by traveling through the stop sign despite having an obstructed view of oncoming traffic.  According to appellant, had Kemp slowed his vehicle down sufficiently and looked in both directions prior to entering the intersection, he would have seen appellant’s car and avoided the accident. 

            The record indicates that Kemp slowed his vehicle down to between 28 and 30 mph and that he looked both ways before proceeding through the intersection.  But if the fact-finder determines that Kemp’s siren was not on, a fact issue would also be presented as to whether failing to do so satisfies the statutory requirement to “slow down as necessary for safety” and “proceed cautiously” through the controlled intersection.  Minn. Stat. § 169.03, subd. 2.  Because we leave to a jury’s determination whether Kemp’s siren was activated, we also necessarily must leave to the fact-finder the question of whether the failure to activate a siren, when required to do so by statute, caused the injury suffered by appellant. 

II

            Respondent City of Edina argues that vicarious official immunity shields it from liability for Kemp’s actions.

            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). 

            Because we have reversed and remanded for trial the issue of whether the siren was activated, it is premature to determine whether vicarious official immunity applies to protect the City of Edina.  Accordingly, we reverse the judgment of the district court granting summary judgment to the City of Edina on the issue of vicarious official immunity.

            Reversed.



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

 

[2]  The district court found that Kemp’s actions were not willful or malicious and appellant neither alleges otherwise nor disputes the district court’s conclusions.