This opinion will be unpublished and

may not be cited except as provided by

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






James Averbeck,





City of Minneapolis, et al.,



Filed April 27, 2004


Kalitowski, Judge


Hennepin County District Court

File No. PI 03-2896


Charles T. Hvass, Jr., Hvass, Weisman & King, 100 South Fifth Street, Suite 450, Minneapolis, MN 55402 (for respondent)


Jay M. Heffern, Minneapolis City Attorney, Edward A. Backstrom, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402-2453 (for appellants)


††††††††††† Considered and decided by Kalitowski, Presiding Judge; Anderson, Judge; and Minge, Judge.

U N P U B L I S H E D†† O P I N I O N


Respondent James Averbeck sued appellants City of Minneapolis and city police officer Roderic Weber, claiming that the police officer committed an assault and battery when he intentionally slammed respondentís truck door, injuring respondentís shoulder and thumb.† The district court denied appellantsí motion for summary judgment on immunity grounds, finding there were disputed factual issues regarding whether the officerís conduct was willful or malicious.† Appellants contend that the officerís alleged actions cannot, as a matter of law, constitute willful or malicious conduct.† We affirm.


When reviewing a grant of summary judgment, this court determines 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).† When reviewing a denial of summary judgment based on a claim of immunity, we presume the truth of the facts alleged by the nonmoving party.† Edina Educ. Assín v. Bd. of Educ. of Indep. Sch. Dist. No 273, 562 N.W.2d 306, 309 (Minn. App. 1997), review denied (Minn. June 11, 1997).† Application of immunity is a question of law that this court reviews de novo.† Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).†


††††††††††† Appellants contend that even if we accept all the facts as alleged by respondent, as a matter of law, the police officer did not engage in malicious conduct.† We disagree.† The starting point for analyzing an immunity question is identifying ďthe precise governmental conduct at issue.Ē† Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998).† Here the parties agree that the conduct in question is the action taken by the police officer in issuing respondent a ticket for obstructing traffic.†

When official immunity is at issue, the conduct in question must be discretionary rather than ministerial for immunity to apply. †Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998).† Here, the parties agree that issuing a ticket for a traffic violation is a discretionary duty to which official immunity would apply.† The parties also agree that if official immunity applies to the officer it would also apply to appellant City of Minneapolis.† But even when the conduct in question is discretionary, if the police officer engaged in malicious or wrongful conduct, official immunity will not bar the officerís liability.† Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997), review denied (Minn. May 20, 1997).† Malice means nothing more than the intentional doing of a wrongful act without legal justification or excuse or, otherwise stated, the willful violation of a known right.Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (quotation omitted).† ďIn the official immunity context, wilful and malicious are synonymous.Ē† Id.†

According to respondent, he and the police officer had an argument about him blocking traffic with his delivery truck.† The officer approached respondentís truck, partially removed his weapon, and asked respondent for his driverís license.† Respondent sat in the cab of the truck with the door open and made a call on his cellular phone.† He remained seated and did not attempt to leave the cab.† Respondent claims that when the officer returned to his truck with a ticket for obstructing traffic, the officer threw respondentís license and the ticket up into the cab of the truck and

planted his feet . . . with the door so his right foot was forward and his left foot back.† And he grabbed that door and slammed it as hard as he could.† He put every bit of energy that that guy had in him, and he slammed the door on me.


Respondent claims to have suffered an injured thumb and a broken shoulder bone as a result of the officerís action.†

††††††††††† Under these facts, we conclude that the district court did not err in determining that ďa police officer should have reason [to] know that assaulting someone is legally prohibited,Ē and that a jury could find that when the officer slammed respondentís truck door hard enough to break respondentís shoulder bone, he intentionally engaged in a wrongful act.† Moreover, under respondentís version of the facts, a jury could find that the officer had no legal justification for this behavior.

We conclude that, in finding that the facts were in dispute and that a jury could reasonably find that the officer acted maliciously based on respondentís version of the facts, the district court properly denied appellantsí motion for summary judgment.