This opinion will be unpublished and

may not be cited except as provided by

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







Joan E. Christensen,


Rainy River Community College,
International Falls, Minnesota, et al.,


Filed September 21, 2004


Wright, Judge


Koochiching County District Court

File No. CX-02-658



Steven A. Nelson, 210 Fourth Avenue, International Falls, MN  56649 (for appellant)


Mike Hatch, Attorney General, Melissa Brettingen, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondents)



            Considered and decided by Wright, Presiding Judge; Randall, Judge; and Kalitowski, Judge.

U N P U B L I S H E D  O P I N I O N




Appellant challenges the district court’s entry of summary judgment in favor of respondent, arguing that respondent’s decision not to repair a sidewalk leading to the main entrance of the college was not protected by the doctrines of statutory or vicarious official immunity.  We affirm. 


Appellant Joan Christensen injured her left knee when she tripped over an elevated slab of concrete in front of the main entrance to respondent Rainy River Community College (Rainy River) in April 2000.  Kip Oveson, the building maintenance foreman at Rainy River, noticed the defect in October 1998, and a yellow stripe was painted along the elevated slab.  In the spring of 1999, Oveson directed the maintenance crew to repaint the fading yellow stripe to serve as a warning about the defect.  Oveson and Allen Rasmussen, the college president, discussed requesting Higher Education Asset Preservation and Replacement (HEAPR) funding from the state to repair or replace the sidewalks on campus.[1]  From 1998 through 2002, Rainy River requested HEAPR funding to repair and replace sidewalks on its campus, but the funding was not approved. 

Rainy River also maintains an emergency repair fund called the Repair and Betterment Fund.  The director of fiscal and administrative services, Brenda Nicholson, and Rasmussen approve allocations from the Repair and Betterment Fund based on Oveson’s recommendations.  After Christensen’s accident, four areas of sidewalk on campus, including the area where Christensen was injured, were repaired with money from the Repair and Betterment Fund. 

In March 2001, Christensen initiated a lawsuit against Rainy River and Minnesota State Colleges and Universities (MNSCU), alleging negligence for failing to repair the defective sidewalk and for failing to warn of an unreasonably unsafe condition.  Rainy River moved for summary judgment based on statutory and vicarious official immunity.  Determining that Christensen’s claim is barred by statutory and vicarious official immunity, the district court entered summary judgment in favor of Rainy River.  This appeal followed. 


On appeal from summary judgment, we determine (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We 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 review questions of law de novo, Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996).  Summary judgment is properly entered when the record establishes that no genuine issues of material fact exist and that a party is entitled to judgment as a matter of law.  Fabio, 504 N.W.2d at 761. 



Whether a government entity is entitled to statutory immunity is a legal question, which we review de novo.  Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).  Statutory immunity grants government entities immunity from tort liability for any claim based on “the performance or the failure to perform a discretionary duty, whether or not the discretion is abused.”  Minn. Stat. § 3.736, subd. 3(b) (2002). 

Discretionary conduct involves planning-level actions that require evaluation of such factors as the financial, political, economic, and social effects of a given course of action.  Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988).  Operational-level conduct, in contrast, involves the ordinary, day-to-day operations of the government.  Id.  Operational-level conduct is not entitled to statutory immunity.  Id.  To determine whether statutory immunity applies, we “identify the precise government conduct being challenged.”  Nguyen v. Nguyen, 565 N.W.2d 721, 723 (Minn. App. 1997) (quoting Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 (Minn.1988)).  Once this conduct is identified, we ask whether it legitimately involves the balancing of public-policy considerations.  Bloss v. Univ. of Minn. Bd. of Regents, 590 N.W.2d 661, 664 (Minn. App. 1999). 

When a government employee simply implements an established policy, the conduct may be protected because the legal challenge is, in effect, to the policy itself.  Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 413 (Minn. 1996).  Even if there is a duty to correct a hazard, a government agency has statutory immunity if its failure to take corrective action involves a planning-level decision.  Nguyen, 565 N.W.2d at 723-24; see also Holmquist, 425 N.W.2d at 232 (“The question is not whether the State’s conduct resulted in a condition posing an unreasonable risk of harm; it is whether the conduct consisted of planning or policymaking decisions (protected) or operational level decisions (unprotected).”); Young v. Wlazik, 262 N.W.2d 300, 311 (Minn. 1977) (“Even if the city had notice that the [crossing] was hazardous, no liability can attach to the city’s failure to close the street, for that decision involves a legislative judgment balancing the risks and convenience the crossing presents.”), overruled on other grounds, Perkins v. Nat’l R.R. Passenger Corp., 289 N.W.2d 462, 466 (Minn. 1979).  A government agency’s use of a priority system for maintenance projects falls within the protections of statutory immunity.  See Riedel v. Goodwin, 574 N.W.2d 753, 756 (Minn. App. 1998) (mowing schedule), review denied (Minn. Apr. 30, 1998); Gutbrod v. County of Hennepin,529 N.W.2d 720, 723 (Minn. App. 1995) (road repairs). 

Christensen contends that the decision to repair the uneven sidewalk was an operational decision and not a policy decision.  Rainy River counters that campus maintenance decisions are based on public policy and economic considerations that fall within the protection of statutory immunity.  The parties agree that repair of the uneven sidewalk required funding from either the HEAPR fund or Rainy River’s Replacement and Betterment Fund. 

To obtain HEAPR funding for a maintenance project, Rainy River must submit to the MNSCU system a request for funding of a prioritized list of projects for completion within the biennium.  MNSCU then prioritizes the funding requests it receives from nearly 50 colleges across the state before submitting a request to the legislature for appropriation.  Finally, the legislature approves funding for some projects and denies funding for others.  MNSCU officials explained, “Although [Rainy River] requested HEAPR funding for sidewalk repairs [from] 1998 through 2002, those requests were not approved in lieu of funding other critical projects.”  Thus, Rainy River did not have discretion to use HEAPR funding to repair the sidewalk.  The record establishes that HEAPR funding is appropriated according to a well-established priority system, which leads us to conclude that the sidewalk-repair decision involved policy considerations.

Similarly, allocations from Rainy River’s Replacement and Betterment Fund involved discretionary considerations approved by the president of the college.  Oveson’s recommendations were prioritized to (1) repair defects that posed a risk of “life safety,” (2) provide preventative maintenance, and (3) reserve the Replacement and Betterment Fund for an unexpected emergency.  Statutory immunity protects public institutions, like Rainy River, that utilize systems to prioritize maintenance projects.  See Riedel, 574 N.W.2d at 756.  The decision to repair the defective sidewalk was governed by economic and public-policy considerations.  Accordingly, the district court correctly concluded that the doctrine of statutory immunity applies here. 



Application of the doctrine of official immunity is a legal question, which we review de novo.  Johnson, 553 N.W.2d at 45.  Official immunity protects government employees who may be subject to liability in the course of performing their duties.  Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997), review denied (Minn. May 20, 1997).  “[A] public official charged by law with duties which call for the exercise of . . . judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.”  Kalia v. St. Cloud State Univ., 539 N.W.2d 828, 832 (Minn. App. 1995) (indirectly quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)). 

Official immunity ordinarily applies when the acts in question are those of a state official.  Carter v. Peace Officers Standards & Training Bd., 558 N.W.2d 267, 271-72 (Minn. App. 1997) (citing Janklow v. Minn. Bd. of Exam’rs for Nursing Home Adm’rs, 552 N.W.2d 711, 716 (Minn. 1996)).  Official immunity operates to protect the official’s acts or omissions, and it further shields the state from vicarious liability.  See Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992) (affording vicarious official immunity to city because police officer’s decision to engage and continue in car chase involved weighing many factors); Ireland v. Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 273 (Minn. App. 1996) (vicarious official immunity protects county when traffic engineer’s decision to place “stop ahead” sign demonstrates exercise of judgment), review denied (Minn. Sept. 20, 1996).  The Minnesota Supreme Court has applied vicarious official immunity to government entities “when failure to grant it would focus ‘stifling attention’ on the official’s performance ‘to the serious detriment of that performance.’”  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998) (quoting Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993)). 

Official immunity, however, only protects acts by government officials that require the exercise of discretion.  Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 220 (Minn. 1998); Wiederholt, 581 N.W.2d at 315.  Unlike statutory immunity, official immunity protects the kind of discretion that is exercised on an operational, rather than a policymaking, level.  Pletan, 494 N.W.2d at 40; Sletten v. Ramsey County, 675 N.W.2d 291, 301 (Minn. 2004).  But ministerial duties are unprotected by official immunity.  Wiederholt, 581 N.W.2d at 316; Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997).  A ministerial duty is one that does not require discretion but is “absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts,” such as an administrative or legislative requirement.  Wiederholt, 581 N.W.2d at 315 (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937)).  “It is inherent in the concept of ministerial duty that the duty must dictate the scope of the employee’s conduct.”  Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 659 (Minn. 2004).  Because the application of official immunity always involves conduct of a government employee, the duty, if any, will most often emanate from a statute, rule, ordinance, or other official standard.  Id. 

Christensen argues that Oveson had a ministerial duty to repair the defective sidewalk.  We disagree.  The decision not to repair the defective sidewalk did not constitute a breach of a “specific duty arising from fixed and designated facts.”  See Wiederholt, 581 N.W.2d at 315.  Rather, the decision was based on discretionary judgments weighing the allocation of resources to address competing needs.  Christensen fails to present any evidence to support her contention that Oveson had a specific duty, by operation of a governing policy, protocol, or rule, to repair the uneven sidewalk.  Accordingly, the doctrine of vicarious official immunity applies. 


[1] HEAPR funding is allocated to specific projects approved by the state and may not be used for unapproved projects.  See Minn. Stat. § 135A.046 (2002).