This opinion will be unpublished and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
Michael Schroeder and Kimarie Schroeder, for the heirs and next of kin of
Joshua Schroeder, decedent,
St. Louis County, et al.,
Filed October 12, 2004
St. Louis County District Court
File No. C6-02-600619
Patrick M. Spott, Jeremy M. Hurd, Orman Nord & Spott Law Office, 1301 Miller Trunk Highway, Suite 400, Duluth, MN 55811 (for appellants)
Alan L. Mitchell, St. Louis County Attorney, Shaun R. Floerke, Assistant County Attorney, 100 North 5th Avenue West, Suite 501, Duluth, MN 55802-1298 (for respondents)
Considered and decided by Harten, Presiding Judge; Kalitowski, Judge; and Anderson, Judge.
G. BARRY ANDERSON, Judge
Joshua Marcus Schroeder was fatally injured in a collision between his vehicle and a road grader on November 9, 2000. Thereafter Schroeder’s next of kin filed a wrongful death action against respondents. Respondents moved to dismiss the action based on statutory immunity, official immunity, and vicarious official immunity. The district court granted respondents’ motion in all respects. We affirm.
On November 9, 2000, Joshua Schroeder was traveling north on County State-Aid Highway 29 in St. Louis County when he collided with a road grader that was participating in a highway reclamation project. Schroeder died as a result of the collision. At the time of the accident, the grader was operating in the northbound lane, against the flow of traffic.
Stephen Ario, the grader operator, began work at 8:00 a.m. on November 9, 2000. Ario had been assigned multiple roads to grade that day, and he determined Highway 29 would be the last road he would grade on that day. Upon reaching Highway 29 between 3:00 p.m. and 4:00 p.m., Ario began his first cutting pass heading north in the northbound lane of traffic. He then proceeded to feather the windrow he created on his first pass across the southbound lane while traveling south. After completing this second pass, Ario determined that two more passes were necessary to properly grade the road. Thereafter, Ario began traveling north in the southbound traffic lane, feathering the windrow from his first two passes. This was done in order to avoid creating a large windrow on the western edge of the road, which could cause severe problems in the future. Ario then began making his fourth and final pass by feathering the windrow while traveling south in the northbound lane.
Shortly before the collision, Ario noticed Schroeder’s car rounding a corner approximately a half-mile from the grader. Ario began to weigh his options as he realized Schroeder’s car was not slowing, ultimately determining that the driver needed more time to react, so he stopped the grader. Schroeder continued driving towards the grader while straddling the windrow created on the grader’s third pass, ultimately driving head on into the grader. The impact killed Schroeder.
St. Louis County’s grader operators typically grade over the centerline and against traffic. While St. Louis County has not adopted this policy in writing, Joe Varda, then the county maintenance engineer, discussed potential ramifications for operating over the centerline when performing road maintenance in a memorandum dated November 13, 1985. The memorandum specifically discussed the permissibility of maintenance vehicles crossing the centerline while working on a road, as well as the exemptions set out in Minn. Stat. § 169.03, subd. 6 (1984),  which permit such actions. Before the memorandum was distributed to employees, the department head and county engineer reviewed and authorized the content of the memorandum.
A review of the typical grading process occurred in 1998 when Assistant St. Louis County Attorney, Michael Dean, sent a letter to the public works department expressing concern over the process. After receiving this letter, David Skelton, the Deputy Public Works Director, and Richard Hansen, St. Louis County Engineer, contacted other counties and the Minnesota County Engineers Association to seek advice on grading against traffic and over the centerline.
Skelton also called a meeting with the six district road superintendents. The superintendents participate in all aspects of the operation including employment issues, budget, day-to-day project decisions and allocation of resources, and oversight of all activity within the district. The superintendents also provide input into all policy discussions, decisions and directives. At this meeting, Skelton and the superintendents discussed grading over the centerline, the use of pilot vehicles, deadheading, advance road signing, public service announcements, review of other counties’ procedures, as well as approaching the legislature regarding this issue. But Skelton and the superintendents “determined that grading over the centerline or in the opposing lane is unavoidable given our budget, staffing, equipment, the amount of work which must be done and the nature of the work.”
Following this meeting, Skelton discussed the conclusion with Hansen, and both reviewed a video and a pamphlet from the Federal Highway Administration and National Association of County Engineers regarding the grading of roads. Both the video and pamphlet suggested grading roads against the flow of traffic in order to ensure adequate distribution of aggregate on the roadway. After this exhaustive review, Skelton and Hansen responded to Dean that the “unwritten policy” was appropriate and would continue, citing the extra cost and time associated with deadheading.
A district court’s decision regarding governmental immunity is immediately reviewable by this court. Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn. 1986). On appeal from summary judgment, this 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). 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); Dokman v. County of Hennepin, 637 N.W.2d 286, 292 (Minn. App. 2001), review denied (Minn. Feb. 28, 2002). The party asserting immunity has the burden of showing particular facts to demonstrate that immunity applies. Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 209 (Minn. App. 2001).
Minn. Stat. § 466.02 (2002) establishes municipal liability for tort claims. But there are exceptions to this liability. See Minn. Stat § 466.03, subd. 1 (2002) (“[E]very municipality shall be liable only in accordance with the applicable statute and where there is no such statute, every municipality shall be immune from liability.”). Here, respondents maintain they are entitled to statutory immunity because appellants’ claim is based on the failure to exercise or perform a discretionary function or duty. See Minn. Stat. § 466.03, subd. 6 (2002) (providing immunity 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”). The application of this exception, and others, to Minn. Stat. § 466.02 is referred to as statutory immunity.
Statutory immunity shields municipalities from claims arising out of the performance of discretionary duties. Larson v. Indep. Sch. Dist. No. 314, Braham, 289 N.W.2d 112, 119 (Minn. 1979), overruled on other grounds by Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651 (Minn. 2004). But the same immunity does not apply to mere ministerial duties. Id. A discretionary act may include planning decisions, but not operational decisions. Id. at 120. Planning decisions concern public policy issues, and are thus protected under statutory immunity. Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 210 (Minn. App. 2001). Operational decisions, on the other hand, are not protected by statutory immunity because these decisions relate only to the day-to-day functions of government. Id.
Implementing statutory immunity prevents courts from second-guessing the policy decisions of other governmental entities. Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 718 (Minn. 1988). The supreme court stated, “If a governmental decision involves the type of political, social and economic considerations that lie at the center of discretionary action, including consideration of safety issues, financial burdens, and possible legal consequences, it is not the role of the courts to second-guess such policy decisions.” Watson by Hanson v. Metro. Transit Comm’n,553 N.W.2d 406, 412 (Minn. 1996). Thus, this court must first determine if the actions in question were planning or operational decisions. Larson, 289 N.W.2d at 120. The key to addressing this inquiry is “whether the conduct involved a balancing of policy objectives.” Fear, 634 N.W.2d at 210 (quotation omitted). Appellants maintain that the process of grading roads against the flow of traffic is an operational decision, and it is therefore not protected by statutory immunity.
We conclude respondent county is immune because the county-wide approval of the grading process is of a “public policy-making nature involving social, political, or economical considerations.” S.W. v. Spring Lake Park Sch. Dist. No. 16, 580 N.W.2d 19, 22 (Minn. 1998). Minnesota courts have consistently upheld statutory immunity related to planning-level decisions regarding road signage and maintenance. See, e.g., Holmquist v. State, 425 N.W.2d 230, 234-35 (Minn. 1988) (upholding district court’s grant of immunity to state regarding plaintiff’s claim that the state negligently signed a road, thereby causing plaintiff’s auto accident); Riedel v. Goodwin, 574 N.W.2d 753, 756 (Minn. App. 1998) (citing Watson, 553 N.W.2d at 412, in that the “mowing, inspection, and sight-distance policy [related to traffic intersections] is the type of conduct that the legislature intended to remove from the judicial sphere because it involves the balancing of safety and economic considerations.”), review denied (Minn. Apr. 30, 1998); Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995) (holding the county’s decision to adhere to its repair policy in light of a known problem was protected by immunity because it involved the balancing of risks and costs); McEwen v. Burlington N. R.R. Co., Inc., 494 N.W.2d 313, 317 (Minn. App. 1993) (stating the decision to delay repainting of road markings after repairs to the road was protected because of the balancing of limited resources and safety concerns), review denied (Minn. Feb. 25, 1993); Hennes v. Patterson, 443 N.W.2d 198, 202-04 (Minn. App. 1989) (holding the removal of ice and snow was within the planning-level of a discretionary act because it involved the balancing of public and worker safety, budget constraints, and equipment availability), review denied (Minn. Sept. 15, 1989).
CSAH 29 is reconstructed, improved, and maintained by St. Louis County. Minn. Stat. § 162.02, subd. 1 (2002). During the course of improving and maintaining CSAH 29 and other roads, St. Louis County established, and Ario implemented, a policy based on balancing safety and economic considerations, thus establishing a planning decision at the policy-making level. While St. Louis County did not memorialize in writing the policy to grade over the centerline and against the flow of traffic, such a defect will not prejudice the application of immunity. See Bloss v. Univ. of Minn. Bd. of Regents, 590 N.W.2d 661, 666-67 (Minn. App. 1999) (holding statutory immunity is not contingent on whether a policy has been reduced to writing).
The undisputed facts support the existence of an unwritten policy: (1) St. Louis County’s extensive history of grading over the centerline and against the flow of traffic; (2) Joe Varda’s 1985 memorandum addressing the permissibility of maintenance vehicles to cross the centerline while working on a road; (3) Varda’s 1985 memorandum was authorized by the department head and county engineer prior to distribution; (4) in 1998, at the request of Dean, Skelton and Hansen conducted a thorough review of the unwritten policy, including reviewing material from the Federal Highway Administration and National Association of County Engineers regarding the blading of roads; and (5) Skelton and the six road superintendents ultimately determined that grading over the centerline was unavoidable given the county’s budget, staffing, equipment, as well as the nature and amount of work to be performed.
Based on the balancing of safety and economic considerations related to grading roads over the centerline and against the flow of traffic, St. Louis County officials determined its existing unwritten policy should remain in effect. It is not the duty of this court to second-guess this type of decision. Because St. Louis County established a policy to grade over the centerline based on political, social, and economic factors, the district court properly applied statutory immunity to St. Louis County.
B. Stephen Ario
While it appears the district court did not grant respondent Ario statutory immunity, we believe it necessary to briefly address the topic because of the complex nature of the inter workings of statutory, official, and vicarious official immunity.
In Rico v. State the supreme court determined the official and the state were bothentitled to statutory immunity based on Minn. Stat. § 3.736, subd. 3(b) (1990). 472 N.W.2d 100, 108-09 (Minn. 1991). But this application of statutory immunity is only appropriate in relatively narrow circumstances. Rico, 472 N.W.2d at 104. The supreme court determined that in the limited instance of firing an unclassified policy-making official, statutory immunity applied to the Commissioner of Veterans Affairs because it was necessary for the commissioner to balance policy considerations before terminating Rico’s employment. Id. at 105-06. Additionally, the balancing of policy considerations extended to the state because it was necessary for other officials above the commissioner to weigh the same policy considerations before determining that termination of employment was appropriate. Id.
Statutory immunity only applied to the commissioner, acting as an official of the state, because he was directly involved in the discretionary policy-making consideration to fire Rico in addition to his status as the individual who actually did the firing. Id. at 104-06. The supreme court stated:
We have recognized that decision-making at the planning level usually involves policy considerations and thus is entitled to protection. Sometimes implementation of the policy also involves balancing of policy considerations. “More often, however, implementation simply involves applying an established policy to a particular fact situation and is, therefore, unprotected * * *.” Holmquist, 425 N.W.2d at 234.
Id. at 104 (emphasis added).
Here, the district court implicitly determined statutory immunity was not applicable to Ario. The record does not indicate he was involved at any time in the policy-making decision to grade over the centerline. Similarly, it is undisputed that grading against traffic has been the policy of St. Louis County for decades and long before Ario became employed by the county. Ario simply implemented the county’s policy to particular fact situations, and is therefore not entitled to statutory immunity. Minn. Stat. § 466.03, subd. 6 (2002); Rico, 472 N.W.2d at 104; Holmquist, 425 N.W.2d at 234.
“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). Appellants suggest that Ario’s actions were ministerial in nature, or in the alternative, that he acted negligently, thus barring the application of official immunity. But appellants’ assertions are invalid in light of Anderson, 678 N.W.2d 651.
Anderson has significantly altered the analysis of official immunity. See generally id. (overruling prior applicability of official immunity to ministerial duties). Until Anderson, official immunity was primarily governed by, among other decisions, Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216 (Minn. 1998); Wiederholt v. City of Minneapolis, 581 N.W.2d 312 (Minn. 1998); Terwilliger,561 N.W.2d 909; Elwood v. Rice County, 423 N.W.2d 671 (Minn. 1988); and Larson v. Indep. Sch. Dist. No. 314, Braham, 289 N.W.2d 112 (Minn. 1979). Anderson, 678 N.W.2d at 655-56, 660-61. But the supreme court changed its stance on official immunity in relation to ministerial duties with its holding in Anderson. Id. at 661 (stating the court “mistakenly applied statutory immunity standards in [its Larson] analysis”).
At issue in Anderson was the official immunity of a teacher, as well as the vicarious official immunity of the school district. Id. at 654-55. The supreme court stated:
We see no reason for a different result when common law official immunity is at issue [instead of statutory immunity]. Accordingly, we hold that a teacher . . . does not forfeit official immunity because his or her conduct was ministerial if that ministerial conduct was required by a protocol established through the exercise of discretionary judgment that would itself be protected by official immunity.
Id. at 660. The court explained that official immunity applies to ministerial conduct because the lack of immunity could have a chilling effect on employee actions. Id. But the supreme court explicitly stated, “[T]his holding preserves existing case law that denies common law official immunity when the liability is alleged to arise from the failure to perform or from the negligent performance of a ministerial duty.” Id. The supreme court gave three reasons supporting this policy change: (1) a ministerial duty is not established unless the policy actually controls the conduct of the employee; (2) employees are not protected by official immunity unless discretion was exercised in adopting the policy; and (3) official immunity does not apply when an employee fails to perform, or negligently performs, a ministerial duty. Id. at 662.
In Anderson, official immunity applied because the teacher was properly acting in accordance with an established policy, even though his actions were ministerial in nature. Id. at 663. Thus, the supreme court expanded the application of official immunity to include ministerial duties, unless an employee fails to perform, or negligently performs, such a duty. Id. at 662-63. Instead of holding lower-level employees responsible for the flaws in judgment and discretion of their supervisors, Anderson shifts the focus to the policy itself, not the implementation of the policy. See id. at 660; see also Nusbaum, 422 N.W.2d at 723 (holding a challenge to employees’ application of a policy is a challenge to the policy itself, not the conduct of the employees).
Here, Ario was simply carrying out the policies established by St. Louis County. Ario would be entitled to official immunity under the old Larson standard if he had been involved in the judgment-and-discretion stage of planning these policies, but not if he were carrying out mere ministerial duties. Larson, 289 N.W.2d 112. But Anderson dramatically changes this situation. Now, employees entitled to official immunity under Larson and similar cases are still entitled to protection, but those employees not involved in the adoption of policies are also entitled to official immunity if they acted in accordance with a policy and were not negligent. Thus, because we have previously determined St. Louis County established a policy to grade over the centerline based on political, social, and economic factors, thereby entitling it to statutory immunity, we need not address whether Ario engaged in a discretionary act, only whether he negligently performed, or failed to perform, a ministerial duty. Anderson, 678 N.W.2d at 662-63.
Appellants assert that beyond operating the grader over the centerline, Ario was negligent when he stopped the grader while facing south in the northbound lane of traffic and when he decided not to move the grader into the southbound lane of traffic as Schroeder’s vehicle approached. St. Louis County’s policy to grade over the centerline and against the flow of traffic encompasses the operation of a grader in the opposite direction of traffic. To properly carry out this policy, it may be necessary for a grader operator to stop the grader in a lane of traffic, including while the grader is facing the opposite direction of traffic.
Appellants also contend Ario was negligent in failing to activate the lights on the grader. But this claim fails because there is no genuine issue of material fact. While it did not so find, the district court effectively summarized the lack of a genuine issue of material fact in the memorandum incorporated into its order granting respondents’ motion for summary judgment:
It is true there is arguably some dispute as to whether or not Mr. Ario had his headlights on when the accident occurred. He says that he did. A witness who passed him before the accident says the headlights were not on when he passed the grader. He has nothing to say as to their state at the actual time of the accident, however. Both renditions could be correct factually. There is thus no factual dispute at all as of the actual time of impact and even the few minutes just before the accident. As the [c]ourt understands the state of the record, the witness relied upon by plaintiffs lacks foundation to testify one way or the other as to the state of the headlights just prior to and at the time of impact. The evidence appears undisputed that the strobe light was on.
(Emphasis added.) Viewing this evidence in the light most favorable to appellants, we agree with the district court’s assessment of the facts–there is no genuine issue of material fact related to the activation of the grader’s lights. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (“A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.”). Appellants’ speculative assertion that Ario had not activated the grader lights at the time of the accident is insufficient to prevent summary judgment. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (“[T]he party resisting summary judgment must do more than rest on mere averments.”). Summary judgment was appropriate here because appellants have failed to establish by substantial evidence a genuine issue for trial. See Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001) (“That party, however, cannot defeat a summary judgment motion with unverified and conclusory allegations or by postulating evidence that might be developed at trial.”); Russ, 566 N.W.2d at 69-70 (asserting summary judgment is appropriate when no reasonable persons would draw different conclusions from the evidence presented).
Finally, appellants maintain that Ario was negligent when he failed to sound the grader’s horn. But appellants raise this issue for the first time on appeal. Because this issue was not considered by the district court, we decline review. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A reviewing court must generally consider ‘only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.’” (quotation omitted)).
Because there is no evidence to reasonably support an assertion that Ario negligently performed, or failed to perform, any of his required duties, the district court properly granted Ario official immunity.
In addition to official immunity, Anderson also addresses vicarious official immunity. 678 N.W.2d at 663-65. The supreme court stated, “[I]f a public official is found to be immune from suit on a particular issue, his or her government employer will be vicariously immune from a suit arising from the employee’s conduct and claims against the employer are dismissed without explanation.” Id. at 663-64. But the transition from official immunity to vicarious official immunity is not automatic. “[V]icarious official immunity [applies] in situations where officials’ performance would be hindered as a result of the officials second-guessing themselves when making decisions, in anticipation that their government employer would also sustain liability as a result of their actions.” Id. at 664.
Here, Ario’s duties included grading extensive lengths of St. Louis County roads. The county carefully and thoroughly analyzed the road grading policy at issue here and Ario merely followed that policy. Failing to apply vicarious official immunity under these circumstances would vitiate the public policy adopted by the county.
Because Ario was properly granted official immunity, and because the imposition of liability to his employer would unduly inhibit the grading of roads, St. Louis County is entitled to vicarious official immunity. We affirm the district court’s grant of summary judgment.
 The successor to the 1984 statute discussed in the 1985 memorandum was Minn. Stat. § 169.03, subd. 6 (2000), which was in effect at the time of the accident. “Working on highway. (a) The provisions of this chapter [, traffic regulations,] shall not apply to persons, motor vehicles, and other equipment while actually engaged in work upon the highway”.
 “Subject to the limitations of sections 466.01 to 466.15, every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.” Minn. Stat. § 466.02 (2002).
 In response to the supreme court’s decision in Spanel v. Mounds View Sch. Dist.,264 Minn. 279, 281, 118 N.W.2d 795, 796 (1962) (stating the court’s intention to overrule the doctrine of sovereign immunity as applied to “school districts, municipal corporations, and other subdivisions of government”), the legislature abolished sovereign immunity as applied to municipalities and similarly situated entities by adopting Minn. Stat. § 466.03, subd. 6, in 1963. 17 Stephen F. Befort, Minnesota Practice § 12.44 & n.3 (2d ed. 2003). Similarly, “in 1976, the legislature formally abolished the state’s immunity. Minn. Stat. § 3.736 (1976). As the federal government had done when it waived its sovereign immunity, Minnesota included a number of exceptions to its waiver. See, e.g., 28 U.S.C.A. § 2680 (1994); Minn. Stat. § 3.736, subd. 3 (1994).” Janklow v. Minn. Bd. of Exam’rs for Nursing Home Adm’rs, 552 N.W.2d 711, 715 (Minn. 1996).
 Statutory immunity has previously been referred to as both “discretionary immunity” and “governmental immunity.” Janklow, 552 N.W.2d at 715. But the supreme court determined all immunity stemming from Minn. Stat. § 3.736, subd. 3, should be specifically referred to as “statutory immunity” to avoid confusion. Id. at 716. The term statutory immunity also applies to immunity arising from Minn. Stat. § 466.03, subd. 6 (2002), even though such immunity applies to municipalities and other similarly situated organizations as opposed to the state. Anderson v. Anoka Hennepin Indep. Sch. Dist. No. 11, 678 N.W.2d 651, 654 (Minn. 2004); Sletten v. Ramsey County, 675 N.W.2d 291, 297 (Minn. 2004); compare Minn. Stat. § 3.736, subd. 3 (2002) (applying immunity to state policies), with Minn. Stat. § 466.03, subd. 6 (2002) (applying immunity to municipal policies).
 Official immunity is often referred to as “common law official immunity.” 17 Stephen F. Befort, Minnesota Practice § 12.45 (2d ed. 2003).
 Ministerial is defined as a duty that is “absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts.” Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (quotation omitted).