This opinion will be unpublished and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

A04-1275

 

 

In Re: Robert Mark Murphy, et al.,

Appellants,

 

vs.

 

State of Minnesota,

Respondent,

 

City of Kasson, et al.,

Defendants.

 

 

Filed February 1, 2005

Affirmed

Robert H. Schumacher, Judge

 

Dodge County District Court

File No. C502594

 

 

Steven S. Fuller, Fuller Law Firm, 400 South Broadway, Suite 302, Rochester, MN 55904; and

 

Jeffrey A. Hanson, Hanson Law Firm, 402 South Mantorville Avenue, Kasson, MN 55944 (for appellants)

 

Mike Hatch, Attorney General, Melissa Vogt Brettingen, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)

 

 

Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellants Robert Mark Murphy and Pamela Murphy challenge the district court's grant of summary judgment and dismissal of their claim alleging respondent State of Minnesota negligently maintained, inspected, and repaired a highway median strip on which Robert Murphy fell and injured himself. We affirm.

FACTS

In October 2000, Robert Murphy fell and injured his right wrist and shoulder while he was jogging across a concrete highway median in Dodge County. After falling, Murphy concluded he had tripped on a two-inch metal stub protruding from the median; the stub was a remnant from a traffic-sign support. Robert and Pamela Murphy brought an action, alleging the state negligently failed to properly inspect, maintain, and repair the median, thereby creating a risk of harm to pedestrians.

During discovery, the state submitted the affidavit of Larry Kruckeberg, the Minnesota Department of Transportation (MnDOT) transportation operations supervisor for District 6B, the MnDOT transportation network area that includes the scene of Murphy's injury. Kruckeberg, who has been district supervisor since May 2000, oversees the district's signing department; his responsibilities include budget management, personnel deployment, establishing work priorities, and ensuring prompt response to signing-related maintenance emergencies.

Kruckeberg testified that he "schedule[s] District 6B's sign work to accomplish the overall priorities of the District [and that the] first priority is to keep the roadways in a safe condition for drivers . . . [by] implementing MnDOT's sign replacement program." The sign replacement program included both the systematic ongoing replacement of all signs in the district and the repair and replacement of damaged signs on a response-to-complaint basis. As to the systematic replacement, MnDOT was able to install approximately 800 signs annually.

As to the replacement of damaged signs on a response-to-complaint basis, Kruckeberg stated that when he became the District 6B supervisor, he "reviewed the previous oral [departmental] policy of providing maintenance and repair work on a response-to-complaint basis," under which MnDOT learns of felled or damaged signs from the public, law enforcement, or department personnel who observe unreported problems in the course of their scheduled tasks. Kruckeberg testified that "[g]iven the limited personnel resources of District 6B, [he] used [his] judgment and experience in continuing this [existing response-to-complaint] policy."

MnDOT video logs of the subject median demonstrate that the subject sign was standing in July 1995 and was gone as of July 1998. Murphy offered deposition testimony from Ellsworth Gallentine, who served as District 6B supervisor from 1994 until May 2000, and was therefore the supervisor at the time the sign was missing. Gallentine testified that as a supervisor he expected his workers to report any missing or damaged signs they observed while driving to and from regularly scheduled tasks. He also testified that although he never received a report the subject sign was damaged or missing, the department did receive a report in January 1994 that an adjacent stop sign was damaged and ordered the stop sign replaced. Gallentine also stated that during his tenure as district 6B supervisor, he believed the median was on a township road, and not a state road, and was therefore outside MnDOT's jurisdiction.

The state moved for summary judgment based on statutory and vicarious official immunity. The district court granted the motion on both grounds and dismissed the complaint.

D E C I S I O N

On appeal from 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. Offerdahl v. Univ. of Minn. Hosp. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). "Summary judgment is appropriate when a governmental entity establishes its actions are immune from liability." Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995). Whether a government entity is entitled to statutory immunity is a legal question, which this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). Government entities are entitled to statutory 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 is characterized by 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). Immunity protects government conduct that "involves the balancing of public policy considerations in the formulation of policy." Id. at 234. A government agency's use of a priority system in allocating available financial and labor resources to best effectuate a policy "constitute[s] planning level conduct, protected by statutory immunity." Watson by Hanson v. Metro. Transit Comm'n, 553 N.W.2d 406, 413 (Minn. 1996).

Here, District 6B supervisor Kruckeberg testified by affidavit that when he became supervisor in May 2000, he considered the response-to-complaint sign-repair policy already in place, weighed available resources and priorities, and decided to continue the existing policy. The district court properly concluded that because the policy involved discretionary decisionmaking, the state was statutorily immune from tort liability for acts performed by Kruckeberg in furtherance of the policy.

The Murphys relying on the affidavit testimony of Kruckeberg's predecessor challenge both Kruckeberg's testimony and the district court's conclusion. The Murphys argue that prior to Kruckeberg's tenure and specifically during the period that the subject sign went missing District 6B maintained an active "inspection policy" that created an affirmative duty to discover and repair broken signs. The Murphys contend that they are therefore entitled to a jury trial on the issue of whether the state negligently failed to discover and repair the broken sign.

We disagree. Although Gallentine did testify that he expected his workers to notice a downed sign should they happen to see one in the course of their scheduled duties, he did not testify as the Murphys maintain that his workers had a duty to actively seek out downed signs. According to Gallentine's testimony, the departmental policy was responsive, not preventive.

In addition, the Murphys imprecisely argue that Gallentine's mistaken belief that the median lay outside of MnDOT's maintenance caused him to negligently fail to have the median inspected. But as Gallentine testified, he enforced a response-to-complaint policy and would not have sent a crew to inspect the median prior to receiving a report, even had he believed the median to lie in his departmental jurisdiction.

Finally, the Murphys' argument that the state had a duty to actively seek out damaged signs is misplaced because allegations of actual negligence have no bearing on whether a government entity enjoys immunity: "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)." Holmquist, 425 N.W.2d at 232. The Murphys are challenging the decision of the sign-department supervisors to provide maintenance and repair services on a response-to-complaint basis. Because that decision was discretionary, the state cannot be held liable in tort for its consequences. See Zaske ex rel. Bratsch v. Lee, 651 N.W.2d 527, 533 (Minn. App. 2002) (holding that even where county employee breaches duty to detect or report downed stop sign, county is protected from suit by statutory discretionary immunity because detection policy "involved a balancing of budgetary, safety, and personnel considerations"), review denied (Minn. Dec. 17, 2002).

The Murphys next argue the district court erred in concluding the state is entitled to vicarious official immunity. "Official immunity is a common law doctrine that protects government officials from suit for discretionary actions taken by them in the course of their official duties." Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn. 2004). "[O]fficial immunity protects the kind of discretion which is exercised on an operational rather than a policymaking level" and which requires more judgment than unprotected ministerial duties, which are "absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts." Id. at 301-02 (quotation omitted). The goal of official immunity is to protect public officials from the fear of personal liability, which might deter independent action and impair effective performance of their duties. Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988).

"Generally, if a public official is found to be immune from suit [based upon official immunity], 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." Anderson v. Anoka Hennepin Indep. School Dist. 11, 678 N.W.2d 651, 663-64 (Minn. 2004). "[V]icarious official immunity [is appropriate] 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.

The district court concluded the sign department supervisor was protected by official immunity when making discretionary operational decisions that required him to balance available resources and determine priorities in maintaining and repairing signs. Because the record demonstrates the supervisor's decisions went well beyond ministerial duties, the district court's conclusion is correct.

The Murphys also argue, citing Olmanson v. Le Sueur County, 673 N.W.2d 506 (Minn. App. 2004), review granted (Mar 30, 2004), that "[g]ranting both discretionary act immunity and official immunity in the same case is logically inconsistent." The Murphys contend that Olmanson stands for the proposition that the same employee's acts cannot be protected by both planning-level immunity and operational-level immunity. The Murphys' reliance on Olmanson is misplaced. There, this court held that although "[o]fficial immunity would protect the county official who makes a discretionary operational decision while implementing the policy established [by the same employee] at the planning level . . . [no such immunity is triggered where] the record does not reveal, and the county does not argue, that any county employee made a discretionary decision in implementing the county's practice" concerning road maintenance. Id. at 517.

Olmanson does not hold, as the Murphys argue, that a single employee cannot be entitled to both discretionary act immunity and official immunity where that employee makes discretionary policy decisions as well as discretionary operational decisions. It merely holds that the government entity must present some evidence that the operational decisions are discretionary. Id. Here, because the state did present such evidence, Olmanson is not apposite. The district court did not err in concluding the state enjoyed vicarious official immunity.

Affirmed.