This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1782

 

 

David Nelson Dropp, Sr., individually and as Conservator

of the Estate and person of David Nelson Dropp, Jr.,

Respondent,

 

Minnesota Department of Human Services,

Plaintiff Intervenor,

 

vs.

 

The County of Stearns,

Appellant,

 

Northern States Power Company d/b/a Xcel Energy, Inc., et al,

Defendants,

 

Brad Joseph Klein, et al.,

Defendants.

 

 

Filed May 10, 2005

Reversed and remanded

Robert H. Schumacher, Judge

 

Stearns County District Court

File No. C7033436

 

 

Wilbur W. Fluegel, Fluegel Law Office, 150 South Fifth Street, Suite 3475, Minneapolis, MN 55402; and

 

Michael A. Bryant, Bradshaw & Bryant Law Offices, 1505 Division Street, Waite Park, MN 56387 (for respondent)

 

Jon K. Iverson, Pamela J. Whitmore, Iverson Reuvers, LLC, 9321 Ensign Avenue South, Bloomington, MN 55438 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant Stearns County challenges the district court's order denying its motion for summary judgment, arguing the negligence claim of respondent David Nelson Dropp, Sr., individually and as Conservator of the Estate and person of David Nelson Dropp, Jr., against it was barred by the doctrines of discretionary immunity and vicarious official immunity and the statute of repose.  We reverse the denial of its motion for summary judgment and remand for the entry of judgment consistent with this opinion.

FACTS

At approximately 2:00 a.m. on December 19, 1999, Dropp, Jr. was riding in the front passenger seat of an automobile traveling west on County State Aid Highway (CSAH) 1 in Le Sauk Township, Stearns County.  Dropp's friend Brad Klein was driving the car, which belonged to Klein's mother.  As he drove, Klein lost control of the car, which ran off the right side of the road and struck a utility pole, injuring both boys. 

            The pole in question – pole 183 – was placed in 1954 by Northern States Power Company, d/b/a Excel Energy, Inc., and has not been moved since.  The pole is located 24 feet from the centerline of the road and approximately four feet from the outside edge of the curb.  The posted speed limit on the road running by the pole is 30 m.p.h.  In 1979, Stearns County authorized reconstruction of the portion of CSAH 1 running by pole 183 in conjunction with the renovation of a nearby bridge.  In 1997, Stearns County authorized a construction project to install curbs and gutters on the portion of CSAH1 next to pole 183.  

            In June 2003, Dropp, Jr.'s father, brought suit on his son's behalf against Stearns County, among others.  Dropp claimed Stearns County had negligently allowed pole 183 to remain where it was originally placed by Excel, thereby breaching its duty to minimize the danger to passing motorists.  In subsequent filings, Dropp specified that the negligence allegation exclusively concerned Stearns County's choice to leave pole 183 in place at the time of the 1997 curb and gutter installation, and that the original placement of the pole in 1954 and the 1979 bridge-and-approach project were not at issue. 

            In May 2004, Stearns County moved for summary judgment, arguing Dropp's claims against it were barred by the doctrines of statutory immunity and vicarious official immunity and the statute of repose.  In support of its motion, Stearns County submitted deposition testimony from Doug Weiszhaar and Mitchell Anderson, who were, respectively, the Stearns County Engineer and Assistant Engineer at the time of the 1997 project.  The state also submitted Anderson's affidavit.

Anderson testified that he directly supervised the 1997 project, which was intended "to provide safer alignment of the road and improve the transportation system."  Both Anderson and Weiszhaar testified that in designing and completing a road improvement project, the supervising county engineers always review the location of utility poles and other fixed objects near the roadway in order to ensure the project's compliance with the Minnesota Department of Transportation's State Aid Operations Rules, Minn. R. 8820 (1995), which establish minimum clear zones between fixed roadside objects and the curb.  Anderson testified that it is the established Stearns County practice to enforce the clear-zone standards mandated by the rules and that the supervising engineers endeavor to provide the safest roadway at the lowest cost to Stearns County.

Both Anderson and Weiszhaar testified that the engineer overseeing road reconfiguration projects is charged with reviewing the location of fixed roadside objects in the construction zone and identifying those that will have to be moved in order to ensure compliance with the clear-zone rule following completion of construction.  Anderson also testified that when the engineer determines a tree on private property will violate the regulation in the finished project, it is removed and the landowner compensated.  Weiszhaar testified that decisions concerning the relocation of utility poles are made on a case by case basis and with regard to several factors, including whether the county can obtain – by purchase, if necessary – permanent-easement or fee-title right-of-way to a new pole location and whether the proposed relocation site can physically sustain a utility pole without ground-reinforcement work such as a ditch slope or a fill slope. 

In the course of his deposition, Anderson indicated on a map which utility poles he had ordered removed and relocated prior to the 1997 project based upon his conclusion that they would violate the clear-zone regulations following completion of the project.  Both Anderson and Weiszhaar testified that they reviewed the project plan before construction began and concluded pole 183 would not violate the regulation after completion; thus, they did not require that Excel move the pole. 

            The district court denied Stearns County's motion.  As to the statute of repose, the court concluded that because that statute by its terms only limits suits involving improvements to real property, and because the utility pole was not an improvement to real property within the meaning of the statute, the statute did not apply.  As to immunity, the court concluded "the County's arguments rest[ed] on mere averments without identifying which Stearns County official or county entity made decisions and what function the decision maker was performing at the time."

D E C I S I O N

When reviewing a grant of summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court erred as a matter of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Denial of a motion for summary judgment is immediately appealable when the order denies summary judgment based on statutory or official immunity.  Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996).  The application of immunity is a question of law, which this court reviews de novo.  Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

Stearns County argues the district court erred by concluding it was not immune from suit under the doctrine of statutory immunity.  Statutory, or discretionary, 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. § 466.03, subd. 6 (2004).  Protected discretionary conduct consists of planning-level actions that concern "questions of public policy, that is, the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy."  Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988).  Unprotected operational-level conduct involves the ordinary, day-to-day operations of the government.  Id

In determining whether discretionary immunity applies, "[t]he critical inquiry . . . is whether the challenged governmental conduct involved a balancing of policy objectives."  Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988).  The discretionary function exception must be interpreted narrowly and with due regard for "its underlying purpose – to preserve the separation of powers by preventing courts from passing judgment on policy decisions entrusted to coordinate branches of government."  Zank, 552 N.W.2d at 721.  "The burden is on the state to prove that it is immune under the discretionary function exception."  Nusbaum, 422 N.W.2d at 722 n.6. 

Dropp, relying upon Conlin v. City of Saint Paul, argues that the deposition and affidavit testimony submitted by Stearns County was conclusory and insufficient to establish that Stearns County's conduct with respect to pole 183 was policy-level decision-making.  605 N.W.2d 396 (Minn. 2000).  We disagree.  In Conlin, a motorcyclist was injured when his cycle overturned in loose sand applied by the city in the course of maintenance.  Id. at 399.  The City of Saint Paul offered affidavits of a street-maintenance engineer and a complaint log to show that its failure to place warning signs or take other action during the sealing phase of roadwork resulted from a discretionary decision.  Id. at 402.  The supreme court found that the affidavits and complaint log did not show a policy of not posting warning signs, but a practice of tracking street complaints, writing:  "rather than explaining how and why a decision pertaining to the street sealing project was made and detailing the underlying considerations, the [affidavits] are conclusory [in that they] merely identify generalized concerns . . . without incorporating specific facts demonstrating that a decision was in fact made."  Id. at 402-03.  The court observed it was unwilling to allow "minimal averments in an affidavit to be sufficient evidence of a planning decision."  Id. at 403. 

But unlike in Conlin, the depositions and affidavits here explain in detail the factors county engineers considered in deciding whether and where to relocate utility poles whose proximity to the roadway following construction would violate state clear-zone regulations.  The evidence demonstrates that the process by which engineers made individual determinations concerning pole removal and relocation takes into account both the financial effect of compensating the public for condemnations and purchasing rights-of-way and the financial, practical, and safety considerations related to the additional construction required to relocate poles.  We cannot agree with Dropp's contention that "the government has not provided any evidence as to how it made the decision for which it claims immunity." 

Minnesota courts have repeatedly held that statutory immunity protects a government's road maintenance and inspection procedures if they are based on a procedure that balances policy objectives, such as safety and economic considerations.  See, e.g., Holmquist, 425 N.W.2d at 234-35 (upholding district court's grant of immunity to state regarding plaintiff's claim that state negligently signed road, thereby causing plaintiff's auto accident); McEwen v. Burlington N. R.R. Co., 494 N.W.2d 313, 317 (Minn. App. 1993) (stating decision to delay repainting of road markings after repairs to road was protected because of balancing of limited resources and safety concerns), review denied (Minn. Feb. 25, 1993). 

 Stearns County submitted evidence showing the engineers designed and supervised the 1997 construction project in light of Stearns County policy objectives based upon economic and safety priorities as well as the mandates of the state-aid rules.  We believe that Stearns County has met its burden of demonstrating that it engaged in immune policy-level decision-making, and therefore conclude that Stearns County is entitled to statutory immunity.  Because we conclude Stearns County's conduct is immune from suit under the doctrine of statutory immunity, we do not reach the issues of vicarious official immunity or the applicability of the statute of repose. 

            Reversed and remanded.