This opinion will be unpublished and

may not be cited except as provided by

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








Jessica Durdahl,





City of Hastings,



CBS Construction Services, Inc.,

Defendant and Third Party Plaintiff,




Jensen Siding & Construction, Inc.,

Third Party Defendant.



Filed May 17, 2005

Reversed and remanded

Robert H. Schumacher, Judge


Dakota County District Court

File No. C1039401


Thomas E. Gorman, The Thomas E. Gorman Law Office, 1626 Old West Third Street, Red Wing, MN 55066; and


Wilbur W. Fluegel, Fluegel Law Office, 150 South Fifth Street, Suite 3475, Minneapolis, MN 55402 (for respondent)


Pierre N. Regnier, Jana O'Leary Sullivan, Jardine, Logan & O'Brien, P.L.L.P., 8519 Eagle Point Boulevard, Suite 100, Lake Elmo, MN 55042-8624 (for appellant)


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

U N P U B L I S H E D   O P I N I O N


            Appellant City of Hastings challenges the district court's order denying its motion for summary judgment, arguing the court erred in concluding the city was not entitled to vicarious official immunity and material issues of fact precluded summary judgment.  We reverse and remand for entry of summary judgment in favor of the city.


At approximately 4:30 on the morning of June 24, 2001, respondent Jessica Durdahl was riding in the rear seat of an automobile traveling west on Bahls Drive in Hastings.  Brian Robinson was driving; in addition to Durdahl, there was one passenger in the front seat and another in the rear seat next to Durdahl.  Bahls Drive is a two-lane asphalt road in a residential district with a posted speed limit of 30 miles per hour.  As the car entered a gradual curve going approximately 83 miles per hour, it crossed the center line, continued west in the eastbound lane for approximately 300 feet, and struck the rear end of a tractor-trailer parked on the south side of the road.  Both Robinson and the front-seat passenger died at the scene.

Robinson's blood-alcohol level was subsequently determined to have been approximately .20 at the time of the accident.  When the police arrived, they transported Durdahl and the other surviving passenger to the hospital.  The Minnesota State Patrol reconstructionist concluded the primary and secondary causes of the crash were, respectively, the excessive speed at which Robinson was driving and Robinson's inability to control the vehicle due to alcohol consumption. 

            The tractor-trailer in question was parked on Bahls Road in connection with a residential construction project on the adjacent property.  The general contractor for the project was defendant and third-party plaintiff CBS Construction Services, Inc. On approximately June 4, CBS Construction had contacted Hastings Code Enforcement Inspector Rolf Peterson to request permission to park two tractor-trailers on Bahls Drive between June 7 and June 26.  CBS Construction told Peterson the trailers would be loaded with general construction materials – such as metal window fixtures, doors, and siding – that CBS Construction would unload as needed during construction.  CBS Construction informed Peterson it would be "impossible" to place the trailers on the construction site off the roadway because recent "weather" – rain – had rendered the site's surface too soft to support the trailers' weight and because "the work that was being conducted on the roadways and the surfaces [on the site] wouldn't allow the trailers to be on the property.  The surfaces were not such that would have supported the trailers and they were working on grading those surfaces." 

Peterson consulted with the fire marshall, who recommended approving the request provided the trailers contain no flammable materials and not obstruct the circulation of emergency vehicles.  Peterson forwarded the request to William Mesaros, the Hastings Supervisor of Inspections and Code Enforcement, who held final authority to grant the request and with whom Peterson "weighed the possible consequences of granting permission."  The two men concluded that granting permission was reasonable in light of various factors and circumstances, including

the wet and soft condition of the construction site; the silty clay nature of the soil slowing the drying process; the presence of trailers and other necessary vehicles on the then-completed blacktopped portions of the site; the necessity of a nearby location in which to unload construction materials; and the public's desire to limit construction delays.


Both men also believed that Bahls Drive "was wide enough to safely accommodate the trailers and traffic in both directions." 

Mesaros, by affidavit, testified that in assessing the request, he specifically considered that the "construction project had been delayed several times throughout its duration because the site was very muddy" and that "[o]ver the course of the project, the rainwater combined with construction traffic on the site caused the soil to become waterlogged, or 'pumped up' with water[, which] resulted in undriveable conditions on the non-blacktopped portions of the site."  He also stated it was his understanding that locating and driving the trailers on the site would prevent the site surface from drying sufficiently to allow grading, which was necessary to prepare the ground for paving.  Mesaros believed it would not be in "the public's interest [or] safety" to require CBS Construction to park the trailers at a distant location and transport materials from that location to the construction site.

Mesaros concluded the city should grant CBS Construction permission on the condition that CBS Construction place reflective barriers and flashing lights at either end of the trailers.  Peterson contacted CBS Construction to notify them of the conditional grant of permission.  At the time they decided to grant CBS Construction's request, both Mesaros and Peterson were aware of Hastings, Minn. City Code § 8.10, subd. 2, which provides that "[i]t is unlawful to park a semi-tractor or semi-trailer, attached or detached from the other, on any streets or alleys in a residential district, except for the purpose of loading or unloading the same."  Both men testified to their belief that the parking provision authorized the presence of the trailers on Bahls Drive because the trailers were to be loaded and unloaded during construction.

On June 4, Peterson sent a letter to all Hastings Public Safety Department heads informing them that CBS Construction had requested the city's permission to park the two 40-foot trailers on Bahls Drive from June 7 to June 26 and that CBS Construction had agreed to place "flashing barricades around the trailers" and to ensure that emergency access to the Bahls Drive residences would not be obstructed.  There is no allegation that the flashing barricades were ever displaced or not operating properly prior to or at the time of the June 24 accident. 

In July 2003, approximately two years after the accident, Durdahl brought suit against the city and CBS Construction.  As to the city, Durdahl claimed that in granting CBS Construction permission to park the trailer on Bahls Drive, city employees violated both § 8 of the Hastings City Code and Minn. Stat. § 169.35 (2002), which requires that vehicles be parked with their right side closest to the curb.  Durdahl claimed that the ordinance and statute violations contributed both to the June 24 accident and to the injuries she consequently suffered. 

The city filed a motion for summary judgment, asserting immunity from suit based on the doctrine of vicarious official immunity.  The city also moved for summary judgment on causation issues.  The district court denied the motion, finding that "there are genuine issues of material fact sufficient to submit to a trier of fact, that being the Court or a jury, with respect to the motion for summary judgment by the City of Hastings."  The court's order contains no other explanation of its denial of the city's motion, no mention of the asserted immunity defense, no conclusions of law, and no accompanying memorandum of law.


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).  An order denying summary judgment is immediately appealable where the motion denied is based on governmental immunity from suit.  McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 832 (Minn. 1995).  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).  The party asserting immunity has the burden of showing particular facts that indicate entitlement to immunity.  Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 209 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). 

Here, the city's motion for summary judgment asserted vicarious official immunity.  Although the district court's order did not specifically reference immunity in denying the motion, we assume the court considered and rejected the immunity argument.  See Kroning v. Kroning, 356 N.W.2d 757, 760 (Minn. App. 1984) (stating that this court will assume, from nature of relief granted by district court, that it considered and rejected arguments to contrary). 

"[B]ecause official immunity must be extended before granting vicarious official immunity, it is necessary to determine if official immunity was appropriate here."  Meier v. City of Columbia Heights, 686 N.W.2d 858, 863 (Minn. App. 2004), review denied (Minn. Dec. 14, 2004).  "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).  Whereas statutory immunity applies to decisions at the planning or policy level, "official immunity applies to discretionary decisions made at the operational level."  Anderson v. Anoka Hennepin Independent School Dist. 11, 678 N.W.2d 651, 655 n.4 (Minn. 2004).  The purpose of official immunity is to "protect[ ] public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties."  Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988). 

The critical issue in official immunity claims is whether an official's act is protected discretionary conduct or unprotected ministerial conduct.  See Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998).  "A discretionary decision involves individual professional judgment that necessarily reflects the facts of a situation and the professional goal."  Sletten, 675 N.W.2d at 306.  "In contrast, a ministerial duty is one in which nothing is left to discretion; it is absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts."  Id. (quotation omitted). 

"When the job is simple and definite and therefore clearly ministerial, the public employee is not entitled to official immunity.  Furthermore, public officials clearly have a duty to adhere to ordinances and statutes. . . .  An official cannot convert a ministerial decision into a discretionary one by refusing to comply with the mandate contained in a city ordinance."  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998) (quotations and citations omitted); see also Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d at 660 (stating that "ministerial-conduct bar to official immunity arises when the allegation is that a ministerial duty was either not performed or was performed negligently"). 

Vicarious official immunity is intended to protect government employers from suit based upon their officials' discretionary acts:  "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."  Id. at 663-64. "[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 issue before us is whether the grant of permission to CBS Construction to park the trailers on Bahls Road involved operational-level discretion sufficient for common law official immunity.  The city argues that it did because Peterson and Mesaros interpreted the ordinance in light of various factors, including their professional expertise, the facts of the situation, and their professional goal to allow CBS Construction to timely complete the construction without compromising the safety of city residents and motorists.  Durdahl argues the parking ordinance mandates a ministerial duty – the denial of CBS Construction's request – that Peterson and Mesaros failed to perform, thereby losing immunity from suit.  See Waste Recovery Coop. v. County of Hennepin, 517 N.W.2d 329, 333 (Minn. 1994) (holding that duties fixed by requirements of statute or municipal policy are ministerial and not protected by official immunity). 

            We do not find Durdahl's argument convincing.  The parking ordinance in question provides that it "is unlawful to park a semi-tractor or semi-trailer, attached or detached from the other, on any streets or alleys in a residential district, except for the purpose of loading or unloading the same."  Hastings, Minn. City Code § 8.10, subd 2.   The ordinance does not mandate execution of a specific action by city officials in the face of fixed, designated facts, and as such does not create a ministerial duty.  Cf. Wiederholt, 581 N.W.2d at 314, 316 (holding that municipal code provision stating that "it shall be the duty of the City Engineer to immediately repair" any broken sidewalk created ministerial duty); Nelson v. Wrecker Servs., Inc., 622 N.W.2d 399, 402 (Minn. App. 2001) (holding statute mandating that emergency vehicles or police officers responding to calls activate siren and red lights creates ministerial duty and that drivers who breach that duty are not immune from suit). 

            Rather, the parking ordinance establishes a general prohibition subject to an exception whose critical aspects – the meaning of loading and unloading and the duration of the exception – are not defined and require clarification.  We therefore find the cases cited by Durdahl in support of her argument that the ordinance establishes a mandate to act – Waste Recovery Coop., Wiederholt, and Nelson – inapposite because the ordinances in those cases plainly required specific action by named individuals.  The record before us is clear that Peterson and Mesaros – both charged by the city with interpreting and enforcing the municipal code – exercised their expertise and discretion in interpreting and applying the ordinance language to CBS Construction's request.  See Mohler v. City of St. Louis Park, 643 N.W.2d 623, 639 (Minn. App. 2002) (observing that "determinations made by city personnel on the question of whether [given actions] met ordinance requirements involved the exercise of discretion, and did not constitute mere ministerial action"). 

Peterson and Mesaros determined that granting CBS Construction permission to park the trailers for the purposes of loading and unloading would not violate the ordinance and could be safely accomplished provided CBS Construction complied with various safety conditions.  The record demonstrates the decision was reached after considering the surface conditions at the construction site; the desire to expedite construction activity; the feasibility of unobtrusively and safely placing the trailers on the side of Bahls Drive; and alternate courses of action such as placing the trailers far off-site and transporting materials to the site.  Because Peterson and Mesaros, both city employees, exercised their professional judgment and discretion in granting CBS Construction's request, we conclude the city was protected from Durdahl's suit by vicarious official immunity.

We also disagree with Durdahl's contention that the city is not entitled to immunity because Peterson and Mesaros willfully and maliciously violated the parking ordinance by granting CBS Construction permission to park the trailers.  See Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (observing conduct prohibited by "clearly established law or regulation" is willful and malicious and not protected).  Durdahl asserts that the employees' knowledge of the ordinance establishes they acted maliciously, but mere knowledge is insufficient to show malice.  See id.  Durdahl points to no evidence showing either man intentionally violated the ordinance.

            Durdahl argues that disputed material facts exist concerning (1) whether the city actually granted a parking permit to CBS Construction;  (2) the contents of a letter from Peterson to the Hastings City Administrator that Durdahl claims was not produced until the city's motion for summary judgment; (3) whether the real justification for the grant of permission was on-site waterlogging or the need to do blacktopping and curb work on the site; (4) the specific date CBS Construction requested permission to park on Bahls Drive; (5) who actually authorized the parking; (6) whether the trailers were actually used for loading and unloading; and (7) the number of trailers that were actually parked. 

We conclude none of these facts is material to the ultimate issue concerning the city's immunity:  whether the city officials exercised their discretion in granting CBS Construction permission to park the trailers on Bahls Drive during construction.  The facts asserted by Durdahl go to the issue of the city's negligence in granting the permission and concern the city's duty, breach, and causation.  But the issue of the city's negligence is irrelevant to the issue of whether it is entitled to immunity.  See Sletten, 675 N.W.2d at 307 (observing if the district court concludes that officials are "protected by official immunity, the district court would not reach duty of care, special duty, or foreseeability issues").  Durdahl has not asserted disputed issues of material fact precluding summary judgment.  The district court therefore erred in denying the city's motion for summary judgment. 

            Reversed and remanded.