This opinion will be unpublished and

may not be cited except as provided by

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








Louis Leustek and Sons, Inc.,





Carlton County,



Filed August 2, 2005

Reversed and remanded

Parker, Judge*



Carlton County District Court

File No. C6-02-000179



David D. Hammargren, Paul T. Meyer, Jennifer A. Thompson, Hammargren & Meyer, P.A., 7301 Ohms Lane, Suite 360, Minneapolis, MN 55439 (for respondent)


Stephen G. Andersen, Isaac Kaufman, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for appellant)


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

U N P U B L I S H E D   O P I N I O N


Appellant Carlton County challenges the district court’s denial of summary judgment, arguing that it is entitled to vicarious official immunity from respondent Leustek and Sons, Inc.’s, claims of negligence by the county’s engineer.    Because the county is immune from negligence claims based on discretionary acts of its engineer, we reverse the district court’s order to the extent that it denied summary judgment on those claims.


The sole issue before this court is whether the county is entitled to vicarious official immunity for its engineer’s decisions regarding the suitability and stability of soils at a highway construction site.[1]

On appeal from 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).[2]  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). 

The county engineer must be entitled to official immunity for the county to be entitled to vicarious official immunity.  See 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).  “Official immunity applies to discretionary decisions made at the operational level.”  Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 656 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).

            Respondent Louis Leustek and Sons, Inc. (Leutek), submitted the winning bid for reconstruction of a stretch of highway in appellant Carlton County.  The reconstruction has been completed.  Leustek brought this action to recover damages and the reasonable value of the additional labor, equipment, material, and services it claims to have provided for the project.  Leustek generally claims that the county owed it a duty to investigate and analyze the site of the project properly, design the project, and prepare its plans and specifications with the care and skill of professional engineers experienced in designing and constructing roads in northern Minnesota, and that the county breached its duty by refusing to correct and remedy its design errors after Leutek advised it of the different conditions encountered on the site.[3]

            Specifically, Leustek contends that the county engineer’s action was ministerial because he was obligated by the contract and the Minnesota Department of Transportation (MNDOT) specifications to remove and replace soils that did not comply.   Leustek argues that the MNDOT specifications “clearly and unequivocally” governed when the soils were to be removed and replaced, making that decision ministerial.  It cites four specifications to show that the engineer had “bright-line criteria” for establishing when soils are unsuitable and unstable and must be removed and replaced. 

            We cannot agree with Leustek’s position that these specifications convert determining soil suitability and stability and choosing the appropriate remedy for unsuitable or unstable soil conditions into ministerial acts.  Neither the sections cited by Leustek nor the other provisions in the specifications define the terms “unsuitable” and “unstable” in “absolute, certain, and imperative” terms, giving rise to a specific duty based on “fixed and designated facts.”  See id.  In contrast, the sections cited by Leustek provide for discretionary actions and decisionmaking on the part of the engineer, including approving equipment and determining whether “appreciable” displacement of the underlying soils has occurred, whether the soil moisture content allows proper compaction, and whether “rutting or displacement of the roadbed will occur.”  Myriad other specifications, similarly, place vast discretion in the engineer to make decisions for and changes to the project.

            Following the provision that submission of a bid is “conclusive evidence that the bidder has investigated the site and the Contract documents, and is satisfied with the conditions to be encountered in performing the work and the Contract requirements,” the contract states that the “Engineer has authority to administer the Contract, rule on apparent discrepancies, fulfill intentions, and allow for construction needs in the performance and completion of the work. . . .  The Engineer will decide all discretionary matters as they arise.”  By the terms of the contract, the engineer classifies excavation material on each section of the project as the work progresses; the engineer investigates and determines whether the condition is a material change; the engineer is explicitly given broad authority over decisionmaking and interpreting the contract; the engineer is authorized to exercise his engineering judgment; and the engineer designates those soils that are considered unsuitable or unstable with respect to the requirements of the plans.  

            Leustek’s use of its expert to contradict the engineer’s decisions and opinions does nothing to support its position that the specifications contain precise criteria for determining soil suitability or stability.  If anything, the conflicting opinions bolster the argument that soil suitability and stability decisions are not ministerial matters.  Leustek relies on Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 314 (Minn. 1998). (holding that a city inspector implementing an ordinance that all sidewalks “projecting more than one inch above the adjacent slab” be immediately repaired was ministerial).  But Wiederholt is distinguishable: neither the offending condition nor the required action is clear and defined in this case.

            In light of the many provisions reserving the engineer’s authority to make engineering judgments and the lack of provisions setting out certain criteria for making those judgments, there is no basis for a determination that soil stability and suitability were ministerial decisions.  Because these decisions rested within the engineer’s discretion, so did the decision of whether to remove or replace the soil.   The county satisfied its burden to show that the engineer’s actions were discretionary.

Vicarious official immunity is intended to protect government employers from suit based on their officials’ discretionary acts.  Ireland v. Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 272 (Minn. App. 1996), review denied (Minn. Sept. 20, 1996).  “[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.”  Anderson, 678 N.W.2d at 664.  The extension of vicarious official immunity to the engineer’s employer, appellant Carlton County, is a policy question.  See id.   Given the nature of this highway construction, which required detailed plans and specifications, as well as ongoing professional judgments based on changed and discovered conditions, the county relied on the engineer to exercise his discretion at all stages of the project and is entitled to vicarious official immunity.

Reversed and remanded for trial.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1] This court previously determined in a special term order that denial of the immunity defense was properly appealed, but that the appeal on the other issues would be dismissed as “distinct from the immunity issue.”  Therefore, the only issue we decide is whether the immunity defense bars the negligence claims against the county.


[2] Although the district court’s order did not specifically rule on immunity in denying the motion, this court assumes 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).

[3] Leustek focuses its argument solely on the ministerial administration of the contract and fails to identify how the design of the project was ministerial.  Because an issue not briefed is waived, we do not address whether the design was ministerial or discretionary.  See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).