This opinion will be unpublished and

may not be cited except as provided by

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







Michael Lee Staack,





Independent School District No. 118,




Filed November 22, 2005


Lansing, Judge


Cass County District Court

File No. C4-03-1299



Jason D. Pederson, Fuller, Wallner, Cayko & Pederson, Ltd., 514 America Avenue NW, PO Box 880, Bemidji, MN 56601 (for respondent)


Larry C. Minton, Kimberly J. Stimac, Law Offices of Larry C. Minton, Ltd., 320 East Howard Street, Hibbing, MN 55746 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


Independent School District No. 118 appeals the district court’s denial of its summary-judgment motion asserting statutory immunity from liability for a former student’s claim of negligent supervision.  Because the alleged negligent supervision arises from operational conduct rather than a decision that balances policy objectives, the school district is not statutorily immune from liability.  The school district also seeks  review of the denial of its summary-judgment motion for failure to present adequate evidence to establish foreseeability and proximate cause.  Although the record does not contain a petition for discretionary review or a clear basis for concluding that the parallel issues are inextricably intertwined, it does establish that the district court properly denied summary judgment on this alternative ground because material-fact issues remain on both proximate cause and foreseeability.  We therefore affirm.


Michael Staack, Larry Rice, and Ryan Pound were students in Joseph Akre’s first-hour welding class in the spring of 1997.  On the morning of April 29, 1997, the students watched Channel 1, an academic television news program, for the first ten to fifteen minutes of class.  While the students were watching this program, Akre worked on administrative tasks in his glass-enclosed office, which permitted him to view about ninety percent of the room. 

During the program, while Akre was still in his office, Pound made a disparaging remark to Staack about his truck, and Staack responded by throwing a twelve-inch strip of wood at Pound.  The wood missed Pound and instead hit Rice.  Rice left the classroom and returned about a half-hour later with a Band-Aid on his face.  Akre did not see Staack throw the wood or see Rice leave the classroom.  When Rice returned to class, he told Akre that he left to get a Band-Aid for a cut on his face, but he did not say how he received the cut.  Neither Rice nor Staack said anything to each other or Akre about the incident.

At the end of class, the students walked from the classroom into the adjoining hallway.  As Staack walked down the hallway, Rice came up behind him and said, “Hey, Mike.”  Staack turned around, and Rice immediately punched him in the face and then walked away.  Staack checked the condition of his eye in a mirror, observed face injuries, and went home.  When he arrived home, his father called an ambulance that transported Staack to the hospital. 

The school district’s teacher handbook requires teachers to stand outside their classrooms when students move to and from classes.  Akre, as a shop teacher, is responsible for standing at the end of the hallway to observe the students.  According to his deposition, Akre usually stands outside his classroom at the intersection of two perpendicular hallways, where he could observe three different directions.  He could not recall whether he was standing in that spot on the exact date, but he did not see Rice strike Staack.  The teacher handbook states that a teacher may not allow students to use classrooms without supervision and that a teacher should physically restrain a student who is hurting another.  The student handbook provides that discipline for fighting may range from detention to out-of-school suspension.  Akre acknowledges that he would have disciplined Staack if he had seen him throw the strip of wood.

About six years after the incident, Staack sued the school district for negligent supervision.  The school district moved for summary judgment on the ground that it was immune from liability and, alternatively, that Staack had not established that Rice’s act was foreseeable or that any breach of the school district’s supervisory duty caused Staack’s injuries.  The district court denied the motion for summary judgment on each ground, and the school district appeals.



A district court’s denial of a motion for summary judgment based on statutory or official immunity is immediately reviewable by an appellate court.  Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn. 1986); see also McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832 (Minn. 1995) (recognizing that benefit of avoiding trial is lost if erroneous denial of immunity is not immediately appealable).  The person or entity asserting immunity has the burden to demonstrate that its conduct is within the scope of the immunity’s protection.  S.W. v. Spring Lake Park Sch. Dist. No. 16, 580 N.W.2d 19, 22 (Minn. 1998).  Whether an immunity defense applies to established facts is a question of law subject to independent review.  Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998).  Summary judgment is appropriate only when no material-fact issues exist and either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.

            A municipality, including a school district, is generally subject to liability for the torts of its officers and employees.  Minn. Stat. §§ 466.01, subd. 1, .02 (2004).  This general rule is subject to several statutory exceptions.  See id. § 466.03, subd. 1 (2004) (“Section 466.02 does not apply to any claim enumerated in this section.”).  One of the enumerated statutory exceptions is for liability from “[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.”  Id., subd. 6.  The preservation of governmental immunity for discretionary decisions is rooted in the separation of powers and is aimed at preventing courts from passing judgment on policy decisions entrusted to coordinate branches of government.  Angell v. Hennepin County Reg’l Rail Auth., 578 N.W.2d 343, 345-46 (Minn. 1998).  Exceptions to statutory immunity are construed narrowly.  Zank  v. Larson, 552 N.W.2d 719, 721 (Minn. 1996).

            To review a claim of statutory immunity, we first identify the precise governmental conduct that is being challenged.  Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn. 2000).  The purpose of this analysis is to separate conduct that takes place at a planning level, to which immunity extends, from conduct that takes place at an operational level, to which immunity does not extend.  Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994); Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 718 (Minn. 1988).  In analyzing whether the conduct is planning or operational, the “[t]he critical inquiry . . . is whether the challenged governmental conduct involved a balancing of policy objectives.”  Nusbaum, 422 N.W.2d at 722.  Statutory immunity applies when the acts involve an “evaluation and weighing of social, political, and economic considerations,” but not when the acts involve the application of skills to carry out the established policies.  Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988); Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 210 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

            Staack alleges two instances in which Akre’s conduct amounted to negligent supervision of the students:  Akre’s failure to supervise Staack in the classroom and Akre’s failure to prevent the physical confrontation in the hallway.  The school district argues that these circumstances involve safety and security considerations that are inherently discretionary and thus protected by statutory immunity.  The district court rejected this argument and instead accepted Staack’s analysis that these allegations are aimed at operational decisions rather than policy-balancing decisions.

            We agree with the district court’s evaluation of the challenged governmental conduct.  Both situations involve operational decisions related to the day-to-day functions of the school—not planning-level decisions that balance political, social, and economic factors.  See Zank, 552 N.W.2d at 721 (distinguishing between components of policy-making decisions and policy-implementing decisions).  Although the formulation of a school district’s policy on issues of safety and supervision may be discretionary, the implementation of an established policy is more properly categorized as operational.  See Angell, 578 N.W.2d at 346 (contrasting implementation of policy with formulation of policy).  In supervising the students, Akre was applying his skills and complying with his responsibilities as a teacher, he was not balancing competing social or economic policies.  Akre’s conduct therefore represents the day-to-day implementation of the school district’s policies, not policy formulation.

            The school district argues that Staack’s decision to sue the school district instead of the individual teacher demonstrates that the conduct at issue is a policy decision by an entity rather than policy implementation by a teacher.  For purposes of analyzing whether immunity applies, we do not attach significance to whether the employer or the employee is named as a defendant.  See Wiederholt v. City of Minneapolis, 581 N.W.2d 312,
316-17 (Minn. 1998) (discussing relationship between employer and employee in context of official immunity).  Because Staack’s allegations are based on conduct that involves the implementation of policy, not the formulation of policy, statutory immunity does not protect the school district from litigation on these claims.


            The school district, in its motion for summary judgment, set forth two grounds for dismissal:  immunity and failure to present adequate evidence to establish foreseeability and probable cause.  The district court denied summary judgment on both grounds.  Absent a district court certification that the question is important and doubtful, an immunity defense, or a jurisdictional issue, the denial of summary judgment is generally not immediately appealable.  Minn. R. Civ. App. P. 103.03(i); Kastner v. Star Trails Ass’n, 646 N.W.2d 235, 238 (Minn. 2002).  The school district did not petition for discretionary review of the denial of the motion based on inadequate evidence to establish a negligence action.  Instead, the school district contends that the issues of immunity and causation are sufficiently intertwined to warrant review of the district court’s denial on this alternative ground. 

Review of the denial of a summary judgment not otherwise appealable is appropriate if it is inextricably intertwined with an issue that is reviewable.  Swint v. Chambers County Comm’n, 514 U.S. 35, 50-51, 115 S. Ct. 1203, 1212 (1995); Meier v. City of Columbia Heights, 686 N.W.2d 858, 863 (Minn. App. 2004), review denied (Minn. Dec. 14, 2004).  Staack and the school district dispute whether the issues are inextricably intertwined.  Although the issues relate to the same cluster of facts and overlap to some extent, the school district has not demonstrated the degree or type of intertwining that triggers review under the collateral-order doctrine.  See Kastner, 646 N.W.2d at 239-40 (applying collateral-order doctrine to determine, for purposes of interlocutory appeal, whether issues are inextricably intertwined). 

Even if the school district could establish that the immunity and negligence issues are inextricably intertwined, it has not established that the district court erred by denying summary judgment on the lack of evidence to establish the elements of foreseeability or proximate cause.  Summary judgment is not appropriate on disputed material issues “if reasonable persons might draw different conclusions from the evidence presented.”  Ill. Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633 (Minn. 1978).  Although a court should decide the issue of foreseeability as a matter of law when the issue is clear, “[i]n close cases, the question of foreseeability is for the jury.”  Whiteford by Whiteford v. Yamaha Motor Corp., 582 N.W.2d 916, 918 (Minn. 1998).  Similarly, proximate cause is usually a question of fact that can seldom be decided on a motion for summary judgment.  Ill. Farmers Ins. Co., 273 N.W.2d at 633-34; Abresch v. Nw. Bell Tel. Co., 246 Minn. 408, 412, 75 N.W.2d 206, 209 (1956).

            The question of whether additional supervision either in the classroom or the hallway could have prevented Staack’s injuries is a question of fact.  See Hamilton v. Indep. Sch. Dist. No. 114, 355 N.W.2d 182, 184-85 (Minn. App. 1984) (vacating order for summary judgment because question of whether teacher’s inadequate supervision was proximate cause of fight between two students was factual issue reserved for fact-finder).  Because reasonable persons could draw different conclusions about the causal connection between Akre’s conduct in the classroom and the altercation in the hallway, the district court properly denied summary judgment on the issue of negligent supervision.