This opinion will be unpublished and

may not be cited except as provided by

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






George M. Malone,





Special School District No. 1,

Minneapolis Public Schools,




Filed December 6, 2005


Toussaint, Chief Judge


Hennepin County District Court

File No. EM 03-13768



Philip G. Villaume, Villaume and Associates, 5200 Willson Road, Suite 150, Edina, MN 55424 (for appellant)


Stephen G. Andersen, Ratwick Roszak & Maloney, P.A., 730 Second Avenue South, Suite 300, Minneapolis, MN 55402 (for respondent)



            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Huspeni, Judge.*


U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


             Appellant, a teacher, challenges the summary judgment entered in favor of his former employer, respondent Minneapolis Special School District No. 1, on his claim that the school district negligently failed to provide him with an environment free of harassing student behavior.  Because the district court correctly determined that the school district had immunity from this negligence action under Minn. Stat. § 466.12, subd. 3a (2002); discretionary immunity under Minn. Stat. § 466.03, subd. 6 (2002); and no legal duty pursuant to Minn. Stat. § 121A.03, we affirm.


            On August 28, 2000, appellant George M. Malone started his employment at Franklin Middle School in respondent Minneapolis School District as a science teacher. During his three academic years of employment at Franklin, appellant reported many incidents of bad behavior by students.  Appellant, at all relevant times a probationary teacher, was put on administrative leave after an incident on April 20, 2003, and his job was terminated on June 12, 2003. 

            At the end of July 2003, appellant filed this action against the school district, claiming that a teacher has a right to be free of any abuse or harassment in the school environment under Minn. Stat. § 121A.03 and the school district’s own policies.  He also claimed that the school district knew “of the harassment of the [appellant] by school children, but did not take any disciplinary action against the school children, nor took any remedial action to prevent future harassing conduct.” 

            The school district moved for summary judgment, contending that it was immune from the negligence action and owed no actionable duty to appellant.  The district court agreed and, on October 18, 2004, granted summary judgment for the school district.  




            Appellant argues that the school district tort immunity statute, Minn. Stat. § 466.12, subd. 3a (2002), is unconstitutional.  The school district argues, among other things, that appellant failed (1) to raise the constitutional issue in the district court; (2) to produce sufficient evidence to sustain a constitutional challenge; and (3) to notify the attorney general.

            Considering the procedural posture of this case, we decline to reach appellant’s constitutional argument on this appeal.  First, we see no basis for this court to decide this matter based on or stay this appeal pending a decision in other actions challenging the constitutionality of Minn. Stat. § 466.12, subd. 3a. Appellant relies on a district court decision in consolidated negligence cases against the same Minneapolis special school district concluding that subdivision 3a is unconstitutional on its face.  Granville v. Minneapolis Sch. Dist., 2005 WL 1413322 (Minn. Dist. Ct. May 13, 2005); Johnson v. Minneapolis Sch. Dist., 2005 WL 1413333 (Minn. Dist. Ct. May 13, 2005).  The school district’s appeals from those decisions are now consolidated and pending in the court of appeals.  Granville v. Minneapolis School Dist., Nos. A05-1377 & A05-1378 (Minn. App. July 13, 2005).

            In contrast to appellant, the plaintiff in Granville specifically alleged in district court that subdivision 3a “deprives the minor child . . . of a fundamental right and violates the equal protection clauses of both the Minnesota and United States Constitutions.”  Granville, 2005 WL 1413322, at *1.  Because appellant failed to raise or articulate any constitutional issue in the district court[1] and failed to properly and timely notify the attorney general that he was challenging the constitutionality of the statute in the district court or on appeal,[2] he waived his right to raise the constitutional issue in Granville on this appeal.  Minn. R. Civ. P. 24.04; Minn. R. App. P. 144; Waldner v. Peterson, 447 N.W.2d 217 (Minn. App. 1989) (no consideration of constitutional issue when not passed on by district court and no notice given to attorney general under rule 144); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that issues not argued and considered by district court will not be considered on appeal).  Second, even if the constitutional issue in Granville were before this court, the district court decision in Granville is not controlling precedent in this court and appellant cites no authority for this court to stay this proceeding pending a decision in another action.  Furthermore, the record reflects that appellant produced no evidence, aside from the age of the statute, to establish that the challenged statute is arbitrary or unreasonable.  See Maxwell Commc’ns v. Webb Publ’g Co., 518 N.W.2d 830, 834 n.6 (Minn. 1994) (requiring that equal protection challenge be based on evidence that there was “disparate treatment of similarly-situated entities”); In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (stating that party challenging Minnesota statute as unconstitutional bears burden of establishing beyond reasonable doubt that statute violates some constitutional provision). 


            Appellant argues that the district court erroneously determined that the school district satisfied the statutory requirements for immunity under Minn. Stat. § 466.12, subd. 3a.  “On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

            Minnesota school districts are required to obtain liability insurance but are granted immunity from tort liability if they are unable to do so and they meet the other statutory requirements.  Minn. Stat. § 466.12, subds. 1, 2, 3a (2002).  School districts must make a good faith attempt to procure insurance at a rate of “$1.50 per pupil per year for the average number of pupils,” but if they are unable to do so, they must obtain from the commissioner of insurance a certification that such insurance is unobtainable.  See Scott v. Ind. Sch. Dist.  No. 709, 256 N.W.2d 485, 491 (1977) (in dictum, recognizing that one “possible situation is that the insurance does not comply with the requirements of § 466.04 and there has been a good faith attempt to procure it and such insurance was unobtainable at the statutory price.  In this case, the school district is immune”).

            To survive a motion for summary judgment, a party cannot rely on mere denials or averments.  Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995).  Rather, when opposing summary judgment, a party has the burden to produce evidence of a disputed material fact.  Id. Here, appellant, who opposed summary judgment, produced no evidence regarding insurance cost or availability or the district’s lack of good faith.  Respondent, in contrast, provided evidence that it attempted to procure such insurance and that, in September 2001, less than two years before this suit was filed, it obtained a commerce-department certification that such insurance could not be obtained. 

            Nevertheless, appellant argues that a good-faith attempt under the statute requires that the school district attempt to procure insurance on an annual basis.  Whether an attempt to procure insurance under the statute must be made annually is a question of statutory construction, which we review de novo.  See Brookfield  Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  Appellant provided no legal analysis or factual basis for his position that annual certifications are required.  Because there is no express requirement in the statute that recertification be sought at any particular interval, we decline to rewrite the statute to add such a term.  See Genin v. 1996 Mercury Marquis, 622 N.W.2d 114, 117 (Minn. 2001) (stating that rules of construction forbid adding words or meaning to statute that were intentionally or inadvertently left out).

            Therefore, we conclude the district court did not err in its application of the law or in its determination that there was no genuine issue of material fact regarding respondent’s compliance with the statute.  


            Appellant argues that Minn. Stat. § 121A.03 (2002) “creates an absolute legal duty upon the Minneapolis School District.”  The statute requires that the commissioner maintain a model policy on discrimination, harassment, and violence and that school boards adopt, conspicuously post, and submit to the commissioner a policy that conforms to the Minnesota Human Rights Act.  Id., subds. 2, 3.  “Generally, the existence of a legal duty is an issue for the court to determine as a matter of law.”  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).

            The violation of a statute may constitute negligence per se.  Seim v. Garavalia, 306 N.W.2d 806, 810 (1981).  For a statute to create a fixed standard of conduct by which the fact of negligence may be determined per se, the statute’s purpose must be:  (a) “to protect a class of persons which includes the one whose interest is invaded,” (b) “to protect the particular interest which is invaded,” (c) “to protect that interest against the kind of harm which has resulted,” and (d) “to protect that interest against the particular hazard from which the harm results.”  Scott, 256 N.W.2d at 488 (quoting Restatement of Torts 2d § 286); see also Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn. 1979) (holding that municipality may be liable for negligence per se when it violates ordinance protecting particular class of individuals, rather than public generally, from specified harm).

            Appellant does not argue that the school district violated a particular part of the statute.  Instead, he quotes extensively from the policies adopted by the school board pursuant to the statute, but cites to no cases holding that violation of the school’s policies is the equivalent of violation of statutes, ordinances, and regulations.  See, e.g., Scott, 256 N.W.2d at 488 (holding that former version of Minn. Stat. § 121A.31 created duty on school district to require wearing of protective eyewear); see also Seim, 306 N.W.2d at 810 (setting out statutes creating negligence per se standards of care regarding wearing eyeglasses, removing doors from discarded refrigerators, and outlawing fireworks).  Because the statute itself does not create a fixed standard of conduct regarding harassment of teachers, appellant may not rely on it to establish negligence per se.


            Appellant also argues that the district court erroneously determined that the school district is immune from tort liability under the discretionary-function exception to government tort liability.  Minn. Stat. § 466.03, subd. 6 (2004). 

            If a school district is not immune from tort liability based on section 466.12, then it may still be immune 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.  Statutory immunity exists to prevent the courts from conducting an after-the-fact review that second-guesses “certain policy-making activities that are legislative or executive in nature.”  Nusbaum v. Blue Earth County, 422 N.W.2d 713, 718 (Minn. 1988).  If a decision involves the type of political, social, and economic considerations that lie at the center of discretionary action, including consideration of safety issues, financial burdens, and possible legal consequences, it is not the role of the courts to second-guess such policy decisions.  Steinke v. City of Andover, 525 N.W.2d 173, 176 (Minn. 1994).

            A court reviewing immunity issues must examine with particularity the nature of the conduct the plaintiff alleges as the basis of a negligence claim.  Watson v. Metro. Transit Comm’n, 553 N.W.2d 406, 411 (Minn. 1996).  Appellant alleges in his negligence claim  that the school district failed to investigate harassment by students and to enforce the harassment policy.  Appellant does not allege negligent creation of the policies.[3] 

            Specifically, appellant cites incident reports of “harassing conduct of the students to Administration” to support his claims.  In one report, he noted that a student called him a “faggot” which he considered “sexual harassment.”  Out of the various recommendations for action on the form, appellant circled that he recommended that the student “see administrator.”  The report also indicates that a counselor spoke with the student, contacted his parents, and suspended the student for two days.  In the second report, appellant wrote “sexual harassment” followed by inappropriate comments a student had made about another student’s mother.  The report indicates that the student was counseled by the assistant principal at Franklin Middle School; his parents were contacted; and he spent the rest of the period in the equivalent of detention.  In a third report, appellant noted that another student was defiant and disrespectful, and a third party had told appellant that the student had said appellant was “gay.”  That student was counseled, his parents were contacted, and he received detention.

            These specific reports do not reflect the administration’s failure to investigate or enforce harassment policy.  The report forms and the policies from which they were developed reveal a multi-level approach to address the multitude of possible disruptive student behaviors.  Some form of investigation by the administration is evident from the reports themselves, ranging from an administrator’s interview of the student, phone call to parents, and sometimes involvement of additional staff, such as social workers and counselors.  Each incident form also reflects the multi-level approach to discipline and the discretion allowed at each level.  Enforcement of the disciplinary policies did not involve execution of specific duties arising from fixed and designated facts.  Johnson v. State, 553 N.W.2d 40, 46 (Minn. 1996).  Furthermore, appellant does not identify a particular type of investigation required by the policies, but not performed, or a specific enforcement method that was required, but not implemented.  Therefore, we see no merit to appellant’s claim that the decisions made by the administrators were merely “operational.” 

            Insofar as appellant suggests that he reported to the administration ongoing general harassment by the students, he fails to identify the ministerial act that the school district failed to perform.  It is impossible to evaluate appellant’s general allegations of negligence for their ministerial or discretionary function.  

            Because the policies at issue are general and their application and enforcement are dependent on three school representatives choosing among various alternatives at each step in behavior management, the policies require discretionary decision-making.  E.g., Larson v. Independent Sch. Dist. No. 314, 289 N.W.2d 112, 121 (Minn. 1979) (describing discretionary decision-making as making “choice between various alternatives”).  Involving the judiciary in all of the decisions made in the management of students’ behaviors is the very “second-guessing” that discretionary immunity is aimed at eliminating.  Therefore, the district court did not err in its conclusion that the school district bore its burden to show it was protected by discretionary immunity.

            Official immunity is designed to protect “public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties.”  Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988).  The government entity that employs the public official is entitled to share in the employee’s immunity by way of vicarious official immunity.  Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993).  Although appellant argues that the school district intentionally disregarded his reports, the evidence does not support his claim.  The incident forms show enforcement of discipline through dispositions ranging from meeting with intervenors and contacting parents to suspensions.  Because professional judgments were exercised by the officials involved in the discipline of the students and the handling of the incident reports and because there is no basis for concluding they exercised it with malice, official immunity applies.  See Anderson v. Anoka Hennepin Sch. Dist. 11, 678 N.W.2d 651, 662 (Minn. 2004) (concluding that teacher’s conduct was neither malicious nor willful). 


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

[1] Appellant did not allege in his district court memoranda or oral argument that subdivision 3a is “unconstitutional” or violates a constitutional provision.  His simple citation to Granville without more was not sufficient argument or analysis to raise a constitutional issue.  E.g., Ganguli v. University of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (stating that court would not address allegations without constitutional analysis or citation).

[2] Notice to the attorney general is required by both the district and appellate court rules to allow the attorney general the opportunity to intervene.  Minn. R. Civ. P. 24.04; Minn. R. App. P. 144.  Appellant’s letter to the attorney general was dated December 14, 2004, after summary judgment had been granted by the district court and before appellant filed his notice of appeal for this case on February 1, 2005.

[3] Two policy documents are relevant to appellant’s allegations of negligent enforcement of policies:  the district-wide disciplinary policy (city-wide plan) and Franklin Middle School’s behavior-management plan (BMP).  Appellant does not argue that creating the policies was operational.  The district policy states that sexual harassment “shall result in immediate suspension with disposition dependent upon offense.”  The Franklin Middle School behavior management plan “recommends . . . a sequence of intervention” for managing students’ behavior problems.  After an incident, the “room for positive change” staff member determines the type of behavior and then refers the student to the appropriate intervenor (counselor, social worker, or administrator) for one or more “possible resulting actions.”  Only “weapons” incidents are designated for mandatory suspension.