This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
George M. Malone,
Special School District No. 1,
Minneapolis Public Schools,
Hennepin County District Court
File No. EM 03-13768
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
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.
D E C I S I O N
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.
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
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
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 (
To survive a motion
for summary judgment, a party cannot rely on mere denials or averments. Nicollet
Restoration, Inc. v. City of
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
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
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
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 (
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
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 (
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 (
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.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10.
 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).
 Notice to the attorney general is required
by both the district and appellate court rules to allow the attorney general
the opportunity to intervene.
 Two policy
documents are relevant to appellant’s allegations of negligent enforcement of
policies: the district-wide disciplinary
policy (city-wide plan) and