This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Dennis and Carmen Larrison,
as parents and natural guardians
of their son, Christopher Larrison,
Filed January 23, 2007
Olmsted County District Court
File No. 55-CX-05-001380
Jason D. Pederson, Fuller, Wallner, Cayko & Pederson, P.A., 514 America Avenue Northwest, P.O. Box 880, Bemidji, Minnesota 56619-0880 (for respondents)
Considered and decided by Minge, 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
Appellants challenge the district court’s denial of their motion for summary judgment. Appellants argue that (1) they are entitled to vicarious official immunity because respondents’ negligent-supervision claim is based on a teacher’s actions which conform with appellants’ attendance protocol, and (2) there are no issues of material fact regarding the scope of appellants’ attendance protocol. We reverse.
Christopher Larrison was assaulted and
badly injured by a fellow student during a woodshop class at
Dennis and Carmen Larrison, acting on behalf of their son, filed a civil suit
D E C I S I O N
challenge the district court’s denial of their motion for summary judgment
based on a claim of official immunity. “While
denial of a motion for summary judgment is not ordinarily appealable, an
exception to this rule exists when the denial of summary judgment is based on
rejection of a statutory or official immunity defense.”
A party opposing summary judgment must
“do more than rest on mere averments.” DLH,
Inc. v. Russ, 566 N.W.2d 60, 71 (
the time the assault occurred, the woodshop teacher was in his office entering
the daily attendance records into the computer.
Appellants concede that this act is ministerial, but they argue that the
act was required by an attendance protocol developed by school administrators. Therefore, they argue, the woodshop teacher
is entitled to official immunity and appellants are entitled to vicarious
official immunity. In
dispute the existence of the attendance protocol. In support of their argument that the
teacher’s act was required by the school’s attendance protocol, appellants submitted
two sworn affidavits, the transcript of the deposition of the teacher who was
in charge of the woodshop class at the time of the assault, and the testimony
of another adult present at the time of the assault, all of whom stated that
there was an attendance protocol and that it required teachers to take
attendance before class and enter that attendance into their computer. Respondents argue that the affidavits
submitted by appellants were insufficient because they were “created in an
attempt to illustrate that [the teacher] was following an ‘alleged’ protocol
when in fact there was no such protocol indicating how and when the teacher
should take attendance.” To support
their contention, respondents cite Conlin
v. City of St. Paul, 605 N.W.2d 396 (
affidavit of the principal of
The attendance protocol that John Marshall developed and adopted required teachers to take roll at the beginning of each class period. Before we had computers in the classrooms, teachers took roll at the beginning of the class period and either put a slip out on the door or sent a Scantron sheet to a collection site. Once all of the teachers had a computer in their classroom, they were expected at the beginning of the class period to immediately enter roll into their computer and send it to the attendance office.
The affidavit of
the current principal of
Under the attendance protocol, John Marshall’s staff is required to take attendance at the beginning of class. The instructor should then immediately enter roll into his or her computer – essentially checking boxes on a spreadsheet – so it may be readily accessed by John Marshall’s attendance staff.
Respondents also challenge the existence of the protocol because it is not actually written in the school handbook. But a policy need not be written to support a claim of official immunity. See Anderson, 678 N.W.2d at 658–59 (stating standard for ministerial activity).
We conclude that respondents have failed to show the existence of an issue of material fact and now consider whether appellants are entitled to official immunity as a matter of law.
application of official immunity is a question of law, which this court reviews
de novo. Thompson, 707 N.W.2d at 673.
A person performing a ministerial act is entitled to official immunity
if he or she is following a protocol “established through the exercise of
discretionary judgment that would itself be protected by official
Generally, if a public official is
immune from suit, his or her employer will also enjoy immunity.
The court applies vicarious official immunity when failure to grant it would focus “stifling attention” on an official’s performance “to the serious detriment of that performance.” This standard grants vicarious official immunity 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.