This opinion will be unpublished and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
Ann Wilson, as Trustee for the
Next of Kin of Scott Wilson, Deceased,
Filed May 1, 2007
Dakota County District Court
File No. C6-03-7269
Chris A. Messerly, Cindy L. Hanneken, Robins, Kaplan, Miller & Ciresi, L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402 (for appellant)
Sarah L. Brew, Monte A. Mills, Greene Espel, P.L.L.P., 200 South Sixth Street, Suite 1200, Minneapolis, MN 55402 (for respondent)
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Ann Wilson challenges the partial summary judgment granted by the district
court under Minn. R. Civ. P. 54.02 to respondent City of
As to official immunity, we hold that the dispatcher’s act of providing the incorrect address was a ministerial act not protected by official immunity, while the emergency responders’ act of driving first to an incorrect location before reaching the scene of the emergency is a discretionary decision protected by official immunity. But because the public-duty doctrine applies to the city’s provision of emergency services, appellant’s negligence claim against the city is barred, and we affirm.
In the morning of September 20, 2001, decedent Scott Wilson and his wife went jogging. Sometime after returning home, decedent said he was not feeling well and had trouble breathing. At 9:54:13, he called 911 and reached a Burnsville Police Department dispatcher, reporting that he was having chest pains.
dispatcher received the call, the
At 10:00:08, appellant called 911, because she believed that she should have at least heard the sirens by then. When she started speaking, the dispatcher interrupted her and said, “Yep, we’re on the way.”
Although the emergency responders had the correct address, they first drove to the incorrect block. When they were unable to find the address, they radioed the dispatcher for clarification. At the same time, the dispatcher was talking to appellant, who had called again to inquire when assistance was coming. Appellant apparently told the responders that they were on the wrong side of the highway. The dispatcher told appellant they were “right there.”
No. 2 arrived at the
Appellant sued respondent city for negligence in providing emergency services. The city moved for summary judgment. The district court granted summary judgment to the city, ruling that the city could not be held liable under the public-duty doctrine for emergency services it provided, and that appellant failed to show that the city assumed a special duty to decedent by promising that help was on the way. The district court also ruled that the actions of the dispatcher and emergency responders were discretionary and protected by official immunity, and that vicarious official immunity applied to the city. This appeal followed.
D E C I S I O N
summary judgment, an appellate court will determine whether there are genuine
issues of material fact and whether the district court erred as a matter of
The issue of
whether official immunity applies is a question of law reviewed de novo. Thompson
v. City of
The first task is to “identify the precise governmental conduct at issue.” Mumm, 708 N.W.2d at 490. It must then be ascertained whether the acts were ministerial or discretionary.
In analyzing whether an act is ministerial or discretionary, the focus is on the nature of the act. A ministerial act is one that is absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts. A ministerial duty leaves nothing to discretion; it is a simple, definite duty arising under and because of stated conditions. In contrast, a duty is discretionary if it involves more individual professional judgment that necessarily reflects the professional goal and factors of a situation.
“Public officials responding to emergencies
often face circumstances that, by their nature, require the exercise of
discretion.” Bailey v. City of
personnel driving emergency vehicles -- absent violation of specific policies
or laws -- are considered to be engaged in discretionary activities. See,
e.g., Kari v. City of Maplewood,
582 N.W.2d 921, 924-25 (
contends that the drivers did not have to exercise any discretion in arriving
at the correct location of the emergency.
This court, however, has ruled that official immunity should be applied
to the conduct of “ambulance drivers who must make split second decisions about
the safest and most efficient way to get to the scene of an emergency.” Nisbet
The second question is whether the dispatcher’s action in initially stating the incorrect address was a ministerial act or a discretionary act. Appellant contends that the duty to provide a correct address in a known emergency is among the most basic responsibilities that an emergency provider has, and negligence should not be protected by official immunity because there is no discretion or judgment to be exercised in providing the proper address.
contends that while this narrow act may appear somewhat ministerial on its face,
the dispatcher has numerous duties, all of which involve “the exercise of
individual judgment,” depending on the dispatcher’s evaluation of “myriad factors,”
including the type of emergency, location, and available resources and which
are thus discretionary acts. See Kari,
582 N.W.2d at 923. Accordingly, it
asserts that the dispatcher is entitled to official immunity for her actions in
mistakenly reading the wrong address for the
agree. As the supreme court has
explained, not all conduct in an emergency is discretionary. Mumm,
708 N.W.2d at 493. Public employers may
eliminate the discretion of their employees in certain areas by policy.
As the district court noted, respondent has a protocol and standards that dispatchers must use in responding to emergency calls. These include obtaining the address where the emergency is taking place, writing it down, and accurately dispatching the emergency responders to the scene. Thus, the duty to give the correct address was ministerial. Consequently, even though this was an emergency situation, official immunity does not apply to the dispatcher’s act of giving the incorrect address. See Mumm, 708 N.W.2d at 493 (holding that even in emergency, responders who do not comply with ministerial acts are not afforded immunity).
appellant contends that vicarious official immunity should not be extended to
respondent, even if its employees are protected by official immunity. In most circumstances, when a government
employee is protected from suit by official immunity, the government entity
will also be protected by vicarious official immunity. Pletan,
494 N.W.2d at 42. Generally, vicarious
official immunity will be granted “in situations where the 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.”
conduct to which official immunity applies, namely, the actions of emergency
personnel in driving to the scene of the emergency, vicarious official immunity
is extended to respondent for the reasons set out in
address whether appellant’s claim of negligent provision of emergency services
is barred by the public-duty doctrine.
First, to establish negligence, a plaintiff must prove (1) duty; (2)
breach; (3) proximate cause; and (4) injury.
the circumstances of the present case, we first address whether a public duty
exists to provide emergency services. In
September 2001, when the incident at issue occurred, each county was required
to have established a 911 emergency telephone system.
were to include, among other things, emergency medical and ambulance services.
to distinguish Woehrle, contending
that the claims there were based primarily on the manner in which the fire was fought.
appellant’s characterization, her claims are based on the assertion that the
emergency responders were negligent in the manner that they performed their
jobs, just as the claims in Woehrle addressed
the manner in which the firefighters performed their job. See id. This court held that the city did not owe the
plaintiffs any duty regarding the manner in which the fire was fought.
A. Special duty v. assumed duty
public-duty doctrine, a municipality may nonetheless assume a “special duty” to
act for the protection of a specific class of individuals, which may form the
basis for a negligence action. Cracraft, 279 N.W.2d at 806. “[O]nce a duty to act for the protection of
others is voluntarily assumed, due care must be exercised even though there was
no duty to act in the first instance.”
first argues that respondent “assumed” a direct duty to decedent by promising
that help was on the way, which she contends is distinct from the “special
duty” addressed in Cracraft and is
outside the public-duty doctrine. She
admits that the two doctrines – special duty and assumed duty – are similar,
and that portions of Cracraft liken
the two concepts, which appellant acknowledges may create some confusion. But she contends these are separate concepts
and she cites language of Cracraft
which she asserts shows that there is a difference between the two doctrines:
“[W]e find no evidence in the record indicating that a duty was assumed or a special duty was created.”
Other language in Cracraft explicitly refutes appellant’s argument:
“Special duty” is nothing more than convenient terminology, in contradistinction to “public duty,” for the ancient doctrine that once a duty to act for the protection of others is voluntarily assumed, due care must be exercised even though there was no duty to act in the first instance. “Special duty,” therefore, could also effectively be termed “assumed” duty.
It is somewhat unfortunate that the terms “public” duty and “special” duty have been used, inasmuch as they give the misleading impression that the distinction applies only to governmental tortfeasors. Perhaps “no duty” and “assumed” duty would be more appropriate.
B. Whether a direct duty exists
also contends that the public-duty doctrine is not applicable where the claim
for negligence was based on conduct in which the county assumed a direct duty
to the plaintiffs. See Gilbert v. Billman Constr., Inc., 371 N.W.2d 542, 546 (
contends that respondent assumed a direct duty to decedent when its dispatcher
told decedent that help was on the way.
But here, as in Danielson,
there is no showing that respondent required or advised decedent to take or not
take any action.
C. Whether respondent assumed a special duty
appellant argues in the alternative that if the public-duty doctrine applies,
then respondent had a special duty to provide emergency medical care that it
performed negligently. A special duty
arises “when there are additional indicia that the municipality has undertaken
the responsibility of not only protecting itself, but also undertaken the
responsibility of protecting a particular class of persons from the risks. . .
279 N.W.2d at 806. “[O]nce a duty to act
for the protection of others is voluntarily assumed, due care must be exercised
even though there was no duty to act in the first instance.”
1. Actual knowledge of the dangerous condition
factor is whether the municipality had actual knowledge of the dangerous
2. Reasonable reliance on municipality’s representations and conduct
factor is whether there was “reasonable reliance by persons on the municipality’s
representations and conduct.”
Radke, however, did not involve a 911 call with its inherent time constraints and emergency conditions; it involved reports made over a three-month period, while here there were three 911 calls made over an almost 16-minute period. As the district court concluded, appellant did not produce evidence to show they abstained from taking other actions based on the dispatcher’s statements that the emergency responders were “on the way.” Had there been evidence as to actual reliance, however, our decision on this factor might have been different.
3. Whether statute required protection of particular class of persons that included decedent, rather than the public as a whole
The third factor used to determine whether a special duty exists is whether “an ordinance or statute . . . sets forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole.” Cracraft, 279 N.W.2d at 807 (footnote omitted). Therefore, we must examine whether the law at issue sets forth such mandatory acts.
To review again,
the statute at issue here required each county to establish a 911 emergency
telecommunications system. Minn. Stat.
§ 403.01, subd. 1. In the rules
promulgated pursuant to this statute, the county is to “provide continuous
service to all callers within its service area 24 hours each day, seven days a
requiring reports of suspected abuse or neglect of children was deemed to
create a special duty toward children by the county. Radke,
694 N.W.2d at 796-97. This was based on
the language of the statute, which clearly and repeatedly required performance
of mandatory acts, including that reports of suspected abuse must be made by
specified persons and that the county then investigate, and provide protection
for the children as necessary, collect information, and submit reports
Appellant argues that, based on the language in the statute and the rules requiring that the county “shall” operate and maintain a 911 service and provide continuous service directly to the callers, they are intended to benefit a particular class of persons, namely those individuals who are in need of emergency medical services, such as decedent. See Radke, 694 N.W.2d at 796-97 (finding special duty). As respondent argues, a similar argument failed in Hage, in which the appellant contended that the statute requiring fire inspections in all hotels was required to protect the particular class of persons who stay in hotels, and the supreme court stated as follows:
The mere fact that a statute addresses fire hazards in a narrower category of buildings, however, should not alone be determinative of whether the state has voluntarily assumed a duty to a particular class of persons . . . . It is also argued that the statute creates a special duty because it identifies a particular class of persons; namely, persons who pay for sleeping accommodations.
304 N.W.2d at 287. The
court rejected the argument, noting that because the statute also protects
others, including restaurant patrons, those who attend meetings at the hotel,
and even those in adjoining buildings, the statute benefited the public as a
4. Whether city increased risk of harm to appellant and decedent
question is whether the municipality used due care to avoid increasing the risk
of harm. Cracraft, 279 N.W.2d at 807.
The district court addressed this issue by examining the difference
between an increased risk of harm and a failure to decrease the risk of harm,
citing Andrade v. Ellefson, 391
N.W.2d 836 (Minn. 1986). There, the
plaintiffs sued the county for negligently inspecting and supervising a day-care
center at which infants were injured.
Appellant asserts that here, rather than failure to act, it was the dispatcher’s affirmative act of providing the wrong address and the driver’s affirmative act of going to the wrong location that increased the risk of harm by delaying the provision of critical emergency services to decedent. She argues that this conduct increased the risk of harm to decedent, resulting in his death.
Decedent’s risk of harm was caused by his own serious cardiac condition, rather than the fact that respondent dispatched the emergency 911 services. As respondent explains, in every case involving such services, a plaintiff could always contend that a delay in providing services, by definition an emergency, increases the risk of harm. But this is a failure to decrease harm, rather than an affirmative increase of the risk of harm. Andrade, 391 N.W.2d at 843.
In conclusion, when only the first of four factors in the Cracraft analysis is met, we cannot conclude that respondent here had a special duty to those in decedent’s class of persons. Instead, the public-duty doctrine precludes the negligence action against respondent.
 Appellant also sued VisionAir, Inc., which sold the computer-aided dispatch system that the city used in handling emergency calls, but it is not a party to this appeal.
 In 2002, the word “establish” was replaced
with “operate and maintain.” 2002