This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Veronica T. Kelley,


Arnold Herbert Jerde, et al.,


Filed May 29, 2007


Peterson, Judge

Dissenting, Crippen, Judge


Carlton County District Court

File No. 09-CV-05-1936



Jeffrey M. Montpetit, Sieben, Grose Von Holtum & Carey, Ltd., 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN  55402 (for respondent)



Jana M. O’Leary Sullivan, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN  55103 (for appellants)


            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N



            On appeal from a denial of summary judgment in this action against appellant city and its employee for personal injuries suffered in a collision with a city-owned-and-operated snowplow, appellants argue that this action should be dismissed based on common-law official immunity.  We reverse.


            Respondent Veronica Kelley brought this negligence action against appellants City of Scanlon and Arnold Jerde seeking to recover for personal injuries sustained when her vehicle collided with a snowplow owned by the city and operated by Jerde.  During the night on February 19, 2002, about two and a half inches of snow fell in Scanlon.  At about 8:00 a.m. on February 20, 2002, Jerde, who was the city’s public-works-maintenance supervisor, and Steve Kohn, a public-works employee, began plowing and sanding city streets.  The weather was gray and overcast, and the roads were snow-covered. 

            Jerde was operating a yellow snowplow truck that weighed about 28,000 pounds when fully loaded with sand.  The snowplow truck was equipped with a front plow, a rear sander, an amber revolving light, plow lights, and normal operating lights, including headlights, taillights, and turn-signal lights. 

            Traveling south on 24th Street, Jerde approached the intersection of 24th Street and Sahlman Avenue.  Jerde testified in a deposition:

            Q. Okay.  And tell me, in your own words, what happens.


            A. Well, as I’m coming up to an intersection, I downshift into low gear, which would be second gear . . . .  And I pull the level for the sander.  I let the clutch back out as I’m rolling through the stop sign, and I make the turn.  But I’m watching for oncoming traffic in both directions.  I did not see [Kelley].


            Q.  Had you seen her, would you have stopped?


            A. Most definitely.


            . . . .


            Q. Right.  Was there any reason that you would have needed to roll your truck through the intersection that you can think of?


            A. For smoothness of the laying of the sand.  And, also, every time you stop one of those trucks with blade down and loaded, it takes a little bit harder for them to get moving.  So, yes, we do roll through a lot of stop signs.  But . . . I’ve got to downshift, physically downshift into low gear to make it.  You’re doing it on a rolling basis to be able to downshift it.


            Q. Okay.  But, generally speaking, it’s your own . . . policy or procedure, if you want to say it that way, to abide by the traffic laws?


            A. Yes.


Jerde testified that he was traveling at less than five miles per hour as he proceeded through the intersection.  Jerde was issued a failure-to-yield ticket following the accident. 

            Kelley was traveling on Sahlman Avenue at a speed of about 20 to 30 miles per hour.  When Kelly was about 50 feet from the intersection, she saw the snowplow truck at the intersection and saw it proceed into the intersection.  Kelley braked but collided with the driver’s side of the snowplow truck.

            City-councilmember Eugene Kohn, who provided information to Steve Kohn and Jerde regarding snowplowing policies and procedures, testified that the city had no written or unwritten policies relative to operation of snowplows.  Other than a policy of keeping snowplows off the streets when school buses are transporting students to school, the city allows snowplow operators to determine standards for when and how to plow and leaves it up to individual drivers to determine the best manner of operating their trucks under a given set of circumstances. 

            Jerde testified that the city’s policies and procedures for snow plowing are unwritten.  He explained:

            Q. Okay.  And does that unwritten policy, does that leave it up to the city snow plow drivers – i.e.:  you and Steve Kohn – to exercise your own judgment and discretion when you’re out there plowing the snow?


            A. Yes. . . .


            . . . .


            Q. Okay.  And does that unwritten policy, it requires you to exercise your discretion and judgment.  Does that discretion and judgment, does that also extend to – is it your decision whether or not to stop at stop signs or stop lights, that sort of thing?


            A. Yes.  A lot of times, if there happens to be a heavy weight of snow in front of you and that, you just flat out can’t.  But there are times, even when there is oncoming traffic, you have to stop.  This time, I did not see her.


            . . . .

            Q. Okay.  That’s [whether there is oncoming traffic] your first and – that’s your prominent concern?


            A. Uh-huh (affirmative). 


Both Jerde and Steve Kohn testified that a snowplow operator considers various factors when deciding whether to stop at an intersection, including the weight of snow in front of the truck and the ability to spread sand evenly across the intersection.

            Appellants moved for summary judgment on grounds that this action is precluded by official and statutory immunity.  The district court denied appellant’s motion, finding that fact issues existed on the application of immunity.  This appeal followed.


            A district court’s denial of a motion for summary judgment based on 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.

            The purpose of official immunity is 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 first step in determining whether city employees are protected by official immunity is to ascertain whether they were performing a discretionary or ministerial act.  See Kari, 582 N.W.2d at 923 (noting that the critical issue in official-immunity claims is whether the conduct is discretionary or ministerial).

            Ministerial functions, which are unprotected, are acts that are “absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.”  Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 414 (Minn. 1996) (quotation omitted).  “Beyond satisfying this characterization, it is inherent in the concept of ministerial duty that the duty must dictate the scope of the employee’s conduct.”  Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 659 (Minn. 2004).  “[O]fficial immunity does not protect officials when they are charged with the execution of ministerial, rather than discretionary, functions, that is, where ‘independent action’ is neither required nor desired.”  Id. at 655.  Rather, official immunity protects officials “charged by law with duties which call for the exercise of [their] judgment or discretion.”  Id. (quotation omitted).  “Discretion has a broader meaning in the context of official immunity than in the context of statutory immunity.”  Watson, 553 N.W.2d at 414.  “Official immunity protects the kind of discretion that is exercised on an operational rather than a policymaking level.”  Id.      

            If an act is discretionary, official immunity attaches unless the conduct is malicious or willful.  See Bailey v. City of St. Paul, 678 N.W.2d 697, 700-01 (Minn. App. 2004) (noting that public officials performing discretionary actions in the course of their official duties are protected from liability by official immunity unless those acts are malicious or willful), review denied (Minn. July 20, 2004).  Willful and malicious are synonymous in the official-immunity context.  Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991).  Malice is “the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.”  Id.

            Kelley concedes that Jerde’s conduct was not willful or malicious.  Thus, the only question is whether Jerde’s conduct was discretionary or ministerial.

            This court has held that a snowplow operator’s decision to plow a median using a wing, which can create white-out conditions, was a discretionary act protected by official immunity:

            While the state’s policies did not mandate a speed, they did not prohibit Syverson from plowing at 25 m.p.h.   Syverson had to assess the conditions and rely on his judgment to determine the appropriate speed.  While the state’s bare-pavement policy did not specifically mandate that Syverson plow that particular median with a wing at that time, the policy authorized it.  Syverson had to assess the existing conditions and rely on his judgment to determine the best time and manner for plowing.  These decisions involved sufficient discretion to fall within the protection of official immunity.


In re Alexandria Acc. of Feb. 8, 1994, 561 N.W.2d 543, 549 (Minn. App. 1997), review denied (Minn. June 26, 1997).

            The act at issue in this case is Jerde’s decision to not stop at the intersection.  The city did not have a policy requiring snowplows to stop at controlled intersections.    The city left it up to its snowplow operators to determine the best manner of operating their trucks under a given set of circumstances, and the operators considered various factors in deciding whether to stop at a controlled intersection, including the weight of the snow in front of the plow and the need to spread sand evenly across the intersection.  A car approaching the intersection is one of the factors considered.  Applying In re Alexandria, we conclude that the decision whether to proceed through an intersection without stopping involves sufficient discretion to fall within the protection of official immunity.

            Kelley relies on Nadeau v. Melin, 260 Minn. 369, 384, 110 N.W.2d 29, 39 (1961), and other cases holding that failure by the operator of an emergency vehicle to activate sirens and lights before proceeding through a controlled intersection deprives the operator of the protection of immunity.  Unlike those cases, Jerde did not violate a statute. Allowing snowplows to proceed through controlled intersections without stopping is consistent with Minn. Stat. § 169.03, subd. 6(a) (2006) (stating that, subject to exceptions not applicable to this case, Minn. Stat. ch. 169 “shall not apply to persons, motor vehicles, and other equipment while actually engaged in work upon the highway”).

            Kelley argues that even if a snowplow operator’s decision to proceed through a controlled intersection without stopping can sometimes be protected by immunity, Jerde’s decision was not protected because it was his failure to see Kelley’s car, rather than road conditions, that caused him to not stop.  Kelley’s argument construes official immunity too narrowly.  Official immunity does not apply when an employee acts “outside the parameters of [his] charged duties.”  Janklow v. Minn. Bd. of Examiners for Nursing Home Adm’rs, 552 N.W.2d 711, 715 (Minn. 1996).  But the fact that Jerde would not have gone through the intersection without stopping if he had seen Kelley’s car does not mean that he acted outside the parameters of his charged duties.  It simply means that if Jerde had seen the car while performing his charged duties, his exercise of discretion would have resulted in a different decision.  Jerde was operating the snowplow in the course of his employment with the city at the time of the accident, and the city committed to his discretion the decision whether to stop at a controlled intersection.  Jerde did not act outside the scope of his authority by failing to stop.  Compare Walker v. Scott County, 518 N.W.2d 76, 78-79 (Minn. App. 1994) (stating that employee acted outside scope of employment when using data for purposes unrelated to employment and county did not benefit from employee’s actions), review denied (Minn. Aug. 24, 1994).

            “Generally, if a public official is found to be immune from suit [based on official immunity], his or her government employer will be vicariously immune from a suit arising from the employee’s conduct and claims against the employer are dismissed without explanation.”  Anderson,678 N.W.2d at 663-64.  “[V]icarious official immunity [is appropriate] 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.”  Id. at 664.  We conclude that the application of vicarious official immunity is appropriate in this case.  Accordingly, we reverse the district court’s denial of appellants’ summary-judgment motion and need not address whether appellants are also protected by statutory immunity. 




CRIPPEN (Judge), dissenting

            It is one thing to conclude, with full support of relevant precedents, that snowplow operators enjoy official immunity for the exercise of discretion on “the best time and manner for plowing.”  See In re Alexandria Acc. of Feb. 8, 1994, 561 N.W.2d 543, 549 (Minn. App. 1997), review denied (Minn. June 26, 1997) (holding snowplow operator’s decision to plow median using a wing a discretionary act protected by official immunity).  And in this case, it can be agreed that respondent Arnold Jerde would be engaged in the protected exercise of discretion in a case where “there happens to be a heavy weight of snow in front of [the plow],” and the driver “just flat out can’t [stop],” as Jerde indicated in his testimony.  It is a different thing to conclude that all decisions in the course of plowing, short of a patent violation of traffic laws, constitute the exercise of discretion. 

            There is no suggestion in this case that Jerde “just flat out” could not stop or even that he was dealing with a heavy weight of snow in front of his plow as he engaged in dealing with the two and a half inch snow fall in Scanlon on February 20, 2002.  More to the point, there were no circumstances facing Jerde that would have prompted him to roll through a stop sign; he did not stop because he did not see appellant.  In the situation addressed in this case, Jerde was watching for ongoing traffic and “most definitely” would have stopped if he had seen appellant coming.  Employing the language in precedents reviewed in the majority opinion, together with the facts acknowledged by Jerde, I would conclude that his approach to the stop sign near the collision with appellant was a ministerial function, an action on a set of designated facts that prompted a specific duty to stop; his independence to roll through the stop sign was neither required nor desired.

            There is some dispute in the case emanating from the testimony of councilmember Eugene Kohn that there were no unwritten policies relative to the operation of snowplows.  Kohn acknowledged the practice of delegating standard-setting to snowplow drivers, and the record included undisputed testimony of respondent Jerde that he acted on an unwritten policy to stop at stop signs in circumstances like those in this case, a policy he violated only because he failed to see an oncoming car.

            Respondent Jerde may or may not have violated a traffic statute, and it is debatable whether he acted outside the “parameters of [his] charged duties.”  But his act of rolling through a stop sign in this case, in my opinion, was not an exercise of discretion.   Thus, I respectfully dissent.




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