This opinion will be unpublished and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
Duane L. Dale, et al.,
Richard A. Poupard, et al.,
Filed September 11, 2007
St. Louis County District Court
File No. 69DU-CV-06-131
Steven T. Moe, Petersen, Sage, Graves, Layman & Moe, P.A., 306 West Superior Street, Suite 1505, Duluth, MN 55802 (for respondent Koivisto)
Brian R. McCarthy, McCarthy & Barnes, PLC, 11 East Superior Street, Suite 546, Duluth, MN 55802-2027 (for defendants Dale and Serena)
Lori Swanson, Attorney General, Daniel L. Abelson, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2134 (for appellants)
Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellants, a snowplow operator and his state employer, challenge the district court’s denial of their motion for summary judgment in which they asserted official immunity, vicarious official immunity, and snow and ice immunity in this action for damages arising out of a collision with a state snowplow.
Because the snowplow operator was engaged in discretionary conduct at the time of the collision, he is entitled to the absolute defense of official immunity, and his state employer is entitled to the absolute defense of vicarious official immunity. Therefore, the district court erred as a matter of law, and we reverse.
This appeal raises questions of the applicability of various immunities in a personal-injury lawsuit arising out of a motor-vehicle accident involving a state snowplow.
The dispositive facts are not in dispute. On November 4, 2003, appellant Richard Poupard was working as a snowplow driver for the Minnesota Department of Transportation (MnDOT) and was plowing roads in the Virginia area. One of his assignments was to plow the left-hand lanes of four-lane, divided Highway 53 near the town. At one point he noticed a car in the ditch on the right-hand side of the road. The driver was slumped over the steering wheel.
Poupard decided to render
assistance to the individual in the ditch.
When he believed that it was safe to do so, Poupard lifted his plow,
turned on his right-turn signal, looked into his right-hand mirrors, and began
crossing from the left side of the road to the right shoulder. He saw a glimmer of a headlight behind him,
and he estimated that there was a vehicle traveling toward him that was 800 to
1,000 feet away. When Poupard reached
the right lane, he downshifted, turned off his turn signal, and looked for a
place to move onto the right shoulder.
He was braking for part of his right-hand movement. When his plow
crossed the right fog line, it swerved in the slush on the shoulder and Poupard
touched his brakes again. As he did so,
a car, operated by Duane Dale and carrying respondent Carrie Koivisto as a
passenger, collided with the rear of the plow. Dale, whose blood-alcohol concentration
was .20 at the time of the collision, and Koivisto were injured. Koivisto sued Dale, Poupard, the State of
Asserting defenses of official immunity, vicarious official immunity, and statutory snow and ice immunity, Poupard and the state moved for summary judgment. Without making findings or explaining its ruling, the court denied the motion. This appeal followed.
D E C I S I O N
This is an appeal from the
district court’s denial of summary judgment.
Ordinarily, a denial of summary
judgment is not appealable, but there is an exception to that rule when the
denial is based on a rejection of a statutory or common-law official-immunity
defense. Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 218 (
Because the district court did not include a memorandum with its ruling, we are uncertain whether it found that there are material fact issues for trial or whether, under the facts as they exist, Poupard and the state are not entitled to immunity defenses. But, as to the precise immunity issues, none of the parties contends that there exist dispositive questions of fact. Thus, we take the salient facts identified above as providing the uncontroverted record in this matter and we consider whether, under these circumstances, Poupard and the state are entitled to the protection of immunity defenses.
Common law official
immunity insulates public officials from personal liability for harm allegedly
resulting from their discharge of duties that call for the exercise of judgment
or discretion, unless the officials are guilty of willful or malicious
wrongs. Elwood v.
The purpose of official
immunity is to relieve public officials of the fear that they will become
personally liable for their official actions, which fear could deter or impair
the full performance of their duties.
It is undisputed that, at the time of the collision, Poupard was a public employee of the state and was acting within the scope and course of his official employment duties. The focus then becomes the nature of the function in which Poupard was engaged when Dale collided with the snowplow.
“[C]ommon law official
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.”
A ministerial function is
“absolute, certain, and imperative, involving merely execution of a specific
duty arising from fixed and designated facts.”
Wiederholt v. City of
even if a function is ministerial, official immunity is not forfeited if the
“conduct was required by a protocol established through the exercise of
discretionary judgment that would itself be protected by official immunity.”
Although Poupard and the state point to a policy that MnDOT follows in aiding motorists who are stranded or in distress, this does not appear to be the type of “policy” or “protocol” contemplated by caselaw. MnDOT’s policy is in the record through the affidavit of a MnDOT transportation superintendent: “Plow operators are instructed to stop and aid vehicles that appear to be stranded or in some distress whenever it is safe to do so. Plow operators are given the discretion to determine whether it is safe to stop and aid a vehicle.” Implicit in this policy is the discretion not to stop.
Koivisto argues that the MnDOT policy, such as it is, pertains to snowplowing and that Poupard was not involved in any plowing activity at the time of the collision. Although the facts show that Poupard had lifted the plow blade in anticipation of assisting the motorist slumped over the wheel, such assistance remained within the ambit of the plow operator’s express function. The record shows that literal snowplowing is an official function of the operator of the plow but also that assisting stranded or distressed motorists is an official function of the operator as well.
Koivisto contends that Poupard’s discretion pertained only to the decision of whether or not to stop to aid the motorist and that everything after that decision was ministerial in nature and not entitled to immunity. Thus, she argues, the acts of making the lane change and moving toward the shoulder of the road were but ministerial details.
We reject the notion that the issue of the applicability of official immunity requires the kind of parsing Koivisto urges. Furthermore, immunity necessarily applies to conduct—acts or omissions—and not merely to a decision that might remain unexecuted.
Here, the nature of the function in question, namely, coming to the aid of an apparently distressed motorist, was discretionary in general and in the particulars of its execution. Poupard had to exercise his judgment as a professional equipment operator as to whether it was even safe to try to aid the motorist. He had the option not to stop his plow and instead perhaps call for emergency help. Once he decided that it was safe to stop to aid the motorist, he had to exercise his judgment as to when, where, and precisely how to accomplish the stop safely. None of these details was a purely ministerial act, even though there might exist general traffic regulations as abstract guides. Poupard necessarily had to use his judgment to assess the situation at the outset and to exercise his assessment continuously throughout the performance of the conduct in question. We hold that Poupard’s conduct required the exercise of judgment and discretion and thus was discretionary conduct entitled to the insulation of common law official immunity. Consequently, the state is also protected by vicarious official immunity.
A similar, but not
identical, authority discussed by Poupard, the state, and Koivisto is the Schroeder case in which the supreme
court held that the operator of a state road grader was officially immune from
liability when an accident occurred as he operated the grader against the flow
of traffic. Schroeder, 708 N.W.2d at 508. The court noted that the operator was acting
according to specific policy permitting operation of graders against
Here, the policy is more general in that it does not identify particular conduct that is to be the product of the decision to act as the policy in Schroeder does. Nevertheless, Schroeder does support the proposition that both the decision to act and the execution of that decision are integrally connected with the discretionary nature of the official function.
Because our holding that common law official immunity and vicarious official immunity apply respectively to Poupard and the State of Minnesota, we need not reach the issue of the applicability of snow and ice immunity.