This opinion will be unpublished and

may not be cited except as provided by

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




Rick Jasperson,
as Trustee for the Next of Kin of Decedent J.S.,


Anoka-Hennepin Independent School District No. 11,

Filed October 30, 2007


Stoneburner, Judge


Anoka County District Court

File No. C6049570


Jeffrey R. Anderson, Kathleen O’Connor Stafford, Jeff Anderson & Associates, P.A., Suite E332, E1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)

Lawrence M. Rocheford, Jessica E. Schwie, Jardine, Logan & O’Brien, P.L.L.P., Suite 100, 8519 Eagle Point Boulevard, Lake Elmo, MN 55042 (for respondent)


            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from summary judgment granted to respondent school district, appellant, trustee for the next-of-kin of J.S., argues that the district court erred in determining that (1) the school district did not owe a duty to prevent J.S.’s suicide; (2) as a matter of law, the conduct of the school district’s employees did not cause J.S’s suicide; and (3) appellant’s claims are barred by the doctrines of official and vicarious-official immunity.  We affirm.


In the fall of 2001, J.S. was a 13-year-old eighth-grade student in the respondent Anoka-Hennepin Independent School District No. 11 (the school district).  J.S. lived with his mother and father and his older brother.  The male family members enjoyed hunting, and all of the family members participated in target shooting.  J.S. was familiar with guns and with gun safety.  There were guns in the home, and J.S. had assisted his father in reloading ammunition at a workbench in the home’s basement.

As a sixth- and seventh-grade student, J.S. had received failing grades at the beginning of each school year.  In both years J.S.’s parents grounded him because of the failing grades and told him that he would not be able to go hunting unless his grades improved.  In each of those years J.S.’s grades then improved.  J.S. attended summer school before entering the eighth grade and was taught by Dennis Lande.  Lande was also J.S.’s eighth-grade science teacher.

On or about September 8, 2001, J.S. called his brother from school and asked to be picked up.  Mother questioned J.S. the next day about why he had asked his brother to pick him up, and J.S. told her that two boys, who were not students at J.S.’s school, had been waiting for him after school in the main corridor of the school building.  J.S. told his mother that he had not talked to anyone at the school about this incident.

On September 18, mother saw J.S. run into the house and hide under the bed.  Mother learned from J.S. that he had met the same two boys in a nearby city park and that one of the boys, who thought that J.S. had threatened his younger brother, grabbed and held onto J.S.’s bike.  J.S. told his mother that the boy had threatened to kill him and had said that he knew where J.S. lived and which room was his.  Mother observed that J.S. was very scared.

On September 19 or 20, mother and J.S. met with Assistant Principal John Ploeger.  Mother told Ploeger only about the incident in the park and said that she wanted to file a complaint against the two boys because they were threatening J.S., and she wanted “protection for him until this gets resolved.”  J.S. told Ploeger the names of the two boys, and Ploeger said he knew them as former students who were now attending the Bell Center School for students with behavioral problems.  Ploeger told J.S. and mother that he had seen the two boys in the school parking lot and that charges would be brought against them for trespassing on school property, but that as for protecting J.S. from the boys, Ploeger would have to talk to the school liaison police officer, Brad Wise.  Ploeger gave J.S. advice on changing his route home or leaving with friends, and also told J.S. to come to Ploeger immediately if additional incidents occurred on or off of school property.  Mother says that J.S. cried during this meeting with Ploeger.  Ploeger recalled that J.S. seemed relaxed and was not upset during the conversation. 

Ploeger referred mother and J.S. to Wise, who met with J.S. later in the day.  J.S. told Wise that he had been stopped by two boys while he was biking and one of the boys told him to “stay away from my little brother or I’ll kill you.”  J.S. told Wise that there was no physical contact, that he was not afraid he was going to be hit, and that he rode his bicycle home after the incident.  Wise concluded that no crime had occurred and gave J.S. a “pat speech” about resolving conflicts.  Wise also told J.S to avoid the boys and walk with friends. 

Ploeger and Wise discussed J.S.’s situation later that day and decided that because the incident occurred off of school property, it was not a school matter.  J.S. did not report any additional incidents to Ploeger or Wise and there is no admissible evidence in the record that Ploeger or Wise or anyone at the school was aware that the two boys continued to threaten J.S.  Father and brother testified that J.S. called and asked each of them on separate occasions to pick him up from school after September 19, but that J.S. did not report any threats or confrontations to either of them.  No one in the family or at the school took any further action with regard to the threat that occurred at the park on September 18.

On October 3, J.S. received his mid-quarter grades.  J.S. got an “A” in physical education and an “F” in every other subject.  When Lande gave J.S. his failing grade in science, he made negative remarks to J.S. that were overheard by at least one other student.  The exact words he used are in dispute.  Appellant submitted an unsworn statement from an unidentified student who reported that Lande told J.S. “your life is going nowhere” and called J.S. “one of the [dumbest] students” he had ever taught.  According to the statement, Lande also told J.S. that he was going to fail eighth-grade science and that he would see Lande in summer school.

Lande testified that when he confronted J.S. about his failing grades, J.S. blamed his teachers and said that he was not going to be able to go hunting.  Lande testified that he then said “I guess you won’t be going anywhere soon” or “anywhere fast.”  Lande admitted that he was angered by J.S.’s comments and may have spoken louder than he normally would have.  The unidentified student reported that J.S. put his head down and cried after Lande made his remarks, but that Lande did not see this.

On the evening of October 3, J.S. discussed his grades with his parents.  According to mother, J.S. told her he could not concentrate on school work because the two boys were still threatening him.  J.S. said that the boys waited for him at school but he had not said anything to Ploeger because Ploeger had seen the two boys at the school on several occasions and had not done anything.  J.S. also told his mother about the comment that Lande had made to him earlier that day.  According to mother, J.S. said he had gone to talk to the school’s Prevention Advisor Dawn Rutt after Lande’s class, but she told him that she did not have time to talk with him and that he should come back the next day. 

Mother told J.S. that she would contact the school to have J.S. removed from Lande’s class and to discuss the continuing problem with the two boys.  She reminded J.S. that he would be grounded for two weeks because of his grades and that he could not go deer hunting unless his grades improved.  According to mother, J.S. seemed relieved that she was going to get him out of Lande’s class, and mother recalled nothing out of the ordinary about J.S.’s behavior that evening.  J.S. ran errands with his mother, including a trip to the library where J.S. checked out some books.  The family watched television together, and J.S went to bed.

October 4 was an ordinary morning in J.S.’s household.  Father left for work before J.S. was awake.  Brother woke up, showered and got ready for school.  J.S. woke up, showered and got ready for school.  Brother left for school.  Mother offered J.S. a ride to school which he declined.  This was not unusual because J.S. frequently got a ride to school from friends.  Mother left for work.

When brother got home from school at approximately 2:30 p.m. he found J.S. dead on the living-room floor with a .22 caliber semi-automatic handgun beside him.  J.S.’s mid-term grades and a note were found next to his body.  The note said:

Dear mom, Dad

I relize [sic] my life is going

noware [sic] fast so I decided that

i [sic] don’t need to live anymore

well     i’ll [sic] miss you     bye!

Love, [J.S.]

I [picture of a heart] you

Mom + Dad + [brother] +

[name of dog]!


J.S.’s death was ruled a suicide.  The gun came from his parents’ bedroom, and the bullet apparently came from the basement reloading bench.

Appellant, Rick Jasperson, as trustee for J.S.’s next-of-kin, brought a wrongful-death action against the school district alleging that the negligence or wrongful conduct of the school district’s personnel proximately caused J.S.’s suicide.  The school district moved for summary judgment.  In opposition to summary judgment, appellant submitted deposition testimony; an expert affidavit opining that the actions and inactions of Ploeger, Wise, Lande, and Rutt combined to become substantial factors in J.S.’s decision to commit suicide; unsworn statements from unidentified students taken during an investigation by the Department of Children, Families and Learning; and surveys and statistics regarding suicide and bullying to support the argument that clinical depression and suicide are foreseeable consequences of a school’s failure to identify and constrain bullies from victimizing its students. 

The district court granted summary judgment to the school district.  The district court determined that J.S.’s suicide was not foreseeable, therefore the school district did not have a duty to prevent it.  The district court also determined that, as a matter of law, the actions of the school district’s personnel did not cause J.S.’s suicide.  Additionally, the district court concluded that the acts of Ploeger, Wise, Rutt and Lande are not actionable under the doctrine of official immunity and that the school district is entitled to vicarious-official immunity.  This appeal followed.


On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court views the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03.

In this case, the school district argued and the district court found that many of the facts asserted by appellant are not supported by admissible evidence and cannot be relied on to defeat summary judgment.  Appellant argues that “it is not required to submit only evidence that would be admissible at trial in order to defeat” summary judgment.  Appellant relies on Celotex Corp. v. Catrett for the proposition that a nonmoving party need not “produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”  477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986) (emphasis added).  Celotex does not state, however, that inadmissible evidence can defeat a summary judgment motion.  Inadmissible evidence cannot create a genuine issue of material fact for trial.  The established rule is that “[e]vidence offered to support or defeat a motion for summary judgment must be such evidence as would be admissible at trial.”  Hopkins by LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. App. 1991) (citing Murphy v. County House, Inc., 307 Minn. 344, 349, 240 N.W.2d 507, 511 (1976) (stating that hearsay not admissible at trial must be disregarded on a motion for summary judgment)).  The district court did not err by holding that inadmissible evidence could not be considered.

I.         Duty

“Whether a party has a duty is an issue for the courts to decide as a matter of law.”  Stuedemann v. Nose, 713 N.W.2d 79, 83 (Minn. App. 2006), review denied (Minn. July 19, 2006).  The district court held that the school district did not owe a duty to J.S. to prevent him from committing suicide.  But appellant argues that the duty breached by Ploeger, Wise, Lande, and Rutt is not a duty to prevent suicide, but rather the general duty of a school to exercise reasonable care to not create an unreasonable risk of harm.

            In Minnesota, schools owe a common-law duty to protect school children.  S.W. v. Spring Lake Park Sch. Dist. No. 16,592 N.W.2d 870, 874 (Minn. App. 1999), aff’d, 606 N.W.2d 61 (Minn. 2000).  “While school districts may not be liable for sudden, unanticipated misconduct, they are nevertheless liable for sudden conduct that was foreseeable and that ‘probably could have been prevented by the exercise of ordinary care.’”  Id. (quoting Raleigh v. Indep. Sch. Dist. No. 625, 275 N.W.2d 572, 576 (Minn. 1978)).  A duty of ordinary or reasonable care exists only if a threat is foreseeable.  Id.  In close cases, the issue of foreseeability may be for jury resolution.  Hellman v. Julius Kolesar, Inc., 399 N.W.2d 654, 656 (Minn. App. 1987).   In this case, we agree with the district court that, as a matter of law, the threat that J.S would harm himself was not foreseeable to the school district’s personnel.

            Based on assertions supported largely by inadmissible evidence, appellant has woven a version of the facts in which Ploeger and Wise knew that a terrified J.S. continued to be threatened by the two boys after the September 18 confrontation in the city park, yet they did nothing.  Appellant further asserts that J.S.’s poor grades were due to the continued threats, and that willful and malicious ridicule by Lande and rejection by Rutt were the “last straws.”  Appellant asserts that all of these actions and non-actions of school district personnel combined to cause J.S. to take his life.

But the record does not support assertions that any school personnel knew or had reason to know that J.S. continued to have problems with the two boys after September 18, that J.S.’s failing grades were caused by his terror of the two boys, or that Rutt told J.S. that she did not have time to meet with him.  Mere speculation or conjecture is not sufficient to defeat summary judgment.  Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993).  The district court did not err in concluding that, as a matter of law, given the evidence in this case, Ploeger, Wise, Rutt and Lande could not have foreseen any harm to J.S. and therefore had no duty to protect him from such harm.

II.        Causation

The district court also concluded as a matter of law that the alleged conduct of Ploeger, Wise, Rutt and Lande did not cause J.S.’s suicide.  Causation is generally a question of fact for the jury but “where reasonable minds can arrive at only one conclusion,” causation becomes a question of law which may be disposed of by summary judgment.  Lubbers v. Anderson,539 N.W.2d 398, 402 (Minn. 1995). 

Appellant argues that the school district failed to protect J.S. from a known danger; was in a position to end J.S.’s “terror”; should have anticipated that its failure would likely result in J.S.’s harm; and was in a far superior position to end the threats from the two boys than J.S. or his parents.  But the record does not present a genuine issue of material fact that anyone at the school had any knowledge that J.S. was subject to harm from the two boys based on one boy’s September 18 warning to J.S. to leave his younger brother alone, or that J.S. was in “terror” after he reported that event.  The record does not suggest any change in J.S.’s demeanor or behavior indicating that he was experiencing terror or distress, and none of J.S.’s friends alerted his family or school personnel that J.S. was distressed or in fear.  There is no evidence that J.S.’s suicide was forseeable and therefore could have been prevented. 

Appellant relies on the fact that J.S.’s midterm grades and a suicide note containing the same words Lande allegedly used were found at his side as evidence that Lande’s remarks were a substantial factor in bringing about J.S.’s suicide.  But “a mere possibility of causation is not enough.”  Nguyen v. Control Data Corp., 401 N.W.2d 101, 105 (Minn. App. 1987); Abbett v. County of St. Louis, 474 N.W.2d 431, 434 (Minn. App. 1991) (“A causal connection between the alleged negligence and the injury must be established beyond the point of speculation or conjecture.”)  We conclude that the district court did not err in concluding that, as a matter of law, the required causal connection between the conduct of school personnel and this tragic suicide is not established by evidence in the record.  

III.      Official immunity

The district court concluded that Ploeger, Wise, Rutt and Lande all acted within their discretion and without malice and were entitled to official immunity and that the school district was entitled to vicarious-official immunity.  “The doctrine of official immunity provides:  ‘[A] public official charged by law with duties which call for the exercise of his [or her] judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.’”  Kalia v. St. Cloud State Univ., 539 N.W.2d 828, 832 (Minn. App. 1995) (alteration in original) (quoting Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988)) (other quotation omitted).  A public employee is not protected from liability when exercising ministerial duties which are “absolute, certain and imperative,” and where “a specific duty aris[es] from fixed and designated facts.”  Elwood, 423 N.W.2d at 677.  A ministerial act is either the exercise of established policy or the application of specific guidelines.  S.W., 592 N.W.2d at 876 (citation omitted).  To determine whether an act is ministerial or discretionary, “the court must consider whether the nature, quality, and complexity of [the] decision-making process justifies granting the official immunity.”  S.L.D. v. Kranz, 498 N.W.2d 47, 50 (Minn. App. 1993) (alteration in original) (quotation omitted).  The bar to official immunity arises when “a ministerial duty was either not performed or was performed negligently.”  Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 660 (Minn. 2004).  Before the application of official immunity can be analyzed, a court must first identify the precise conduct at issue.  Mumm v. Mornson, 708 N.W.2d 475, 490 (Minn. 2006). 

a.         Conduct of Ploeger

Appellant argues that the district court’s analysis of official immunity with regard to Ploeger was erroneously based on the premise that appellant was challenging Ploeger’s decision about how to deal with two boys from another school who harassed J.S. off of school property.  Appellant argues that he has consistently asserted that the two boys came to J.S.’s school on more than one occasion and that the district court had to construe the facts in the light most favorable to the non-moving party.  But appellant has failed to produce any admissible evidence that Ploeger was aware that the two boys were on school property or had any contact with J.S. after the September 18 incident in the park was reported to Ploeger.  Ploeger was not contacted by J.S. or his mother after that date, and had no reason to believe that J.S. continued to be threatened.  The district court did not err by analyzing official immunity in the context of what Ploeger knew after the September 19 meeting with J.S. and his mother.  The district court correctly concluded that the school’s code of conduct and anti-harassment policies did not apply to J.S.’s complaint and that Ploeger’s response to that complaint involved an exercise of his judgment and discretion, entitling him to official immunity.

Appellant’s expert criticizes Ploeger for not contacting Bell Center School and for not proactively seeking out J.S. to check on the status of his situation.  The expert also criticizes the school district for failing to have a comprehensive policy regarding bullying, and Ploeger for not being aware of various studies and surveys regarding student victimization.  All of these criticisms may be valid, but none turns Ploeger’s response to the complaints of J.S. and his mother into ministerial acts depriving him of official immunity. 

b.         Conduct of Wise

Wise was responsible for investigating possible criminal matters that occurred at the school.  Appellant’s argument regarding Wise’s conduct appears to be premised on application of the school’s harassment policy.  But as noted above, that policy did not apply to the only complaint known to Wise.  Police officers are “classified as discretionary officers entitled to [official] immunity.”  Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990).  In this case, Wise’s decision about how to handle J.S.’s report of the September 18 confrontation that occurred at a city park reflects the classic type of discretionary exercise by a police officer that gives rise to official immunity.  The district court correctly concluded that official immunity applies to Wise’s response to J.S.’s report.

c.         Conduct of Prevention Advisor Rutt

Even if appellant can establish that Rutt told J.S on October 3 that she did not have time to talk with him and that he should come back the next day, we disagree with appellant’s characterization of such conduct as “clearly ministerial.”  Rutt, the only prevention advisor for some 1,400 students, was required to exercise discretion about scheduling her time with students.  Rutt had no reason to suspect that J.S. was in an immediate crisis on October 3.  The district court did not err in concluding that Rutt is entitled to official immunity for a scheduling decision.

d.         Conduct of Lande

Appellant alleges that because Lande’s comments to J.S. amounted to willful and malicious conduct, he is not entitled to official immunity.  Lande admits he was somewhat angry when J.S. blamed teachers for his failing grades.  Lande said he was using “negative feedback” in an effort to motivate J.S.  The district court concluded that appellant failed to show that Lande’s conduct rose to the level of malice.  This conclusion is supported by appellant’s expert, who found that Lande had little awareness of how his behavior could impact students:

[Lande] did not have a sensitivity and awareness of how his behavior or utterances negatively impacted children.  He did understand the power inequity of the teacher-student relationship and uses it, at times, in ways that negatively impact students.  [Lande] had little understanding of mental health issues impacting adolescents and how teacher behaviors can positively or negatively impact that mental health.


In the context of official immunity, “willful” and “malicious” are synonymous.  Johnson v. County of Dakota,510 N.W.2d 237, 240 (Minn. App. 1994) (citing Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991)).  In Rico, the Minnesota Supreme Court defined malice as “nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.”  472 N.W.2d at 107 (quotation omitted).  Lande’s insensitivity and lack of understanding as expressed by appellant’s expert do not meet this definition.

Appellant relies on the Code of Ethics for Minnesota Teachers, which provides that “[a] teacher shall not knowingly make false or malicious statements about students or colleagues.”  But an investigation by the Department of Children, Families and Learning found that Lande did not violate the Code of Ethics.  Appellant also relies on Lande’s deposition testimony in which he was asked, “Would you agree that a statement to a student that the student’s life is going nowhere fast would be a malicious statement?” and he responded, “I think so, yes.”  But Lande denies making the statement he was questioned about.  Also, Lande put the comment he admits making, about J.S. “not going anywhere,” into the context of his response to J.S.’s statement about being grounded and not being able to go hunting.  The district court did not err in concluding that, as a matter of law, Lande’s conduct, however insensitive, was not willful and malicious and is therefore entitled to official immunity.


IV.      Vicarious-official immunity

Appellant argues that the district court erred in holding that the school district is entitled to vicarious-official immunity.  The Minnesota Supreme Court has explained that denying vicarious immunity to an employer when its employees are so entitled would produce an incongruous result:

The supreme court has justified extending immunity vicariously [to an employer whose employees are entitled to official immunity] on the ground that “to grant immunity to the [employee] while denying it to the [employer] would still leave the focus of a stifling attention on the [employee’s] performance, to the serious detriment of that performance.”


S.W.,592 N.W.2d at 876 (quoting Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993) (alterations in original)).  “[T]he grant of vicarious official immunity should be based on the nature of an employee’s immune conduct.”  Id. at 877 (quotation omitted).  “[G]enerally, immunity attaches vicariously when the nature of the conduct is within the confines of an assigned duty.”  Id.

      In S.W. a stranger whom school employees observed in the school building raped a student in the locker room.  Id. at 872-73.  In that case the school district did not have a security policy in place to cover the presence of strangers in the school during school hours.  Id. at 872.  This court declined to extend vicarious-official immunity to the school district on the basis that it should not be rewarded “for its failure to develop and implement a basic security policy that would have applied in these circumstances.”  Id. at 877. 

Appellant argues that because none of the school district’s policies applied to J.S.’s situation, none of the individual employees involved acted within the confines of an assigned duty.  We disagree.  Although not acting under a defined policy, Ploeger, Wise, Rutt, and Lande were all acting within the scope of their respective jobs.  Ploeger and Wise dealt with J.S.’s complaint, which was plainly within the duties of their employment.  Lande dealt with a student who had poor grades, which was plainly part of his teaching responsibility.  Rutt engaged in the type of time management required by her position as an advisor to some 1,400 students.

      Appellant asserts that a grant of vicarious-official immunity would reward the school district for failing to have a bullying policy in the fall of 2001.  Appellant notes that the school district now has a bullying policy.  There is no evidence, however, that a school bullying policy would have prevented the tragic events in this case, particularly in the absence of any evidence that school personnel knew of any interaction between J.S. and the alleged “bullies” after the reported one-time threat about what would happen if J.S. did not stay away from the younger brother of one of the boys.  We conclude that the policy reasons supporting the denial of vicarious-official immunity in S.W. are not present here.  The district court did not err in extending vicarious-official immunity to the school district under the circumstances of this case.