This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994)

                          State of Minnesota
                            in Court of Appeals
                          C1-96-68, C7-96-91

     Duane P. Norgren, et al.,
     Respondents (C1-96-68),

Appellants (C7-96-91),


vs.

Virgil Winter, Respondent,

O-Aces, Inc., d/b/a O-Aces, et al.,
     Respondents,
     CJM of Waite Park, Inc., d/b/a/ Friend's Bar and Restaurant, et al.,
     Respondents,
     Stearns County Sheriff's Department, et al.,
     Appellants (C1-96-68),

Respondents (C7-96-91).


Filed June 25, 1996
Affirmed in Part and Reversed in Part
Parker, Judge

Stearns County District Court

File No. C9-95-992

Jack L. Vatland, Stephen S. Eckman, Eckman, Strandness & Egan, 501B Butler
Square, 100 North Sixth Street, Minneapolis, MN 55403-1592 (for
respondents/appellants Duane P. Norgren, et al.)

Wilbur W. Fluegel, Wentzel & Fluegel, 701 Fourth Avenue South, Suite 1200,
Minneapolis, MN 55415 (of counsel for respondents/appellants Duane P.
Norgren, et al.)

Frank J. Rajkowski, Rajkowski & Hansmeier, Ltd., 11 Seventh Avenue North,
St. Cloud, MN 56302 (for respondent Virgil Winter)

Bryon M. Peterson, Timothy W. Waldeck, Foster & Waldeck, 300 Metropolitan
Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondents O-
Aces, et al.)

John D. Sens, Wintroub, Rinden, Sens & McCreary, 801 Nicollet Mall, 1910
Midwest Plaza West, Minneapolis, MN 55402


Considered and decided by Parker, Presiding Judge, Randall, Judge, and
Schumacher, Judge.
                                     
                        Unpublished Opinion

PARKER, Judge (Hon. Richard J. Ahles, District Court Trial Judge)

Appellant Duane P. Norgren challenges a district court grant of summary
judgment in favor of CJM of Waite Park, Inc., d/b/a Friend's Bar and
Restaurant. Concluding that Friend's Bar did not illegally serve alcohol to
respondent Virgil Winter in violation of Minn. Stat. 𨶬A.502, the
trial judge determined that there were no genuine issues of material fact
as to Friend's liability, but denied respondent O'Aces, Inc.'s motion for
summary judgment. By notice of review, O'Aces appeals the denial of its
motion.

Appellant/respondent Sheriff James Kostreba and Stearns County challenge
the district court's denial of their motion for summary judgment.
Concluding that Sheriff Kostreba and Stearns County were not entitled to
official or discretionary immunity, the trial judge denied their motions
for summary judgment. We affirm in part and reverse in part.
                                     
                              Decision

Summary judgment shall be rendered
        
        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 judgment as a matter of
        law.

Minn. R. Civ. P. 56.03.

Summary judgment is inappropriate if reasonable people could draw different
factual conclusions from the evidence presented. Illinois Farmers Ins.
Co. v. Tapemark Co., 273 N.W.2d 630, 633 (Minn. 1978). On appeal from
summary judgment, we ask ``whether there are any genuine issues of material
fact'' and ``whether the lower courts erred in their application of the
law.'' State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).
``[T]he reviewing court must view 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).

Whether the acts of a public official ``are a discretionary function is a
legal question ***.'' Snyder v. City of Minneapolis, 441 N.W.2d 781,
786 (Minn. 1989). An appellate court need not, therefore, give deference to
the conclusions of the court below. Id.; see also A. J. Chromy Constr.
Co. v. Commercial Mechanical Servs., Inc., 260 N.W.2d 579, 582 (Minn.
1977) (conclusions of law do not bind an appellate court).

1. Norgren argues that the record supports a finding that a genuine issue
of material fact exists as to whether Virgil Winter was intoxicated upon
arrival at Friend's Bar. He contends that eyewitness and expert testimony
presents a fact question as to whether Winter was served at Friend's Bar in
violation of Minn. Stat. §𨶬A.502, .801 (1994).
        
        No person may sell, give, furnish, or in any way
        procure for another alcoholic beverages for the use
        of an obviously intoxicated person.

Minn. Stat. 𨶬A.502.
        
        [A] person injured in person, property, or means of
        support, or who incurs other pecuniary loss by an

        intoxicated person or by the intoxication of another
        person, has a right of action in the person's own
        name for all damages sustained against a person who
        caused the intoxication of that person by illegally
        selling alcoholic beverages.

Minn. Stat. 𨶬A.801.

Norgren argues that the trial judge erred in granting summary judgment in
favor of Friend's Bar because he improperly weighed the evidence and
resolved fact issues that should have been left to a jury.

The Minnesota Supreme Court defined the ``obvious intoxication'' standard
as follows:
        
        [T]here must be such outward manifestation of
        intoxication that a person using *** reasonable
        powers of observation can see or should see that
        such person has become intoxicated.

Strand v. Village of Watson, 245 Minn. 414, 422, 72 N.W.2d 609, 615
(1955). ``Although a blood test may be admitted to assist the trier of fact
in determining whether the buyer was obviously intoxicated, the test is
insufficient in and of itself to establish a prima facie case of obvious
intoxication.'' Gutwein v. Edwards, 419 N.W.2d 809, 811-12 (Minn.
App. 1988) (holding that appellant's .22 blood-alcohol level, his length of
time at the bar, his erratic driving, and the circumstances surrounding his
accident created at least a minimal fact question). There must be
additional evidence from which it could be reasonably inferred that an
individual was obviously intoxicated. Id. at 812 (citing Strand,
245 Minn. at 422, 72 N.W.2d at 616). Circumstantial evidence is
sufficient to create a fact question regarding obvious intoxication, even
though there is no direct evidence or witness testimony that the patron was
obviously intoxicated when he was sold liquor. Larson v. Carchedi,
419 N.W.2d 132, 134 (Minn. App. 1988) (holding that patron's admission
to consuming a large amount of alcohol, admission that he drank at numerous
locations, erratic driving, and blood-alcohol level of .17 provided
adequate direct and circumstantial evidence to create a fact question). The
totality of the direct and circumstantial evidence advanced in opposition
to the motion must be viewed as a whole to determine whether there are
questions of material fact upon which a trial must be granted. See id.
at 136.

Distinguishing this case from Gutwein and Larson, the trial
judge concluded that the circumstances on the record did not rise to the
level of a ``minimal fact question'' and that there was eyewitness
testimony to support Friend's Bar's argument that when Winter began to
exhibit obvious signs of intoxication, the bartender immediately stopped
serving him. On review of the statutory scheme, the trial judge noted that
there would have to be evidence that Winter was served after exhibiting
obvious signs of intoxication to support a claim. Absent evidence to the
contrary, the trial judge concluded that no genuine issue of material fact
existed as to Friend's liability under the Dram Shop Act and granted
Friend's Bar's motion for summary judgment.

We conclude that the trial judge's application of the shorthand phrase
``obvious intoxication'' was inaccurate. The supreme court has interpreted
the statute to apply where a person using reasonable powers of observation
``can see or should see'' that someone has become intoxicated. See
Gutwein, 419 N.W.2d at 811-12. To hold that the totality of the direct
and circumstantial evidence on the record presented by both movant and
opponent does not present disputed issues of fact appears to have involved
a weighing of the evidence.

There is testimony that Winter's wife could perceive that he had been
drinking. Additional testimony by people at Friend's Bar suggests that

Winter was not only a ``regular,'' but also that many people knew him.
Expert testimony on the retrograde analysis of Winter's blood alcohol level
was specified as being only as to the time of the accident; while there is
disputed evidence as to whether Winter drank in between his stops, that
same expert formulated an opinion as to Winter's condition at the time of
his entrance into Friend's Bar. Viewing the evidence in a light most
favorable to Norgren, we conclude that the trial judge erred in granting
Friend's Bar's motion for summary judgment.

2. Stearns County and Sheriff Kostreba argue that the district court erred
in failing to grant their motions for summary judgment based on either
official or discretionary immunity. They contend that Kostreba's decision
to park ahead of the Norgren vehicles was an exercise of discretion, not
merely a ministerial task, and was thus protected by official immunity.
They claim further that because Sheriff Kostreba did not violate any policy
in deciding how to park his car, he cannot be held to have been negligent
in rendering assistance to Norgren. In the alternative, Stearns County and
Sheriff Kostreba argue that an officer's decision to assist stranded
motorists is a valuable public service and thus must be protected by
discretionary immunity.

Public officials have the burden of proving that their actions are entitled
to immunity. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 n.6
(Minn. 1988). The doctrine of official immunity provides:
        
        [A] public official charged by law with duties which
        call for the exercise of his [or her] judgement or
        discretion is not personally liable to an individual
        for damages unless he is guilty of a willful or
        malicious wrong.

Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988) (quoting
Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976) ).
``Official immunity involves the kind of discretion which is exercised on
an operational rather than a policymaking level, and it requires something
more than the performance of `ministerial' duties.'' Pletan v. Gaines,
494 N.W.2d 38, 40 (Minn. 1992). A duty is ministerial (and unprotected)
``'when it is absolute, certain and imperative, involving merely the
execution of a specific duty arising from fixed and designated facts.'''
Elwood, 423 N.W.2d at 677 (quoting Cook v. Trovatten, 200
Minn. 221, 224, 274 N.W.2d 165, 167 (1937) ). Generally, when police
officers exercise official duties, they are considered ``discretionary''
rather than ``ministerial'' officers and are therefore granted immunity.
Leonzal v. Grogan, 516 N.W.2d 210, 213 (Minn. App. 1994), review
denied (Minn. July 27, 1994). The determination of whether a particular
officer's conduct merits immunity is made on a case-by-case basis. Duellman
v. Erwin, 522 N.W.2d 377, 379 (Minn. App. 1994), review denied
(Minn. Dec. 20, 1994). However, the fact that some judgment is exercised
will not necessarily shield an officer's conduct under the doctrine of
official immunity. Elwood, 423 N.W.2d at 677.

Furthermore, an officer's action can be considered willful or malicious
when that officer intentionally commits an act which the officer has reason
to believe is wrong at the time he or she acts. Maras v. City of
Brainerd, 502 N.W.2d 69, 77 (Minn. App. 1993), review denied
(Minn. Aug. 16, 1993). This determination hinges on whether the individual
intentionally commits an act that the individual has reason to believe is
prohibited. Rico v. State, 472 N.W.2d 100, 108 (Minn. 1991).
Moreover, resolution of this issue presents a fact question for the jury.
Maras, 502 N.W.2d at 77.

As an exception to the general rule of governmental liability,
discretionary immunity must be narrowly construed. Koelln v. Nexus
Residential Treatment Facility, 494 N.W.2d 914, 919 (Minn. App. 1993),
review denied (Minn. Mar. 22, 1993). ``While almost every
governmental act involves some measure of discretion, courts have

distinguished between `conduct at a planning level (protected) and conduct
at an operational level (unprotected).''' McEwen v. Burlington N. R.R.
Co., 494 N.W.2d 313, 316 (Minn. App. 1993) (quoting Nusbaum, 422
N.W.2d at 719), review denied (Minn. Feb. 25, 1993). ``A discretionary act
[for which the governmental entity would be immune from liability] is one
which requires a balancing of complex and competing factors at the
planning, rather than operational, stage of development.'' Ostendorf v.
Kenyon, 347 N.W.2d 834 (Minn. App. 1984). Immunity will not extend to
professional judgment that does not involve a balancing of policy
objectives. McEwen, 494 N.W.2d at 317 (citing Nusbaum, 422
N.W.2d at 722). To establish discretionary immunity, the governmental
entity must produce ``evidence that the conduct was of a policy-making
nature involving social, political or economical consideration.'' Id.
The trial judge concluded that Sheriff Kostreba's decision to assist
the Norgrens and park in front of the vehicles did not involve a policy-
making function and therefore was not an action protected by official
immunity. The trial court also determined that whether Sheriff Kostreba
acted willfully or maliciously presented a disputed issue of fact. As a
matter of law, the trial court concluded that neither Sheriff Kostreba nor
Stearns County was entitled to discretionary immunity.

We cannot agree. While parking forward of the cars might provide evidence
of a violation of a professional standard, showing possible negligence,
Sheriff Kostreba's decision in this case cannot be said to have been a
causative factor in the accident.

This court recently decided the factually similar case of Duellman v.
Erwin, 522 N.W.2d 377 (Minn. App. 1994), review denied (Minn.
Dec. 20, 1994). In Duellman, this court analyzed a police officer's
decision to return to the scene of a car in a ditch after responding to a
domestic call and the officer's decision to park his car in a particular
location upon returning to the scene. Id. at 380. This court found
the officer's decision to return to the scene to be discretionary, but
found the decision to park his car in a certain manner to be ministerial
because it ``did not require him to weigh a multitude of factors or
exercise judgment under trying circumstances.'' Id. Concluding that
it was the parking of the vehicle that involved negligent conduct, this
court determined that the officer was not protected by immunity. Id.
On review of the record before us, the circumstances in this instance
appear distinguishable from Duellman. Despite the absence of a ruling by
the trial judge on causation, the evidence produced is insufficient to
support a finding of causative negligence. The testimony on the record is
that Winter fell asleep at the wheel, immediately prior to the accident.
Because of Winter's unconscious condition, he would not have been able to
have seen the red lights on Sheriff Kostreba's car whether it was parked in
front of or at the rear of the Norgren vehicles. We conclude, therefore,
that absent a showing of causative negligence, Sheriff Kostreba and Stearns
County were entitled to summary judgment.

3. O'Aces asserts by notice of review that the trial court erred in failing
to grant its motion for summary judgment. O'Aces argues that no admissible
direct or circumstantial evidence was presented to support a finding that
Winter was served anything other than soda while on the premises. O'Aces
contends that Winter's testimony is not credible because he was not
competent to testify as to what he drank at the bar. Based on the totality
of the circumstances, O'Aces argues that no genuine issues of material fact
exist and that any other facts are immaterial because an element of a claim
has not been established.

The trial court noted that Winter testified that he had consumed alcoholic
beverages at O'Aces, apparently the last bar visited by him. On review of
Winter's estimated .29 blood alcohol level at the time of the accident,
however, the trial court concluded that a reasonable inference, and thus a
fact question, existed as to whether Winter drank alcohol while at O'Aces.
The district court also noted that Winter's recollection of the events of
the day was accurate. Because the credibility of Winter's testimony and the

likelihood that events happened as he testified at his deposition were
questions for a jury, the trial court denied O'Aces' motion for summary
judgment.

O'Aces contends that all of the evidence presented against its motion was
inadmissible, yet O'Aces failed to object to the validity of any of the
witnesses' testimony prior to the trial judge's determination. Viewing the
evidence in the light most favorable to the opponent of the motion, we
cannot say that the trial court erred in concluding that a genuine issue of
material fact exists as to whether a person using reasonable powers of
observation could or should have seen Winter's intoxicated condition upon
his entry into the O'Aces Bar less than an hour before the accident. We
conclude that denial of O'Aces' motion for summary judgment was proper.

Affirmed in part and reversed in part.