This opinion will be unpublished and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

C7-95-2283

Larry E. Lang,

Respondent,

vs.

Stearns County Sheriff's Department, et al.,

Appellants.

Filed June 11, 1996

Affirmed

Schultz, Judge*

Stearns County District Court

File No. C7-94-2908

Larry E. Lang, 24811 County Road 34, Paynesville, MN 56362 (Respondent Pro Se)

Anthony M. Tarvestad, Dyan J. Ebert, Quinlivan, Sherwood, Spellacy & Tarvestad, P.A., 600 Norwest Center, Box 1008, St. Cloud, MN 56302 (for Appellants)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Schultz, Judge.

U N P U B L I S H E D O P I N I O N

SCHULTZ, Judge

Stearns County Sheriff's Department challenges the district court's denial of summary judgment, arguing that the district court erroneously applied the doctrines of official immunity and vicarious official immunity. We affirm.

FACTS

Respondent Larry Lang reported a burglary of his trailer home and shed to appellant Stearns County Sheriff's Department. Lang also reported that someone had attempted to hot wire a motorcycle that was inside the shed.

The following day, one of the investigating officers reported to her supervisor that she had not observed evidence of tampering with the motorcycle when she was at Lang's residence. The supervisor suggested that it would be beneficial if one of the investigating officers returned to Lang's residence to verify whether someone had tampered with the motorcycle.

Both investigating officers returned to Lang's property to verify the report of the attempted theft of the motorcycle. The officers stated in their report that no one was at the property when they were there. The officers noticed tire tracks leading to a shed, indicating that a motorcycle was inside. They unhooked the door lock and entered the shed. The officers observed the motorcycle and noticed some wires toward the back of the motorcycle appeared to have been slightly tampered with, but the ignition was unharmed. When the officers left the shed, they were unable to shut the door in the same position they had found it and propped the door shut with a metal rod.

Lang later contacted one of the investigating officers, who told him that while she was in the shed she had seen an item that he had reported stolen. Lang then complained about damage done to the shed. The supervisor went to Lang's property and observed apparent damage done to the wooden door of the shed. It appeared as though wind and rain had opened the door and damaged the shed and items inside.

Lang sued the sheriff's department for trespass and prevailed in conciliation court. The conciliation court found that the sheriff's department was negligent in not fastening the door properly when it was foreseeable that the windy weather could damage the shed. The conciliation court also noted that the officers made no effort to contact Lang regarding the continuing investigation on his property before inspecting the motorcycle. The sheriff's department perfected its removal to district court, and the conciliation court judgment was vacated.

Lang alleged intentional trespass, negligent trespass, and a civil rights violation. Both parties brought motions for summary judgment. The district court denied both parties' motions on the negligence claims and dismissed Lang's civil rights claim. This appeal followed.

D E C I S I O N

On an appeal from summary judgment, this court determines if there are any genuine issues of material fact and if the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Summary judgment is appropriate when there are no material issues of fact and one party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. "The evidence must be viewed in a light most favorable to the nonmoving party." Johnson v. County of Dakota, 510 N.W.2d 237, 240 (Minn. App. 1994).

The sheriff's department contends that the district court erred in denying its motion for summary judgment because the district court erroneously applied the doctrines of official immunity and vicarious official immunity, finding that neither doctrine shielded the sheriff's department from Lang's common law claims.

1. Official Immunity

The official immunity doctrine provides that "a public official charged by law with duties which call for the exercise of his judgment 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)). The doctrine involves the type of discretion "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 if "'it is absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.'" Williamson v. Cain, 245 N.W.2d 242, 244 (Minn. 1976) (quoting People v. May, 251 Ill. 54, 57, 95 N.E. 999, 1000 (1911)).

Generally, when police officers are exercising their official duties, they are considered "discretionary" rather than "ministerial" officers and are granted immunity in the exercise of those duties. Leonzal v. Grogan, 516 N.W.2d 210, 213 (Minn. App. 1994), review denied (Minn. July 27, 1994). However, 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).

The district court determined that the conduct at issue was the officers' insufficient fastening of the shed door. The court concluded that this conduct was ministerial because the decision to investigate the shed was made by the officers' supervisor, and the officers merely executed that decision. We agree.

In Duellman, this court distinguished a police officer's decision to return to the scene of a domestic call from the officer's decision to park his car in a particular location upon arriving at the scene. 522 N.W.2d at 380. The decision to park his car was found to be ministerial because it "did not require him to weigh a multitude of factors or exercise judgment under trying circumstances." Id.; see also Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993) (holding that formulation of a case plan was protected by official immunity, but implementation was not). Similarly, in this case, the decision of the officers to prop the shed door closed did not require them to weigh a multitude of factors or exercise judgment under trying circumstances, and thus the decision was ministerial.

Because we find the conduct of the officers was ministerial and not protected by immunity, we need not address whether that conduct was willful and malicious.

2. Vicarious Official Immunity

The sheriff's department also contends that, because the claims are based on the actions of individual officers, the sheriff's department must be dismissed as a party because it is not a legal entity subject to suit. See In re Scott County Master Docket, 672 F. Supp. 1152, 1163 n. 1 (D. Minn. 1987) (finding that the Scott County Sheriff's Department was an office, not a legal entity subject to suit under 42 U.S.C. ' 1983).

The district court concluded, and we agree, that the decision in Scott County is inapplicable to this case because Lang did not bring a claim under 42 U.S.C. ' 1983, but rather under Minn. Stat. ' 466.02 (1994), which provides:

[E]very municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.

"Municipality" is defined, inter alia, as a "public authority." Minn. Stat. ' 466.01, subd. 1 (1994). Thus, the sheriff's department, as a public authority, is subject to suit under the statute.

Affirmed.


Footnotes

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