This opinion will be unpublished and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

C2-96-726

William and Carol Belkey, as parents and natural

guardians for Michael T. Belkey,

Respondents,

vs.

Independent School District No. 16,

Appellant,

Michael and Laura Seleen, as parents and legal

guardians for James Ritter,

Defendants.

Filed October 8, 1996

Affirmed

Schumacher, Judge

Anoka County District Court

File No. C8952921

Jon P. Erickson, Scott M. Lepak, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Coon Rapids, MN 55433-5876 (for Respondents)

Eric J. Magnuson, Michael J. McGuire, Karen Imus Johnson, Rider, Bennett, Egan & Arundel, L.L.P., 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Harten, Judge.

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

SCHUMACHER, Judge

Independent School District No. 16 (the school district) appeals the district court's determination that statutory immunity[1] and official immunity do not apply to this action. We affirm.

FACTS

Eleven-year-old Michael Belkey was injured when classmate James Ritter tackled and kicked him while they and others were playing a game of keep-away during a reward recess period at Kenneth Hall Elementary School. Respondents William and Carol Belkey, as Michael's parents and natural guardians, brought suit against the school district and Michael and Laura Seleen, Ritter's parents. Both the school district and the Seleens moved for summary judgment, arguing that Michael assumed the risk of injury inherent in the keep-away game. The school district also moved for summary judgment on the grounds of statutory immunity and official immunity. The district court granted the Seleens' motion, but denied the school district's motion in its entirety. The school district appeals the denial of summary judgment based on immunity. (The school district also petitioned for discretionary review of the district court's ruling relating to assumption of risk, but this court denied the petition.)

A school board composed of seven elected officials manages the school district. The board delegated to school principals the authority to determine whether and when to use reward recess periods to encourage good behavior. The principals also have the authority to determine what level of supervision is necessary for students during recess periods. Robert Hakala, the principal at Kenneth Hall Elementary, gave homeroom teachers the discretion to implement a reward recess period to encourage good behavior.

Under the reward system, students who have behaved well are allowed to go outside for an additional recess while students who have misbehaved must stay inside. Teachers for a particular grade level usually decide to implement the policy together. Typically there are three teachers per grade level, and two of the teachers go outside with the well-behaved students during the reward recess, while the third teacher remains inside with the other students. Hakala stated in his deposition that the school has a no-tackling policy. Also, if students' play is too rough, supervisors are to stop the play.

D E C I S I O N

A denial of a defense motion for summary judgment based on claims of governmental immunity is immediately appealable. McGovern v. City of Minneapolis, 475 N.W.2d 71, 72-73 (Minn. 1991). On an appeal from a denial of summary judgment, an appellate court examines the record to determine whether any genuine issues of material fact exist and whether the district court properly applied the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). The determination of whether statutory immunity or official immunity applies is a question of law that an appellate court reviews de novo. Johnson v. State, __ N.W.2d __, __ (Minn. Aug. 29, 1996).

1. A municipality is immune from liability for

[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.

Minn. Stat. § 466.03, subd. 6 (1994). In determining whether an action is protected by this statutory immunity, the supreme court has distinguished between planning activities (generally protected) and operational activities (generally unprotected). Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn. 1992). Planning-level decisions involve

questions of public policy, that is, the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy. Operational level decisions, on the other hand, involve decisions relating to the ordinary day-to-day operations of the government.

Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988). The governmental entity bears the burden of proving that it is immune from liability. Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 n.6 (Minn. 1988).

The school district argues that the district court erred by characterizing the Belkeys' claim as one relating to the negligent implementation of the school district's no-tackling policy. The school district contends that the focus instead should be on Hakala's decisions about (1) the use of a reward period and (2) the number of teachers and resources devoted to supervising such periods. According to the school district, any failure of supervision resulted from "the natural inability of a few teachers to watch every student every minute," and so "the focus necessarily must shift to the underlying policy itself which determined the number of teachers necessary to act as supervisors."

We agree with the district court, however, that the nature of the Belkeys' claim does not relate to the school district's alleged negligence in formulating a reward period or its decisions about how such periods are to be supervised. The Belkeys instead claim that Michael was negligently supervised. This challenged activity did not involve any balancing of policies. The school district had a clear no-tackling policy, and enforcing that policy is operational-level conduct that is not protected by statutory immunity. See Rico v. State, 472 N.W.2d 100, 104 (Minn. 1991) (in most cases, implementation of policy simply involves applying established policy to particular fact scenario and is unprotected from liability).

2. Official immunity

protects from personal liability a public official charged by law with duties that call for the exercise of judgment or discretion unless the official is guilty of a wilful or malicious wrong.

Id. at 106-07. If official immunity protects the government employee from suit, "the government entity will not be liable for its employee's torts under [Minn. Stat. § 466.02 (1994)] or under common law respondeat superior." Watson v. Metropolitan Transit Comm'n, __ N.W.2d __, __ (Minn. Aug. 29, 1996).

Ministerial acts are not protected. Rico, 472 N.W.2d at 107. The supreme court

has described an official's duty as ministerial "when it is absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts."

Id. (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W 165, 167 (1937)). In deciding whether an act is ministerial the court must consider whether "'the nature, quality, and complexity of [the] decision-making process'" justifies granting official immunity. Larson v. Independent Sch. Dist. No. 314, 289 N.W.2d 112, 120 (Minn. 1979) (quoting Williamson v. Cain, 310 Minn. 59, 61, 245 N.W.2d 242, 244 (1976)).

The school district argues that the teachers' duties as supervisors required them to use operational discretion in deciding where to stand, where to focus their attention, and which students were most in need of supervision. We disagree. Carrying out the established no-tackling policy is a ministerial function. The supervisors need only enforce that policy; it does not require complex decisionmaking. See Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993) (social worker's decisions about development of case plan for abused child who resided with abuser parent was protected under official immunity, but implementing the plan was ministerial because it involved "the execution of assigned tasks").

Moreover, the policy behind official immunity supports the district court's refusal to apply it here. Imposing liability on the supervisors will not deter them from carrying out established policies, but rather will encourage them to exercise care when carrying out a duty that requires little independent judgment. See S.L.D. v. Kranz, 498 N.W.2d 47, 50 (Minn. App. 1993) (rationale behind official immunity is that imposing liability for discretionary conduct would deter public employees from exercising judgment when making decisions based on public policy, whereas imposing liability for ministerial acts merely encourages public employees to exercise care in actions that require little or no independent judgment).

Affirmed.

[ ]1 As the supreme court has recently done, we will use the term "statutory immunity" to describe immunity pursuant to Minn. Stat. § 466.03, subd. 6 (1994), that previously has been referred to interchangeably as statutory discretionary function immunity, discretionary function immunity, statutory discretionary immunity, and discretionary immunity. See Johnson v. State, __ N.W.2d __, __ n.1 (Minn. Aug. 29, 1996); Watson v. Metropolitan Transit Comm'n, __ N.W.2d __, __ n.1 (Minn. Aug. 29, 1996).