This opinion will be unpublished and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

C7-96-866

Loida Montemayor, individually;

as Guardian ad litem of N. M.,

Appellant,

vs.

Special School District No. 1,

Respondent.

Filed November 5, 1996

Affirmed in Part and Reversed in Part

Parker, Judge

Hennepin County District Court

File No. PI947465

J. Anthony Torres, Margaret A. Skelton, Torres Law Offices, Inc., 1401 West 76th Street, Suite 400, Richfield, MN 55423 (for appellant)

Timothy J. Pawlenty, Karen Janisch, Rider, Bennett, Egan & Arundel, P.L.L.P., 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Sharon L. Van Dyck, Schwebel, Goetz, Sieben & Moskal, P.A., 5120 IDS Center, Minneapolis, MN 55402-2246 (for amicus Minnesota Trial Lawyers Association)

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.

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

PARKER, Judge

Appellant Loida Montemayor, individually as guardian ad litem of her son, N.M., commenced an action against respondent Special School District No. 1 (District) for injuries her son sustained when he was assaulted by two students at Henry High School. The District moved for summary judgment on all claims based on vicarious official immunity. Concluding that the Henry High School Principal Michael Heurth had formulated and implemented a safety/security plan, the trial court granted the District's motion, but denied its motion as to Principal Heurth's implementation of the plan. The trial court also denied the District's summary judgment motion as to Montemayor's negligence claims. Because the Minnesota Supreme Court filed opinions in Johnson v. State, 553 N.W.2d 40 (Minn. 1996), and Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406 (Minn. 1996), on the day of oral arguments on this case, we called for supplementary briefing. We affirm in part and reverse in part.

D E C I S I O N

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 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). "The 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).

Denial of a motion for summary judgment based on a claim of governmental immunity is appealable as a matter of right. McGovern v. City of Minneapolis, 475 N.W.2d 71, 72 (Minn. 1991). Whether discretionary immunity[1] applies is a question of law for an appellate court to review without deference to the trial court. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).

1. Safety/Security Plan

Montemayor argues that the trial court erred in determining that the District is entitled to vicarious official immunity regarding the delegation of the duty to formulate a safety/security plan to Principal Heurth. She contends that because her son was assaulted at school, it is questionable whether there was a safety/security plan in place at Henry High School. She claims that Principal Heurth's failure to (1) include names of all expelled students on the monitor's daily suspension list; (2) have a back-up plan for absent monitors; and (3) review and supervise the school monitors are all evidence that the principal did not have a safety/security plan in place. Because Principal Heurth's deposition testimony provides the only evidence that a safety/security plan existed, Montemayor argues that this is a disputed issue of material fact that should be left to a jury. Furthermore, she contends that Principal Heurth's testimony supports the conclusion that his decisions were based on professional judgment, not a balancing of policy issues, thereby preventing the application of vicarious official immunity to the District.

Montemayor also argues that the trial court correctly determined that the school's actions were ministerial and that the District was not entitled to discretionary immunity in its delegation of the safety/security decisions to school principals. Montemayor contends that by delegating the safety responsibilities to the principals, the District recklessly disregarded the safety of Henry High School students by failing to ensure that the school had a viable security plan in place. Montemayor argues that delegation of the duty to provide a safe environment for students, without ensuring that the principals have a security plan, precludes discretionary immunity from attaching because both the District and Principal Heurth failed to provide a security plan.

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] 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)). In determining whether the official has committed a willful or malicious wrong, the fact-finder must consider whether the official has intentionally committed an act that he or she had reason to believe is prohibited by statute or the constitution. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994) (citing Rico v. State, 472 N.W.2d 100, 107-08 (Minn. 1991)). "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. 165, 167 (1937)).

"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., Inc. 494 N.W.2d 313, 316-17 (Minn. App. 1993) (quoting Nusbaum, 422 N.W.2d at 719), review denied (Minn. Feb. 25, 1993). "A discretionary act is one which requires a balancing of complex and competing factors at the planning, rather than the operational, stage of development." Ostendorf v. Kenyon, 347 N.W.2d 834, 837 (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 considerations.'" Id.

The trial court determined that Principal Heurth's conduct in regard to formulating the high school premises safety/security plan was the government conduct at issue. The trial court also determined that creating the safety/security plan for Henry High School involved professional planning at the operational level in the discharge of an assigned governmental duty. Noting that Principal Heurth was not a party to this action, the trial court concluded that he would be protected by official immunity in formulating the safety/security plan, thereby extending protection to the District based on vicarious official immunity. However, the trial court found that implementation of the plan would not be protected by official immunity because it involved the execution of assigned tasks, which would be ministerial in nature.

The trial court then concluded that the District was not protected by discretionary immunity in its delegation to principals of all decisions regarding building safety/security. Because there was no "city-wide" policy regarding student safety, the resulting decisions were largely based on professional judgment and not entitled to discretionary immunity.

We cannot say that the trial court erred in concluding that the District was entitled to vicarious official immunity regarding Principal Heurth's formulation of the Henry High School safety/security plan. Principal Heurth testified that he formulated a safety/security plan. Formulation of the plan involved professional planning in that Principal Heurth decided to hire (1) two assistant principals; (2) four assistants to the principal; and (3) one part-time, rotating, off-duty police officer. He also sought assistance from the Minneapolis Police Department to have a police liaison officer assigned to the school. Principal Heurth's testimony indicates that supervision of the students was coordinated with the individuals hired to assist with security, whereby "critical zones" within the school were monitored. The monitors were also provided daily suspension lists to help them identify troublesome students who were barred from the premises. Although Montemayor argues that no plan was developed as required by the board, we are directed to nothing to support her contention that the plan was required to be written. Principal Heurth was not a party to this suit; therefore, it is not necessary to require a predicate lawsuit against the board before allowing vicarious official immunity to attach. See Pletan, 494 N.W.2d at 42 (whether to extend official immunity is a policy question). We conclude that the trial court did not err in holding the District entitled to vicarious official immunity based on Principal Heurth's formulation of the safety/security plan.

We observe that the trial court's finding that implementation of the plan would not be entitled to official immunity is incorrect. A very recent decision by our supreme court is instructive on this issue. In Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406 (Minn. 1996), plaintiff Matthew Watson was a passenger on a bus operated by the Metropolitan Transit Commission (MTC) when he was assaulted by other passengers on the bus. Our supreme court explained:

Here, [the bus driver's] decisions in a situation where passengers were being assaulted were clearly not "absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts." The situation unfolded in a manner which was far from "fixed and designated" and called for the exercise of judgment and discretion on the part of [the bus driver] for the protection of all the passengers on the bus. Furthermore, the public policy underlying official immunity, to ensure that the threat of liability does not inhibit the exercise of discretion required of public officers, supports the immunization of [the bus driver's] decisions. We conclude that the exercise of discretion required of [the bus driver] in the volatile situation caused by the assault upon Watson and his companion is protected by official immunity. Further, it would be anomalous under the circumstances of this case to impose liability on the MTC for the very same acts for which [the bus driver] receives immunity. See Pletan v. Gaines, 494 N.W.2d at 42.

Id. at 415.

We conclude that the circumstances of this case bring it within the holding of the supreme court in Watson. The decision where to locate the supervisory personnel inside and outside Henry High School involved an exercise of judgment and discretion by principal Heurth and cannot be said to be ministerial. Therefore, it was error for the trial court to conclude that the District was not entitled vicarious official immunity based on Principal Heurth's implementation of the safety/security plan

Similarly, we observe that it was error for the trial court to conclude that the District would not be entitled to summary judgment based on discretionary immunity in delegating to the schools the duty to make decisions regarding building safety/security. The District's decision to delegate this responsibility to each school is a policy decision involving social, political, and economical considerations. See McEwen, 494 N.W.2d at 317. Montemayor has not shown that the District's decision to delegate security matters to the individual schools is not based on policy-making considerations. We conclude, therefore, that it was error to deny the District's motion for summary judgment on the basis of discretionary immunity.

2. Negligence Claims

The trial court denied the District's motion for summary judgment as to Montemayor's negligence claims. The trial court determined that the issue of negligence was a close question because (1) Principal Heurth had knowledge of gang activity in the community; (2) frequent violence in and near Minneapolis public schools has been extensively covered in the local media; (3) students at Henry High School have submitted affidavits about violence in and about the school; (4) one of Montemayor's attackers was transferred to Henry High School with knowledge of his extensive disciplinary record and possible involvement with a gun; and (5) the other attacker was on suspension for pushing another student. On these facts, the trial court concluded that a jury could find that an assault was foreseeable, thereby sustaining Montemayor's negligence action.

We hold that the trial court's ruling that the District was not entitled to summary judgment based on discretionary immunity was error. Because the District is entitled both to vicarious official immunity and discretionary immunity, we conclude that resolution of the merits of Montemayor's negligence claim is barred by that immunity.

Affirmed in part and reversed in part.

[ ]1 Throughout this opinion we will refer to immunity, within the meaning of the statute set out, as "discretionary immunity," as distinguished from "official" or common law immunity. Minn. Stat. § 466.02 (1994) provides, "every 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." Minn. Stat. § 466.03 (1994) excepts, in subdivision 6, "any claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused."