This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-1788

Anthony Laska, et al.,

Respondents,

Metropolitan Council Transit Operations, f/k/a MTC,

Plaintiff,

vs.

Alton Williams, et al.,

defendants and third-party plaintiffs,

Respondents,

vs.

City of Minneapolis,

third-party defendant,

Appellant.

Filed March 11, 1997

Reversed

Norton, Judge

Hennepin County District Court

File No. CT-95-7005

Jay A. Tentinger, Johnson & Condon, P.A., 7235 Ohms Lane, Minneapolis, MN 55439 (for Respondents Alton Williams and Norris Creamery a/k/a Land O'Lakes, Dairy Fresh)

Douglas E. Schmidt, Krass Monroe P.A., 1100 Southpoint Office Center, 1650 West 82nd Street, Bloomington, MN 55431-1447 (for Respondents Anthony Laska and Brenda Laska)

Jay M. Heffern, City Attorney, Larry L. Warren, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Appellant City of Minneapolis)

Howard S. Carp, Borkon, Ramstead, Mariani, Letourneau, Ltd., 485 Northstar East, 608 Second Avenue South, Minneapolis, MN 55402 (for Plaintiff Metropolitan Council Transit Operations)

Considered and decided by Norton, Presiding Judge, Huspeni, Judge, and Foley, Judge.[*]

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

NORTON, Judge

The City of Minneapolis contends the district court erred in denying summary judgment on the basis of statutory or official immunity. The City's decisions regarding sign removal were discretionary operational decisions to which vicarious official immunity applies. We reverse.

FACTS

At 3:02 a.m. on November 2, 1992, the Minneapolis Police Department informed the Street Maintenance Division of the Minneapolis Department of Public Works that the semaphore at Lowry and Lyndale Avenues North in Minneapolis was out of service as a result of a power outage. A street maintenance employee arrived at the intersection by 3:20 a.m. and set up an octagonal stop sign on the center line of each roadway at the intersection. By 4:15 a.m., power had been restored and the traffic lights were functioning. The crew returned to Lyndale and Lowry Avenues at approximately 8:15 a.m. to remove the stop signs.

Between the time that the power was restored and the maintenance crew returned to pick up the stop signs, this intersection had both an operating stop light and four octagonal stop signs controlling traffic. At approximately 6:45 a.m., respondent Alton Williams was driving a semi tractor-trailer for his employer, respondent Norris Creamery, as he approached the intersection. The street conditions were slippery and glazed over. Williams witnessed the car in front of him fishtail as it approached the intersection. Soon thereafter, the semaphore turned green and the car in front of Williams began to proceed into the intersection. Suddenly, the car slammed on its brakes and came to a stop. Williams, following approximately 15-20 feet behind the car, applied his brakes, but was unable to stop. Williams' truck slid into an MCTO bus parked on the corner and the sideview mirror of the truck shattered the driver's window on the bus. As a result of the accident, the bus driver, respondent Anthony Laska, was injured.

The MCTO brought this action against Williams and Norris Creamery. Anthony and Brenda Laska intervened in the action. Williams and Norris Creamery brought a third-party complaint against appellant City of Minneapolis, alleging that the City's negligence in managing the traffic signs at the intersection was a proximate cause of the accident and the injuries here.

The City moved for summary judgment on the basis of two forms of governmental immunity: immunity from claims arising from the accumulation of ice and snow and vicarious official immunity. The district court ruled that the City is not entitled to immunity and denied its motion for summary judgment.

D E C I S I O N

The court will grant a motion for summary judgment only when a party shows that no genuine issue of material fact exists. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). A reviewing court is not bound by a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

The City claims it is entitled to vicarious official immunity based on the Public Works employees' decisions regarding the traffic signs. The purpose of official immunity is to "insure that the threat of potential personal liability does not unduly inhibit the exercise of discretion required of public officials in the discharge of their duties." Holmquist v. State, 425 N.W.2d 230, 233 n.1 (Minn. 1988). The supreme court has recognized the doctrine of vicarious official immunity in cases where a party sues a governmental employer and claims an employee acted negligently. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992). In determining whether to extend official immunity to a public employer, the court considers whether the absence of immunity would cause the employee to be so concerned about the evaluation of his or her job performance that it would limit his or her exercise of independent judgment. Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, 272 (Minn. App. 1996), review denied (Minn. Sept. 20, 1996).

Official immunity involves discretionary decisions made on an operational rather than a policymaking level. Pletan, 494 N.W.2d at 40. Operational decisions are "something more than the performance of 'ministerial' duties." Id. Ministerial duties are "absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts." Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937), quoted in Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988).

The City's claim of immunity presents this question: was the placement and/or removal of temporary stop signs a discretionary operational decision, to which vicarious official immunity applies, or a ministerial decision, to which vicarious official immunity does not apply?

Although the City argues that the city worker exercised his discretion and judgment when he chose where to place the stop signs at the intersection, that conduct is not at issue here. The City's delay in recovering the signs is the issue; respondents object to the fact that the signs were still present at the intersection two hours after the power had been restored.

The record shows that the City lacks any standard policy for picking up the signs when, as here, they have been placed during the overnight shift and power is restored before the daytime crew begins at 6:30 a.m. Street maintenance engineer Michael Kennedy testified in his deposition that the City has no procedure for sign removal in this situation. He also explained that the street maintenance crew that works through the night has no way of knowing when the power has been restored. As the system exists now, the street maintenance crew will only pick up temporary signs when they receive notice that the signs are no longer needed.

On the day of the accident, the record shows that Gordon Tanke, a signal systems engineer, was in charge of dispatching the crews to retrieve the temporary signs. Roger Plum, another engineer, explained that Tanke set the priority for retrieving the signs, depending on the traffic situations occurring at the time. Tanke did not operate from a written policy because none existed; he set the priorities.

Tanke's decision falls within the definition of operational duties. Pletan, 494 N.W.2d at 40 (operational decisions require some discretion and are not ministerial). His decision about retrieving the signs was neither based on written policy nor was it a "certain and imperative" duty arising from a fixed set of facts. See Cook, 200 Minn. at 224, 274 N.W.2d at 167 (defining "ministerial duties"). Tanke's decision was based on his exercise of discretion in managing the workload of the crew and the traffic situations occurring at the time. While we are troubled by the safety hazard that the City creates by failing to remove the temporary signs in a timely manner, the doctrine of vicarious official immunity shields the City from this lawsuit arising out of its employee's present failure to act. In view of this decision, we need not address the City's alternate claim of statutory immunity.

Reversed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.