This opinion will be unpublished and

may not be cited except as provided by

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




Joan Martin, as guardian ad litem for Troy Hoff,


State of Minnesota, plaintiff on impleader,



City of Rochester,


Rochester Township,


Estate of Donald Tlougan,


Filed April 8, 1997

Reversed and remanded

Toussaint, Chief Judge

Olmsted County District Court

File No. C294498

Charles A. Bird, Bird & Jacobsen, 305 Ironwood Square, 300 Third Avenue Southeast, Rochester, MN 55904 (for appellant Joan Martin)

James R. Koby, Parke O'Flaherty, First Bank Place, Tenth Floor, 201 Main Street, LaCrosse, WI 54602-1147 (for appellant Joan Martin)

Mark W. Traynor, Assistant Attorney General, Public and Human Resources Division, 900 NCL Tower, 445 Minnesota Street, St. Paul MN 55101-2127 (for respondent State of Minnesota)

Steven M. Pederson, Pflughoeft, Pederson & Johnsrud, 160 Lafayette Street, Winona, MN 55987-0436 (for respondent City of Rochester)

Jeffrey A. Hanson, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, Rochester, MN 55903-0549 (for respondent Rochester Township)

Robert B. Spelhaug, Muir, Heul, Carlson & Spelhaug, P.A., 404 Marquette Bank Building, Rochester, MN 55903-1057 (for defendant Donald Tlougan)

Considered and decided by Toussaint, Presiding Judge, Lansing, Judge, and Huspeni, Judge.


TOUSSAINT, Chief Judge

This case arose from an auto accident in the City of Rochester. Troy Hoff, a passenger in the vehicle driven by Donald Tlougan, was thrown from the car after it left the roadway and struck a rock. Tlougan was killed. Another passenger, Teri Lane, was not injured. Hoff sustained a severe brain trauma that rendered him incompetent. Appellant Joan Martin, as guardian ad litem for Troy Hoff, commenced an action against respondents City of Rochester (the City), Rochester Township (the Township), and the estate of Donald Tlougan for injuries her son sustained in the accident. The City and the Township moved for summary judgment, alleging no causal connection between the accident and the configuration of the roadway. The trial court granted both motions for summary judgment based on lack of causation and also determined that the Township would be entitled to protection based on discretionary immunity. Because we conclude that (1) there are genuine issues of material fact regarding appellant's negligence claims, and (2) liability of the municipality may exist if there was actual or constructive notice of a defective condition, we reverse.


Summary judgment shall be rendered

[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of 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 court 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 a light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Whether discretionary immunity 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).

Negligence Claims

1. Martin argues the trial court erred in granting respondents's motions for summary judgment regarding her negligence claims. She contends that the trial court erroneously placed the burden of proof on her to show that no genuine issues of material fact existed. She claims that there was ample evidence in the record to show that numerous disputed genuine fact issues existed, and a jury could conclude that the respondents were negligent in the design and maintenance of the road. Because resolution of fact issues are for the jury to decide, Martin argues that the trial court erroneously weighed disputed issues of fact. Therefore, she contends that the grant of summary judgment should be reversed and the case remanded for trial.

A municipality has a common law duty to maintain its roads in a reasonably safe condition. Hansen v. City of St. Paul, 298 Minn. 205, 207, 214 N.W.2d 346, 348 (1974). This includes the duty to warn of potentially hazardous conditions. Larson v. Township of New Haven, 282 Minn. 447, 452, 165 N.W.2d 543, 546 (1969). Proof of a potential hazard may be sufficient to establish a duty. Johnson v. County of Nicollet, 387 N.W.2d 209, 212 (Minn. App. 1986). However, the municipality can only be held liable for failing this duty when it has had actual or constructive notice of the alleged defect. Hanson, 298 Minn. at 207-8, 214 N.W.2d at 348. The question of notice is for the fact-finder. Larson, 282 Minn. at 454, 165 N.W.2d at 547. However, the existence of duty is a question of law. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985). A negligent plaintiff must prove the defendant's breach proximately caused the plaintiff's injury. Schweich v. Ziegler, Inc., 463 N.W.2d 722, 730 (Minn. 1990). The causal connection must be proven beyond the mere possibility the defendant caused the injury; speculation and conjecture are not permitted. Id.

The trial court may not decide factual issues on a motion for summary judgment; its sole function is to determine whether fact issues exist. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981). All doubts and factual inferences must be resolved against the moving party. Id. Proximate cause is usually a question of fact and seldom can be disposed of on a motion for summary judgment. Illinois Farmers, 273 N.W.2d at 633-34. Summary judgment should be granted in a negligence case only if the facts are undisputed and the evidence so clear that it will leave no room for honest differences of opinion among reasonable people. Trepanier v. McKenna, 267 Minn. 145, 149-50, 125 N.W.2d 603 (1963). A motion for summary judgment should be denied if reasonable persons might draw different conclusions from the evidence presented. Illinois Farmers, 273 N.W.2d at 663.

The trial court found that markings on the road would not have prevented the accident. The trial court also found that even if the speed limit had been posted and the roadway marked, these factors would likely have been ignored by Tlougan because he was intoxicated. Furthermore, the trial court noted it could not conclusively determine that had the large rocks not been on the roadside that the victims still would not have been injured. The trial court then concluded that there was no causal connection between the accident and respondents's failure to mark the roadway, post speed limit signs, and maintain the roadway and surrounding areas.

On this record, we cannot say the trial court's grant of summary judgment as to causation was proper. At the outset, we note there are genuine issues of material fact in dispute regarding the issue of causation. There was testimony from appellant's expert that markings on the roadway, appropriate warnings, and speed signs could have prevented the accident. There was also testimony from Lane, another passenger in the car, that the driver was unable to tell where they were located on the road when the mailboxes came into view and, thus, he swerved to avoid hitting the mailboxes.

Conversely, respondents presented witnesses who testified that the absence of markings or warning signs were not contributing factors in the cause of the accident. Furthermore, neither side was able to determine how the accident actually happened. Thus, we cannot conclude that the evidence presented by either side unequivocally resolves the issues in dispute.

We believe the trial court recognized the conflicting testimony and evidence presented by the parties, however, the trial judge went on to decide disputed fact issues, contrary to the standard of proof for summary judgment. The trial court's findings that "I can speculate, but I cannot conclude, that lack of lane markings was the cause of the accident" and "I cannot conclude that similar harm would not have occurred if the rocks were not present", however, "[i]t is true that there are certain areas where a car might leave a roadway at that speed without anyone sustaining serious injuries * * * " denote the existence of disputed fact issues from the evidence presented. Viewing the evidence, as we must, in a light most favorable to appellant, we conclude that the trial court's grant of summary judgment as to causation was improper.

Discretionary Immunity

2. The trial court determined, sua sponte, that the Township and the City were protected by discretionary immunity as to any claims asserted by appellant related to the design of the roadway in question.

In actions alleging that a governmental body failed to safely maintain roads and sidewalks, case law consistently holds that the discretionary act exception does not apply.

Johnson, 387 N.W.2d at 211. Liability is limited, however, to those cases where the municipality has notice, actual or constructive, of the defective condition. Johnson at 212 (citing Hansen, 214 N.W.2d at 348). Furthermore, "[a]s an exception to the general rule of governmental immunity, discretionary immunity must be narrowly construed." Koelln v. Nexus Residential Treatment Facility, 494 N.W.2d 919 (Minn. App. 1993), review denied (Minn.March 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. Co., Inc., 494 N.W.2d 313, 316 (Minn. App. 1993) review denied (Minn.Feb. 25, 1993) (quoting Nusbaum v. Blue Earth County, 422 N.W.2d 713, 719 (Minn. 1988)). "A discretionary act from which the governmental entity would be immune from liability is one which requires balancing of complex and competing factors at the planning, rather than 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 the policy-making nature involving social, political, or economical considerations." Id. This court has found summary judgment on the issue of discretionary immunity inappropriate (1) where there are too many essential material facts in dispute to resolve the issue of immunity on summary judgment because the determinations at issue could have been based in part upon the exercise of professional and scientific judgment or, (2) where they could have involved implementation of policy. Sota Foods, Inc. v. Larson-Peterson & Associates, Inc., 497 N.W.2d 276 (Minn. App. 1993).

The trial court noted that plaintiff complained that 48th Street was negligently designed because it fails to allow vehicles enough room to recover after leaving the road. The trial court then found that the design of roads and surrounding ditch areas were planning decisions, involving considerations of public policy, and therefore, protected by discretionary immunity. The trial court reasoned that because rural township roads are narrow, additional land would have to be acquired to allow for grading along roadways, thereby making that decision a discretionary function. The trial court also reasoned that the pavement upgrade and other minor improvements to 48th Street were within the discretion of the municipality and thus, protected by discretionary immunity.

We hold that the trial court's ruling the City and the Township were entitled to summary judgment based on discretionary immunity was error. On this record, there was ample evidence to support a finding that the City and the Township were on notice of the hazardous condition of the roadway. There was testimony by a city engineer that a work order for a center stripe, a no-passing line, and side markers was given to a work crew to paint on the full length of the roadway to the city limits. There was further testimony that the roadway markings were never completed.

Moreover, we cannot say that the crew's failure to follow the requirements of the work order to paint the roadway constitutes protected conduct of the "policy-making nature involving social, political, or economical considerations." We conclude, therefore, the City and the Township are not entitled to discretionary immunity, and the trial court's grant of summary judgment as to appellant's negligence claims was in error.

Reversed and remanded.