This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1901

Evelyn Anderson,et al.,

Appellants,

vs.

City of Minneapolis,

Respondent,

vs.

Avis Rent A Car System, Inc.,

a foreign corporation,

Appellant.

Filed April 1, 1997

Affirmed

Mulally, Judge

[*]

Hennepin County District Court

File No. PI 95-10058

Harry A. Sieben, Jr., Carol Lynn O'Gara, Sieben, Gross, Von Holtum, McCoy & Carey, Ltd., 900 Midwest Plaza East, Eighth & Marquette, Minneapolis, MN 55402 (for appellants Anderson, et al.)

Michael T. Norton, Acting Minneapolis City Attorney, Larry F. Cooperman, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402-2453 (for respondent City of Minneapolis)

John T. Chapman, Scott Rauser, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402 (for appellant Avis Rent A Car System)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Mulally, Judge.

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

MULALLY, Judge

Appellant challenges the district court's grant of summary judgment in favor of respondent on the basis of official immunity. We affirm.

FACTS

Appellant Evelyn Anderson commenced a lawsuit against respondent City of Minneapolis for injuries she sustained when she was struck by a stolen vehicle driven by Delijah Peeples as he was being pursued by two Minneapolis police officers. Appellant claimed that the negligence of the officers in pursuing and shooting at Peeples caused him to drive in a careless manner, resulting in injury to appellant.

The City of Minneapolis filed a summary judgment motion seeking to dismiss appellant's claims on the ground of official immunity. Following a hearing, the district court granted the City's motion and dismissed appellant's claims on the ground of official immunity.

D E C I S I O N

When reviewing an appeal from summary judgment, this court asks: (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). On appeal, the evidence must be viewed in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.01.

Whether government entities and public officials are protected by official immunity is a legal question that this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). Generally, police officers are considered "discretionary" rather than "ministerial" officers and are entitled to official immunity. Leonzal v. Grogan, 516 N.W.2d 210, 213 (Minn. App. 1994), review denied (Minn. July 27, 1994). The doctrine of official immunity 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) (citations omitted).

Official immunity does not protect an officer from suit if the officer commits a willful or malicious wrong. Rico v. State, 472 N.W.2d 100, 106-07 (Minn. 1991) (citing Elwood, 423 N.W.2d at 677).

In the context of official immunity, malice

means nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.

Id. (citations omitted). However, the supreme court has made clear that the willful or malicious wrong exception contemplates something more than the doing of an intentional or willful act. Id.

The defendant must have reason to know that the challenged conduct is prohibited. The exception does not impose liability merely because an official intentionally commits an act that a court or jury subsequently determines is wrong. Instead, the exception anticipates liability only when an official intentionally commits an act that he or she has then reason to believe is prohibited.

Id.

Whether an officer acted willfully or maliciously is generally a question of fact to be resolved by a jury. Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990). Such a determination "turns on the facts of each case." Elwood, 423 N.W.2d at 678.

Appellant claims (1) that the use of deadly force by Officers Pielow and Villella was unjustified and unreasonable and (2) that the officers should have terminated their pursuit. However, appellant has failed to produce any evidence that Officers Pielow and Villella knew, or had reason to know, their conduct at the time was prohibited. Absent such a showing, the officers' conduct is protected by official immunity. See Johnson v. County of Dakota, 510 N.W.2d 237, 240 (Minn. App. 1994) (holding "In the absence of willful or malicious conduct, respondents are entitled to summary judgment on the basis of official immunity.").

Appellant argues that the officer's use of deadly force was unjustified. Appellant cites to Peeples' deposition testimony in which he stated that he would have voluntarily surrendered at the intersection of Sixth and Nicollet but for the shots fired by the officers. However, this ignores the fact that Peeples had several opportunities to surrender to police but refused to do so. When Officers Pielow and Villella opened fired on Peeples in the Cadillac, it is undisputed that they were aware that Peeples had committed a felony using deadly force, was attempting to flee, and that he had already hit two individuals as a result of his driving conduct. Under the circumstances, the officers' actions were permissible. See Minn. Stat § 609.066, subd. 2 (1996) (prescribing when the use of deadly force is allowed). Moreover, the officers did not open fire on Peeples until after he had rammed the vehicle in front of him and began driving away from the scene. It therefore cannot be said that the officers' shooting caused Peeples to flee.

Also, contrary to appellant's assertions, opening fire on a stopped vehicle is not directly contrary to Minneapolis Police Department Operations. Minneapolis Police Department Manual section 5-303, Justified Use of Force, cited by appellant, makes no mention that firing on a stopped vehicle is prohibited.

Finally, the affidavit of Roger Ledding, the former chief of the Minnesota State Patrol, does not raise any genuine issues of material fact. According to Ledding's affidavit, a reasonably well-trained officer would have believed it necessary or reasonable to terminate the pursuit of Peeples and would not have believed it necessary or reasonable to shoot at and into the vehicle driven by Peeples.

Even assuming the statements of Ledding to be true, it misses the focus of the inquiry under the willful or malicious exception: whether the officers, at the time of the incident, had reason to know their conduct was prohibited. Appellant has offered no evidence that Officers Pielow or Villella knew or had reason to know their actions were prohibited. Under both the police manual and Minn. Stat. § 609.066, subd. 2, the officers had the authority and discretion to use deadly force in their attempt to apprehend Peeples. He had already fled the police and had injured two innocent third parties by his driving conduct. This court has held that an officer's decision to use deadly force is discretionary, requiring the exercise of judgment or discretion. Maras v. City of Brainerd, 502 N.W.2d 69, 77 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993). Similarly, the supreme court has held that the decision to engage in a car chase and to continue such a chase is one protected by official immunity. Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992).

We conclude that the district court did not err in concluding that the actions of Officers Pielow and Villella are protected by official immunity. The actions of Officers Pielow and Villella are the very type of decisions the doctrine of official immunity seeks to protect. That another course of action, in hindsight, may have been preferable or that the officer's actions were wrong engages in the second-guessing the doctrine of official immunity seeks to avoid. See id. at 41 (noting that official immunity is provided because the community cannot expect its police officers to fulfill their duties and then second-guess them when they conscientiously attempt to fulfill them).

Lastly, appellant argues that, even if the conduct of the officers is protected by official immunity, the City of Minneapolis should not also be protected by the doctrine of official immunity. Appellant merely asserts that the facts do not support an independent finding of governmental immunity. We disagree.

As the supreme court noted in Pletan:

If vicarious official immunity does not apply [to the officers' employer], the conduct of the immunized police officer must still be reviewed in order to impose liability on the employer. But then the purpose of official immunity, which is to shield an officer's exercise of independent judgment from civil adjudication, is, as a practical matter, defeated. Police officers may justifiably think their own employment performance is being evaluated and consequently may decline to engage in pursuit when pursuit is indicated.

494 N.W.2d at 42.

We conclude that under the supreme court's holding in Pletan, the immunity of Officers Pielow and Villella applies to their employer, the City of Minneapolis.

Affirmed.

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