This opinion will be unpublished and

may not be cited except as provided by

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




Shirley Berg, et al.,



Hubbard County,


Filed April 15, 1997

Reversed and remanded

Short, Judge

Hubbard County District Court

File No. C09654

David L. Stowman, 1100 West Lake Drive, P.O. Box 845, Detroit Lakes, MN 56502 (for appellants)

Therese M. Pautz, King & Hatch, P.A., 1500 Landmark Towers, 345 Saint Peter Street, St. Paul, MN 55102 (for respondent)

Considered and decided by Short, Presiding Judge, Schumacher, Judge, and Amundson, Judge.


SHORT, Judge

While traveling southbound on a Hubbard County highway in January of 1993, Robert and Shirley Berg rounded a curve and their minivan's tires went into a rut on the side of the road. When Mr. Berg attempted to maneuver the vehicle out of the rut and back onto the road, the van popped out of the rut and rolled onto its top, crushing Mrs. Berg's right arm between the roof and the ground.

Several years and surgeries later, doctors amputated Mrs. Berg's right hand. The Bergs sued Hubbard County, alleging negligence in design and maintenance of the road. The county moved for summary judgment, claiming immunity from civil tort liability under the snow and ice exemption contained in Minn. Stat. § 466.03, subd. 4. The trial court granted summary judgment in favor of the county. On appeal, the Bergs argue the trial court erred in granting the county summary judgment because: (1) the rut was not a condition caused by a natural accumulation of snow or ice; and (2) the county's plowing fits within the "affirmative act" exception to the statute. We reverse and remand.


On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). While we view the evidence in the light most favorable to the nonmoving party, the nonmovant must produce specific facts that create an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn. 1995). Governmental immunity from tort liability presents a question of law, which we review de novo. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).

Minn. Stat. § 466.02 (1996) declares a municipality liable "for its torts and those of its officers, employees and agents acting within the scope of their employment or duties * * * ." However, the chapter provides an exception to tort liability for

[a]ny claim based on snow or ice conditions on any highway or public sidewalk that does not abut a publicly owned building or publicly owned parking lot, except when the condition is affirmatively caused by the negligent acts of the municipality.

Minn. Stat. § 466.03, subd. 4 (1996) (emphasis added).

The Bergs argue the trial court erred in granting summary judgment where there are disputed fact issues as to the cause and appearance of the rut. We agree. The evidence demonstrates: (1) the rut was caused by wind, rain, and erosion occurring prior to snow and ice accrual; (2) erosion cannot occur after freeze-up; (3) the rut created a dangerous drop-off condition; (4) the rut had caused several other accidents on the same stretch of highway; (5) after the Bergs' accident, a county patrolman warned county road crews that the road was plowed too wide and was causing accidents; and (6) conflict as to the road conditions existing at the time of the accident. Given this record, and viewing the evidence in a light most favorable to the Bergs, genuine issues of material fact exist.

Notwithstanding the factual disputes in the record, the county argues our decision in Koen is controlling here. Koen v. Tschida, 493 N.W.2d 126 (Minn. App. 1992), review denied (Minn. Jan. 28, 1993). In Koen, we held that "when weather is the true culprit, the government is immune," reasoning that snow and ice immunity is not restricted to cases in which a snow or ice condition itself is the sole basis for the claim. Id. at 128 (citation omitted). However, that holding hinged on all of the plaintiffs' claims being based on the icy condition of the highway. Id. Indeed, the Koen plaintiffs' allegations of negligence were necessarily attached to and intertwined with icy road conditions; the plaintiffs' suit against a municipality alleged it did not remove or warn of factors contributing to the iciness of the road, including large shade-producing pine trees. Id. By contrast, the Bergs seek to hold the county responsible for damage caused by a rut that was neither a snow or ice condition itself, nor conclusively bound up with a snow or ice condition. Thus, Koen is not dispositive here, and we decline to apply it beyond its intended reach.

To interpret Minn. Stat. § 466.03, subd. 4, as insulating a governmental entity from negligence every time ice or snow plays even a minor role in an accident would almost certainly guarantee absolute governmental immunity from November to April, and ultimately allow immunity to swallow the general rule of governmental liability.

Because there are genuine issues of material fact with respect to whether the Bergs' claims are based on snow or ice conditions and whether the county's plowing was an affirmative act under Minn. Stat. § 466.03, subd. 4, the trial court erred in granting judgment for the county as a matter of law. Accordingly, we reverse and remand to the trial court for proceedings consistent with this opinion.

Reversed and remanded.