This opinion will be unpublished and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

C6-96-2138

Tyler P. Emmons,

Appellant,

vs.

Olmsted County, a political

subdivision of the State of Minnesota,

Respondent.

Filed May 20, 1997

Affirmed

Mulally, Judge

[*]

Olmsted County District Court

File No. C6-96-511

Mark W. Delehanty, Klampe & Delehanty, 300 Broadstreet on the Park, 300 First Avenue NW, Rochester, MN 55901 (for Appellant)

Gregory J. Griffiths, Dunlap & Seeger, P.A., Marquette Bank Building, 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903-0549 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Davies, 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 contends that the district court erred in granting summary judgment in this negligence action. The district court did not err in granting summary judgment because respondent is protected by statutory immunity. We affirm.

FACTS

Appellant Tyler P. Emmons sustained severe and permanent injuries when his vehicle collided with the abutment to Olmsted County bridge 7174. The bridge was constructed in 1958 on the south branch of the Zumbro River. The bridge plan, which did not include guardrails on the approach lanes to the abutment, was approved by the Minnesota Department of Transportation and constructed according to all requirements and specifications in existence at that time. The bridge has not been remodelled or reconstructed since it was built. The shoulders of the highway leading to the bridge were widened in 1987, but the travel lanes on the bridge remained the same. The bridge abutment Emmons struck has a yellow and black striped warning sign on it.

Emmons filed this negligence action against respondent Olmsted County alleging that Olmsted County was negligent in the design, construction, repair, and maintenance of the county road approaching the bridge and the bridge, and that this negligence was the proximate cause of the injuries he sustained. Olmsted County filed a motion for summary judgment on several grounds, including statutory immunity.

Following a hearing, the district court granted Olmsted County's summary judgment motion, concluding that Olmsted County was protected by statutory immunity with respect to its decisions regarding the bridge. Alternatively, the district court stated that even if Olmsted County was not protected by statutory immunity, it likely would not be liable for negligence because it had no actual or constructive notice of any dangerous condition on the bridge and because Emmons had failed to establish causation.

On appeal, Emmons contends that the district court erred by granting Olmsted County's motion for summary judgment. Emmons argues that Olmsted County's failure to install protective guardrails and warning signs on the bridge was not conduct protected by statutory immunity. Furthermore, Emmons argues that the district court erred by concluding that Emmons presented no evidence that Olmsted County had actual or constructive knowledge of the conditions at the bridge and by finding that Emmons had not established causation.

D E C I S I O N

On an appeal from summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). The party opposing summary judgment "may not rest upon the mere averments or denials of the adverse party's pleading but must present specific facts showing that there is a genuine issue for trial." Minn. R. Civ. P. 56.05. Finally, on appeal, the reviewing court must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Emmons contends that the district court erred by granting summary judgment, because Olmsted County is not entitled to statutory immunity for its decision not to install protective guardrails and warning signs on the bridge.[1] Whether government entities are protected by statutory or official immunity is a legal question which this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

The purpose of statutory immunity is to protect from judicial interference policy-making activities which are legislative or executive in nature. Id. at 46 (quoting Nusbaum v. Blue Earth County, 422 N.W.2d 713, 718 (Minn. 1988)). Planning level decisions involve questions of public policy and the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy, and are immune. Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988); see also Minn. Stat. § 466.03, subd. 6 (1996) (county is immune from liability for "[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused"). Conversely, a ministerial or operational duty involves merely the execution of a specific duty arising from fixed and designated facts, and is not immune. Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937)); see also Holmquist, 425 N.W.2d at 232 (stating that operational level decisions relate to ordinary day-to-day operations of government and are not immune).

Olmsted County's claim of statutory immunity raises this question: Was the failure to install protective guardrails a planning decision involving questions of public policy, to which immunity applies; or an operational or ministerial decision, to which immunity does not apply?

Emmons argues that, because Olmsted County failed to remedy a dangerous roadway condition which it knew of, it is not immune. The cases cited by Emmons,[2] however, "stand only for the proposition that when the government implements policy-based decisions, it is generally not immune from tort liability." Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994) (footnote omitted). Whether Olmsted County was warning the public of known hazards is not the dispositive inquiry in determining whether Olmsted County's conduct involved immune decisionmaking. Id.

Each case must be analyzed "in a fashion which focuses on whether the legislature intended to immunize the particular government activity that is the subject of the tort action." Id. (quoting Nusbaum, 422 N.W.2d at 719). Critically, Olmsted County's conduct must be analyzed to determine whether it involved the balancing of social, political, or economic considerations. Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 413 (Minn. 1996); Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996); Steinke, 525 N.W.2d at 175.

In arguing that Olmsted County is not immune for its decision not to place guardrails on any of its bridges, Emmons focuses narrowly on Olmsted County's 1987 decision to widen the shoulders of the road leading to the bridge. First, there is no requirement that Olmsted County install guardrails during a road shoulder-widening project. Second, Michael Sheehan, the Olmsted County engineer, testified that although Olmsted County did not consider placing guardrails on the approach lanes during the 1987 bridge widening project, on other occasions it had considered the guardrail issue and determined there was no money for such improvements and that the bridges were safe.

Next, Emmons alleges that Olmsted County is not entitled to statutory immunity for its decision not to place guardrails on its older bridges because it cannot point to any writing, meeting, or other evidence that shows that the decision was part of a policy. It is not, however, the existence of a policy, written or oral, that makes a government agency's conduct immune; it is whether the government agency's conduct involved a balancing of policy objectives. Nusbaum, 422 N.W.2d at 723.

The evidence supports the district court's conclusion that Olmsted County's decision not to place guardrails and warning signs on the bridge was a planning level decision involving the balancing of public safety and economic limitations. Sheehan testified that although it would be desirable to have guardrails on all bridges in Olmsted County, economic limitations made it impossible. Olmsted County has limited resources to repair and improve its roads and bridges and does not have the money for the substantial renovations necessary to install guardrails on all its bridges. There are currently 106 bridges in Olmsted County identical to the bridge at issue; 90 of those bridges do not have guardrails. The parties' experts disagree on the dollar amount it would cost to place guardrails on the bridges. Olmsted County's experts testified that installing guardrails on the county's bridges would cost $100,000 as to each bridge; Emmons's expert testified that it would cost only $6,000 to place guardrails on each bridge. Whether it would cost $9,000,000 or $540,000 to install guardrails on all bridges in Olmsted County is of small consequence when Olmsted County barely has enough money to blacktop and salt roads.

Olmsted County had received no complaints regarding the bridge or reports of accidents on or near the bridge and believed the bridge was safe. Olmsted County weighed the cost and safety factors and concluded that guardrails would not be placed at any of the bridges in the county. This is precisely the type of policy decisionmaking which statutory immunity protects. Steinke, 525 N.W.2d at 176 (stating that county's decision to place signs along county roads involved weighing of safety issues, financial burdens, and possible legal consequences and as such it was not the court's role to question such policy decisions). Olmsted County's decision was not regarding day-to-day operations, but was one in which economic and safety considerations were weighed. Thus, the district court properly concluded that Olmsted County is protected by statutory immunity.

Our determination that Olmsted County is protected by statutory immunity makes it unnecessary to reach the issue of negligence.

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.

[ ]1 Emmons argues that Olmsted County's decision not to place warning signs on the road leading to the bridge was negligence unprotected by statutory immunity. As will be discussed, unlike Olmsted County's decision not to install guardrails on the bridge, its decision not to install warning signs did not evolve from social, economic, or political considerations. Nonetheless, Olmsted County is not liable for negligence because it had no duty to install such signage. First, Olmsted County had placed a yellow and black striped warning sign on the bridge abutment. Second, the Minnesota Manual on Uniform Traffic Control Devices does not contain or in any manner refer to "narrow shoulders" signs, "suggesting recognition that the width of the shoulders of a roadway is ordinarily apparent." Holmquist v. State, 425 N.W.2d 230, 233 (Minn. 1988). Furthermore, although the manual permits the use of signs which are not described in the manual, it does not contemplate the use of those signs unless special circumstances exist. Id. Emmons presented no evidence of special circumstances demanding additional signage.

[ ]2 See Johnson v. County of Nicollet, 387 N.W.2d 209, 211-12 (Minn. App. 1986) (holding that county's decision not to place guardrails on dangerous road was operational because it implemented county's policy decision to permit public use of road); Ostendorf v. Kenyon, 347 N.W.2d 834, 838 (Minn. App. 1984) (holding that state's failure to place warning signs on dangerous road was operational decision). The third case cited by Emmons, Holmquist v. State, 409 N.W.2d 243 (Minn. App. 1987), was overruled by Holmquist v. State, 425 N.W.2d 230 (Minn. 1988) which specifically provided that even if the government agency knew of the condition, or even if the government agency created the condition, discretionary immunity still applies if the decision involved policymaking. Id. at 232.