This opinion will be unpublished and

may not be cited except as provided by

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




Nicholas Mertz, by his parent

and natural guardian Steve Mertz,



The City of Eden Prairie,


Filed August 5, 1997


Harten, Judge

Hennepin County District Court

File No. 96-2838

Robert J. Lange, Lange & Anderson, P.A., 3 Northland Plaza, Ste. 250, 3800 West 80th Street, Bloomington, MN 55431 (for appellant)

John E. Hennen, Carla J. Heyl, 145 University Avenue West, St. Paul, MN 55103 (for respondent)

Considered and decided by Harten, Presiding Judge, Parker, Judge, and Davies, Judge.



Appellant Nicholas Mertz, who was injured in a sledding accident, challenges the grant of summary judgment for respondent City of Eden Prairie (the city) based on parks and recreation immunity. We affirm.


On the night of December 23, 1994, appellant was injured while sliding at Staring Lake Park (the park) in Eden Prairie. Appellant and several friends had driven to the park to go sledding on a sliding hill maintained and operated by the city. Although the parking lot lights were on when appellant and his friends arrived, the park was closed and they did not see anyone else using the park. The lights that normally illuminated the sliding hill were off.

After parking, appellant grabbed his inner tube and ran straight for the sliding hill. He did not inspect the hill before sliding and was not looking down the hill when he started his descent. Appellant slid into an orange plastic snow fence located approximately one-third of the way down the hill. After running into the fence, appellant fell off his inner tube and landed on his stomach, injuring his spleen.

Prior to the night appellant was injured, Robert Lambert, Director of Parks, Recreation and Facilities for the city, had decided to close the sliding hill due to icy and unsafe conditions. A fence was erected across the face of the hill partway down the hill beneath the steepest section. The fence consisted of orange plastic webbing approximately three to four feet high that was held up by portable metal stanchions. In previous years, the hill had been closed by placing a fence at the top of the hill, but that approach was found not to prevent people from sliding because they could walk around the fence and slide down the hill. Lambert and other city employees concluded that locating the fence partway down the hill would be better because it would stop people from sliding down the hill's steepest section.

Appellant brought suit to recover damages for injuries allegedly caused by the city's negligence in erecting the temporary fence across the sliding hill to close it. The city moved for summary judgment, arguing that appellant's claims were barred by: (1) parks and recreation immunity; (2) discretionary immunity; (3) vicarious official immunity; and (4) primary assumption of risk. The district court ruled that the city was entitled to parks and recreation immunity and did not reach the other grounds for immunity. This appeal resulted. The city noticed review of the other grounds for immunity that it presented in district court.


On appeal from summary judgment, we consider whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The evidence is viewed 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). Whether governmental action is protected by statutory immunity is a question of law. Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996). We need not defer to the district court's ruling on legal issues. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Appellant argues that the district court erred in applying parks and recreation immunity pursuant to Minn. Stat. § 466.03, subd. 6e (1996). Generally, Minnesota law provides that a municipality is liable for the torts of its employees acting within the scope of their employment. Minn. Stat. § 466.02 (1996); accord Minn. Stat. § 3.736, subd. 1 (1996) (state liability). The statute creates certain narrow exceptions, however, and provides that a municipality is immune from tort claims

based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services, or from any claim based on the clearing of land, removal of refuse, and creation of trails or paths without artificial surfaces, if the claim arises from a loss incurred by a user of park and recreation property or services. Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person.

Minn. Stat. § 466.03, subd. 6e. Accordingly, a municipality is entitled to parks and recreation immunity unless its conduct was such that a trespasser would have been entitled to recover in tort against a private person. Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 360 (Minn. App. 1995).

The Minnesota Supreme Court has adopted the standard of care owed by a landowner to a trespasser set forth in the Restatement (Second) of Torts § 335 (1965). Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn. 1994) (applying section 335 in parks and recreation immunity case). Section 335 states:

A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if

(a) the condition

(i) is one which the possessor has created or maintains and

(ii) is, to his knowledge, likely to cause death or seriously bodily harm to such trespassers and

(iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and

(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

Restatement (Second) of Torts § 335. An injured party must prove all the elements of section 335 to defeat immunity. Schaffer, 541 N.W.2d at 360.

In the instant case, the district court ruled as a matter of law that the city had no actual knowledge that the temporary fence was likely to cause death or serious bodily harm to a trespasser. See Lawler v. Soo Line R.R., 424 N.W.2d 313, 317 (Minn. App. 1988) (actual knowledge required before exception to immunity may be established), review denied (Minn. Aug. 24, 1988). But see Noland v. Soo Line R.R., 474 N.W.2d 4, 6 (Minn. App. 1991) (plaintiff need only show landowner realized or should have realized the potential danger), review denied (Minn. Sept. 13, 1991). Appellant refers to the testimony of Lambert and other city employees to argue that the evidence created a genuine issue of material fact as to whether the city had such knowledge. Having reviewed this testimony in the light most favorable to appellant, we cannot say the district court erred in its ruling. Although Lambert and the other city employees stated it was possible that someone could be injured if he or she hit the plastic fence, this evidence is insufficient to meet appellant's burden of proving the city had knowledge that the fence was likely to cause death or serious bodily injury. See Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991) (requiring showing that an inherently dangerous condition is "likely to cause serious bodily harm, not that serious bodily harm 'might' actually result"), review denied (Minn. Feb. 27, 1992). Thus, the district court properly concluded that appellant's claims were barred by parks and recreation immunity.

As urged by the city in its notice of review, we conclude that summary judgment also would have been appropriate on the grounds of vicarious official immunity.

The official immunity doctrine 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. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)). Official immunity serves to protect officials from fear of liability that might "impair effective performance of their duties." Elwood, 423 N.W.2d at 678. The concept of discretion in the context of common law official immunity has a broader meaning than it does in statutory discretionary immunity. Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). In contrast to discretionary immunity, official immunity involves the kind of discretion that is exercised on an operational level rather than a policy-making level. Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992).

A municipality may be able to invoke the protection of official immunity through the doctrine of vicarious official immunity. See id. at 42 (citing cases in which municipal employer has received benefit of employees' personal immunities); Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, 273 (Minn. App. 1996) (concluding county was vicariously shielded from liability for county traffic engineers' allegedly negligent decisions in installing traffic control devices), review denied (Minn. Sept. 20, 1996); Leonzal v. Grogan, 516 N.W.2d 210, 213-14 (Minn. App. 1994) (applying vicarious official immunity in suit against municipality, although officials were not sued in their individual capacities), review denied (Minn. July 27, 1994). The ultimate determination whether to extend official immunity to the governmental employer is a policy question. Pletan, 494 N.W.2d at 42. The relevant inquiry is whether, if no immunity were granted, the public employee would think that his or her performance was being evaluated so as to "chill" the exercise of independent judgment. Leonzal, 516 N.W.2d at 214.

Here, Lambert is entitled to the protection of official immunity because he exercised his discretion in deciding to close the sliding hill and in choosing the manner best suited to effect that decision. Lambert used his professional judgment in deciding to close the sliding hill for safety reasons after observing and evaluating the hill's icy condition. Moreover, Lambert and other city employees determined that placing the temporary snow fence partway down the hill would be more effective in deterring people from sliding, given the city's past experience with placing the fence at the top of the hill. Lambert also exercised his discretion in determining the manner and placement of warning signs to indicate to the public that the hill was closed. These decisions were not merely ministerial decisions, but required Lambert to exercise his best judgment and discretion. Consequently, Lambert is protected by official immunity.

The city is vicariously protected by Lambert's official immunity. Subjecting the city to liability for Lambert's actions would inhibit him from exercising his independent judgment because liability would continue to stem from the performance of his duties. If we were to evaluate Lambert's conduct to impose liability on the city, the essential purpose of official immunity would be defeated. See Pletan, 494 N.W.2d at 42 (purpose of official immunity is to shield municipal employee's "independent judgment from civil adjudication"). Furthermore, contrary to appellant's assertion, statutory immunity and common law official immunity are not mutually exclusive. See In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 549 (Minn. App. 1997) (statutory immunity and common law official immunity "may operate in concert"), review denied (Minn. June 26, 1996). Accordingly, we conclude the district court's grant of summary judgment to the city would have been appropriate also on the alternative grounds of vicarious official immunity. In view of our holding, we need not address the remaining claims that the city noticed for review.