Minn. Stat. § 480A.08, subd. 3 (1996)
STATE OF MINNESOTA
IN COURT OF APPEALS
Dennis Breen, et al.,
County of Isanti,
Dissenting, Short, Judge
File No. C996426
Tony Elfelt, Marc G. Pera, Tony Elfelt & Associates, 110 Anoka Office Center, 2150 Third Avenue North, Anoka, MN 55303 (for respondents)
Jeff M. Zalasky, Susan B. Rafferty, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Bloomington, MN 55431 (for appellant)
Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.
Respondents Dennis and Margaret Breen filed a negligence claim against appellant Isanti County, alleging that the county's failure to repair a pothole caused Dennis Breen's motorcycle accident and resulting injuries. The county claimed immunity from suit and appeals the district court's order denying its motion for summary judgment. We affirm.
The county is immune from liability for the performance of a discretionary function or duty, whether or not the discretion is abused. Minn. Stat. § 466.03, subd. 6 (1996). The critical inquiry is whether the challenged governmental conduct was a protected planning-level decision that involved the balancing of policy objectives or an unprotected operational decision relating to the ordinary day-to-day operations of the government and involving the exercise of scientific or professional judgment. Nusbaum v. County of Blue Earth, 422, N.W.2d 713, 722 (Minn. 1988). The Breens' claims are based on three actions of the county: its decision not to repair the road immediately, its inadequate temporary repair, and its failure to post a warning at the pothole.
The county's plan to delay permanent repairs of the entire stretch of roadway, which included the pothole, until it received funding was a policy making decision, and statutory discretionary immunity applies to shield that decision from liability. See Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995) (decisions involved in developing a repair schedule are policy-level decisions entitled to immunity). Nevertheless, the attempts of county employees to repair the pothole temporarily were operational acts not protected by statutory immunity.
Viewing the evidence in favor of the Breens, as we must, they established that the county repeatedly attempted to fill the pothole by throwing cold fill in it and that this method of repair actually made the pothole more dangerous by creating a ramping effect. The county presented no evidence that its decision to attempt repairs repeatedly with cold fill was the result of any policy or planning-level decision. While the county had scheduled permanent repairs based on planning-level decisions, the county's temporary repair attempts were the type of day-to-day operational decisions not protected by discretionary statutory immunity. See Nusbaum, 422 N.W.2d at 722 (operational decisions not protected).
The county argues that even if its attempts to repair the pothole were operational, it is nevertheless immune based on vicarious official immunity. Common law official immunity protects the acts of public officials "charged by law with duties which call for the exercise of * * * judgment or discretion." Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992). This immunity is generally extended to the public employer as a matter of public policy. Id. at 42. For official immunity to apply, however, the official must exercise judgment or discretion in "more than the performance of ministerial acts." Id. While we recognize that the performance of almost any task involves the exercise of some judgment and discretion, the decision of county employees to attempt temporary repair by repeatedly returning to shovel cold fill material into the pothole is not the type of decision to be protected by official immunity. Once the decision was made to repair the pothole in this manner, the county's repeated attempts to fill the same hole in the same way were ministerial, involving "merely execution of a specific duty arising from fixed and designated facts." See Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937). The record shows these repair attempts may have made the pothole more dangerous by causing a ramp effect.
Likewise, the county's failure to place a warning at the location of the pothole is not protected by either statutory discretionary immunity or vicarious official immunity. The county presented no evidence that its failure to place a warning at the location of the pothole was the result of a planning-level decision or was based on the allocation of resources. Cf. Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994) (holding discretionary immunity applied to county's decision not to post warning signs when county established that its decision weighed safety issues, financial burdens, and legal consequences). There is no evidence in this record that the county engineer or a road supervisor made any decision to place or not to place a sign or flag warning of this hazardous condition. The duty to make such a decision, according to the county's informal policy, would be a ministerial duty and not immune. See Larson v. Independent Sch. Dist. No. 314, 289 N.W.2d 112, 121 (Minn. (1980) (failure to engage in decision-making to determine if curriculum bulletin was being followed was abdication of responsibility and not immune).
Further, viewing the evidence in favor of the Breens, the affidavits of residents living adjacent to the pothole and of the county deputy sheriff established that the remarkable size of the pothole posed a danger, and the county's admitted attempts to repair the pothole on several occasions established that the county knew this particular pothole posed a danger. This evidence established that the county's duty to post a warning was certain and ministerial. See Johnson v. County of Nicollet, 387 N.W.2d 209, 212 (Minn. App. 1986) (failure to safely maintain roads and sidewalks not discretionary act); Ostendorf v. Kenyon, 347 N.W.2d 834, 838 (Minn. App. 1984) (en banc) (state's placement of warning signs not discretionary act after state has knowledge of dangerous situation and warning could be provided). Compare Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, 272-73 (Minn. App 1996) (county provided undisputed evidence that engineer's decision not to place speed plate was discretionary exercise of professional judgment and county was entitled to vicarious official immunity), review denied (Minn. Sept. 20, 1996).
We also affirm the district court's denial of summary judgment based on the material fact issue created by the Breens' evidence of notice. As part of their negligence claim, the Breens must show that the county had notice of the roadway's dangerous condition. Nguyen v. Nguyen, 565 N.W.2d 721, 724 (Minn. App. 1997). A municipality has constructive notice if a defect existed for such a length of time that the municipality should have discovered it. 4 Minnesota Practice, CIVJIG 362 (1986). The evidence presented by the Breens creates an issue of notice for trial. See Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995) (party opposing summary judgment must demonstrate existence of genuine issue of material fact).
SHORT, Judge (dissenting).
I respectfully dissent. The trial court erred in denying summary judgment because the county's repair decisions were planning decisions shielded by discretionary immunity under Minn. Stat. § 466.03, subd. 6, and its alleged failure to post warning signs is protected by the common law doctrine of vicarious official immunity. The record demonstrates: (1) the county had made numerous short-lived repairs to the pothole at issue; (2) several months prior to the accident, the county had received federal funding for a complete overlay of the county road in question; (3) at that time, the county engineer adopted a repair plan and decided to complete the overlay during the coming summer, after a complete thaw; and (4) in light of the scheduled repair, and in consideration of the monies available, the engineer instructed road crews to make only temporary "roll" repairs to the road until the date of the overlay project. Given these facts, the county engineer's decisions with respect to the frequency and type of pothole repairs are planning decisions protected by statutory discretionary immunity. See Nguyen v. Nguyen, 565 N.W.2d 721, 724 (Minn. App. 1997) (implying issues relating to hazardous conditions and notice are not germane to immunity analysis because they are "only meaningful in defining a defendant's duty for negligence law purposes"); see also Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 (Minn. 1988) (noting discretionary immunity applies where plaintiff challenges a policy itself).
Discretionary immunity does not operate to preclude Breen's failure to warn claim because there is no evidence to indicate the county's failure to post warning signs was based on policy considerations. See id. at 723 (noting discretionary immunity did apply to claim of failure to recommend or post warning signs where there was no evidence of any policy considerations). However, the record shows: (1) the county has an informal policy in place whereby road crews post warning signs or flags near given hazards after receiving orders from the county engineer or road supervisor; and (2) prior to issuing any such orders, either the engineer or road supervisor assesses the potential hazard and the surrounding road conditions, and makes a judgment call as to whether it is necessary to make a warning, repair, or both. Under these circumstances, the decisions made by the county engineer and/or road supervisor were operational decisions requiring the exercise of independent judgment and discretion that reach beyond the level of "ministerial." See Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937) (defining "ministerial" duties as "absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts") (citation omitted). Therefore, official immunity operates here to protect the engineer's or supervisor's decisions or omissions, and extends vicariously to shield the county from liability. See Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, 275 (Minn. App. 1996) (concluding county was entitled to vicarious official immunity for allegedly negligent decisions of its traffic engineer in installation of traffic
control devices), review denied (Minn. Sept. 20, 1996). Because the county is immune from suit, I would reverse the trial court's decision and grant summary judgment to the county.
 Variously described by witnesses as from four to six feet long, from eighteen inches to five feet wide, and from four inches to ten inches deep, and "ramped" at one end. A woman described it as long enough for her to lie inside it.