This opinion will be unpublished and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
Sylvester J. Eischens and Joan P. Eischens, as trustees for the
heirs and next-of-kin of Nancy Joan Eischens Theide, decedent,
Filed October 14, 1997
Scott County District Court
File No. C966140
David L. Stowman, 1100 West Lake Drive, P.O. Box 845, Detroit Lakes, MN
56502 (for appellant )
James R. Andreen, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West
80th Street, Bloomington, MN 55431 (for respondent).
Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen,
U N P U B L I S H E D O P I N I O N
While driving eastbound on County Road 68, Nancy Joan Eischens Theide lost
control of her vehicle at a curve in the road. The vehicle left the road and
landed upside down in a creek bed. Although her passenger was able to escape,
Theide drowned. The decedent's parents (Sylvester J. and Joan P. Eischens)
brought a wrongful death action against Scott County alleging negligence in
failing to properly design, construct, or maintain County Road 68. Claiming
immunity from civil tort liability, the county moved for summary judgment. The
trial court granted summary judgment in favor of the county on the basis of
immunity. On appeal, the Eischens argue: (1) notice is not a prerequisite to
maintaining their claim, and in the alternative, the county had notice of the
defective and inherently dangerous condition; and (2) the county's actions are
not protected by either statutory or common law official immunity. We
D E C I S I O N
On appeal from a grant of summary judgment, we determine whether
there are any genuine issues of material fact and whether the trial court erred
in its application of the law. Offerdahl v. University of Minn. Hosps.
& Clinics, 426 N.W.2d 425, 427 (Minn. 1988); see
Minn. R. Civ. P. 56.03 (judgment shall be rendered forthwith if pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show there is no genuine issue as to any material fact and
either party is entitled to judgment as a matter of law). While we view the
evidence in the light most favorable to the party opposing the motion, the
nonmovant must produce specific facts that create an issue for trial.
Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn.
1995). Whether a municipality has received notice of a defective condition is
a question of fact. Kopveiler v. Northern Pac. Ry. Co., 280
Minn. 489, 493, 160 N.W.2d 142, 146 (1968). Governmental immunity from tort
liability presents a question of law, which we review de novo. Snyder v.
City of Mpls., 441 N.W.2d 781, 786 (Minn. 1989).
The Eischens argue "notice" is not a prerequisite to maintaining
their negligence claim against the county. We disagree. Counties have a
statutory duty to construct, improve, and maintain county highways. Minn.
Stat. § 163.02, subd. 1 (1996); see Johnson v. Nicollet
County, 387 N.W.2d 209, 211 (Minn. App. 1986) (holding counties have
common law duty to maintain streets and sidewalks in reasonably safe
condition). However, a municipality's liability is limited to those cases
where it has actual or constructive notice of a defective condition that is
inherently dangerous. Hansen v. City of St. Paul, 298 Minn. 205,
210, 214 N.W.2d 346, 348 (1974); but 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
In the alternative, the Eischens argue the county was on notice of a dangerous
condition. They offer affidavit evidence in an attempt to create a triable
fact issue. However, the proffered affidavit is insufficient because it: (1)
is not signed or notarized; and (2) contains information about two prior
fatalities involving cars that hit fixed objects near the same curve.
See Minn. R. Civ. P. 56.05 (describing form of affidavits);
Kay v. Fairview Riverside Hosp., 531 N.W.2d 517, 520 (Minn. App.
1995) (holding police reports not admissible in opposition to summary judgment
because they were not affidavits), review denied (Minn. July 20,
1995). The Eischens failed to offer any evidence that the existence of a creek
bed below a curve on Highway 68 created a hazard requiring a guardrail.
See Seaton v. Scott County, 404 N.W.2d 396, 399 (Minn. App. 1987)
(holding county immune where no evidence of knowledge that lack of guardrail is
dangerous condition), review denied (Minn. June 25, 1987). Under
these circumstances, there is no disputed fact on the question of the county's
lack of notice.
The Eischens also argue the county's failure to install a guardrail
is not protected by either statutory or official immunity. We disagree. The
record demonstrates: (1) the county adopted the Minnesota Department of
Transportation's policy governing the installation of guardrails; (2) the
state's policy provides guidelines and methodologies to be considered when
deciding whether to erect a guardrail; (3) a guardrail is considered a hazard
under certain circumstances; (4) the county engineer balanced safety and
economic factors in deciding not to erect a guardrail; (5) a driveway enters
the roadway just west of where the accident occurred, so a guardrail
necessarily would have to bend abruptly to accommodate access to that property;
(6) since its construction in 1964, Highway 68 has never had a guardrail at the
accident site; and (7) there are safety signs near the accident site warning
drivers to reduce speed due to a curve in the road ahead. Given these
undisputed facts, the county engineer's decision is a planning decision
protected by statutory discretionary immunity. See Nusbaum v. Blue Earth
County, 422 N.W.2d 713, 723 (Minn. 1988) (holding state protected by
statutory immunity because adoption by state of Manual Uniform Traffic Control
Devices, 2B-13 was policy decision and challenge to state engineers who
followed manual was challenge to policy itself); see also Zank v.
Larson, 552 N.W.2d 719, 722 (Minn. 1996) (holding city entitled to
statutory immunity because determining duration of all red clearance signal
involved balancing competing safety considerations); Gutbrod v. County of
Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995) (holding county
entitled to statutory immunity because decision to adhere to established repair
schedule was made after assessing risks and costs of changing schedules). In
addition, official immunity operates to protect the engineer's decisions or
omissions, and extends vicariously to shield the county from liability.
See Johnson v. State, 553 N.W.2d 40, 47-8 (Minn. 1996) (holding
state's agents entitled to official immunity because state balanced protected
official policy considerations in setting up warrant process and then followed
applicable policy, procedure, and administrative rule in issuing warrant);
see also Pletan v. Gaines, 494 N.W.2d 38, 41-2 (Minn. 1992)
(holding official immunity extends vicariously to city because police officer's
decision to engage in car chase and to continue chase involves weighing of many
factors, and failing to extend immunity may cause police officers to think
their own employment performance is being evaluated and consequently may
decline to engage in pursuit when pursuit is indicated); Ireland v.
Crow's Nest Yachts, Inc., 552 N.W.2d 269, 273 (Minn. App. 1996),
review denied (Minn. Sept. 20, 1996) (holding official immunity
extends vicariously to the county because traffic engineer's decision to place
"stop ahead" sign demonstrates exercise of judgment and failing to extend
immunity would result in chilling effect on traffic engineer's decision to
place "stop ahead" signs).