This opinion will be unpublished and

may not be cited except as provided by

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




Devon Colvin and Aubrae Anna Colvin,

minor children,

by Wayne and Tammi Colvin,

their parents and natural guardians,

and Wayne and Tammi Colvin, individually,



Otter Tail County,

through its agents and employees,

including its Social Services Department,


Filed October 28, 1997


Klaphake, Judge

Otter Tail County District Court

File No. C9-96-706

Steven D. Emmings, John W. Carey, Sieben, Grose, Von Holtum, McCoy & Carey, Ltd., 117 South Park Street, Box 549, Fairfax, MN 55332 (for Respondents)

Anthony M. Tarvestad, James P. Peters, Dyan J. Ebert, Quinlivan, Sherwood, Spellacy & Tarvestad, P.A., 400 South First Street, Suite 600, P.O. Box 1008, St. Cloud, MN 56302 (for Appellant)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.



Respondents Wayne and Tammi Colvin are licensed foster parents. J.B., a child who was placed with the Colvins, allegedly sexually abused the Colvins' two minor children. Claiming that appellant Otter Tail County failed to provide them with adequate information about J.B.'s sexual history, the Colvins brought this action against the county for negligent placement of a foster child. The county claimed immunity from suit and moved for summary judgment. The district court denied the county's motion, and the county appeals. Because we conclude that the county is not entitled to judicial, official, or statutory immunity, we affirm.


[A]n order denying summary judgment on the ground of immunity is appealable because immunity from suit is effectively lost if a case is erroneously permitted to go to trial.

Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 411 (Minn. 1996). On appeal, this court must determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Id. Whether a government entity or public official is protected by immunity is a legal question subject to de novo review. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). When determining whether immunity applies, "it is essential to identify the precise governmental conduct at issue." Watson, 553 N.W.2d at 415.

The conduct at issue involves the county's alleged failure to provide sufficient information about J.B. to the Colvins. The county and the Colvins entered into an agreement that stated foster parents may expect the placement agency to

[h]elp the foster parents make an informed decision before placement as to the suitability of their home for the particular child by:

(a) Providing any information about the child and his family that is pertinent to the foster parents' effective carrying out of their role.

Although the county claims that the agreement does not apply to emergency placements like the one involved here, the agreement's language does not limit its application to nonemergency placements.


The county first argues that the Colvins' claims are barred by judicial immunity. Judicial immunity applies to judges and other officers acting in a quasi-judicial capacity. See, e.g., Tindell v. Rogosheske, 428 N.W.2d 386, 387 (Minn. 1988) (extending judicial immunity to guardian ad litem, who acts as officer of court and must be free to present vigorous and autonomous representation of child's best interests); Kipp v. Saetre, 454 N.W.2d 639, 643-44 (Minn. App. 1990) (extending immunity to prosecutor and probation officer who acted in accordance with judge's determination that no probation revocation hearing was necessary), review denied (Minn. June 26, 1990).

However, the record does not indicate that the county executed the agreement pursuant to a court order or that the county was acting as a court officer when it executed the agreement. Judicial immunity, therefore, does not bar claims against the county arising from the county's duty to provide pertinent information about a child to foster parents.


The county next argues that the Colvins' claims are barred by official immunity. Under the doctrine of official immunity, "'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 willful or malicious wrong.'" Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Sulsa v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)).

Official immunity involves the kind of discretion that is exercised on an operational rather than a policymaking level, and it requires something more than the performance of merely "ministerial" duties.

Johnson, 553 N.W.2d at 46 (citations omitted).

This court has defined a ministerial duty as "absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts."

Id. (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937)).

Under the agreement, the county was to provide the Colvins with any information about J.B. that was pertinent to the Colvins' making an informed decision as to the suitability of their home for J.B. The county argues that determining what information was pertinent required the exercise of discretion. See Killen v. Independent Sch. Dist. No. 706, 547 N.W.2d 113, 117 (Minn. App. 1996) (official immunity applied to guidance counselor's failure to inform student's parents that student was contemplating suicide because counselor's decision "necessarily based on an exercise of his professional judgment, taking into consideration his knowledge about the student's problems, his observations of her, his education and training, and his experience dealing with troubled teenagers"), review denied (Minn. Aug. 6, 1996).

However, Tammi Colvin testified that she specifically asked Joan Krus, J.B.'s probation officer, whether J.B. had had any sexual involvement, but that the information provided by Krus did not include information about sexual involvement. This court must assume that Tammi Colvin's testimony was truthful. See Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 847 (Minn. 1995) (on appeal from denial of summary judgment motion, this court must view evidence in light most favorable to nonmoving party). The county admits that it had information about J.B.'s involvement in incidents that were suspected to be sexually related. When Tammi Colvin specifically requested information about J.B.'s sexual involvement, that information became pertinent to the Colvins' making an informed decision as to the suitability of their home for J.B. Because Tammi Colvin requested the information, the determination that it was pertinent did not require the exercise of discretion or professional judgment by county employees. Official immunity, therefore, does not bar the Colvins' claims against the county. See S.L.D. v. Kranz, 498 N.W.2d 47, 54 (Minn. App. 1993) (social worker's duty to accurately relay to colleagues all information received during call reporting child neglect was ministerial duty not protected by official immunity).


The county argues that the Colvins' claims are barred by statutory immunity. Minn. Stat. § 466.03, subd. 6 (1996) grants a county statutory immunity 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."

Statutory immunity exists to prevent the courts from conducting an after-the-fact review that second-guesses "certain policy-making activities that are legislative or executive in nature." If a governmental decision involves the type of political, social and economic considerations that lie at the center of discretionary action, including consideration of safety issues, financial burdens, and possible legal consequences, it is not the role of the courts to second-guess such policy decisions.

Watson, 553 N.W.2d at 412-13 (quoting Nusbaum v. Blue Earth County, 422 N.W.2d 713, 718 (Minn. 1988).

Again, given the terms of the agreement executed by the county and the Colvins, Tammi Colvin's specific request for information about J.B.'s sexual involvement, and the county's access to such information, the decision whether to provide that information did not involve any policymaking activities. Thus, statutory immunity is inapplicable to the Colvins' claims against the county. Cf. Terwilliger v. Hennepin County, 561 N.W.2d 909, 912-13 (Minn. 1997) (although professional decision whether to hospitalize or treat patient on outpatient basis involves complex analysis of each patient's symptoms and needs, such day-to-day decisions are operational, not public policy decisions).

Because we have determined that the county is not entitled to immunity from the Colvins' claims, we do not address the Colvins' argument that the county waived its right to assert immunity defenses. We further decline to address the remaining issues raised by the county because they are unrelated to immunity; on appeal from the denial of a summary judgment motion, interlocutory review of issues not involving immunity generally is inappropriate. See Masonick v. J.P. Homes, Inc., 494 N.W.2d 910, 913 (Minn. App. 1993).