This opinion will be unpublished and

may not be cited except as provided by

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





Scott Jenkins,



Independent School District No. 709,

Respondent (C1-97-1456),

Appellant (C3-97-1457),

State of Minnesota, et al.,

Appellants (C1-97-1456),

Respondents (C3-97-1457).

Filed January 20, 1998


Harten, Judge

St. Louis County District Court

File No. C6-97-600619

Michael T. Tierney, Marquard & Associates, 4925 Matterhorn Drive, Duluth, MN 55811 (for respondent Jenkins)

Eric L. Hylden, Halverson, Watters, Downs, Reyelts & Bateman, Ltd., 700 Providence Bldg., 332 West Superior Street, Duluth, MN 55802 (for appellants/respondents State of Minnesota and Minnesota Department of Transportation)

Mark L. Knutson, Bye, Boyd, Agnew, Ltd., 200 Sellwood Bldg., 202 West Superior Street, Duluth, MN 55802-1960 (for respondent/appellant ISD #709)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Harten, Judge.



Respondent Scott Jenkins sued both appellant Minnesota Department of Transportation (MnDOT) and appellant Independent School District 709 (ISD) based on a motor vehicle collision. MnDOT and ISD moved for summary judgment of dismissal on the grounds of governmental immunity. MnDOT and ISD appeal the district court's denial of summary judgment. Because MnDOT and ISD are entitled to snow and ice immunity and official immunity, we reverse.


In March 1994, a multi-car accident occurred at the bottom of a hill in Duluth. Jenkins, a City of Duluth police officer, responded to the accident. Shortly thereafter, while he was still in his squad car, it was struck by an ISD snowplow and a MnDOT snowplow. The events unfolded as follows.

ISD snowplow driver, Duane Johnson, was sanding and plowing the hill. Johnson plowed and sanded both lanes of the hill several times. He had no trouble with slipping, sliding, or poor traction. After plowing another road, Johnson decided to go down the hill one more time to determine if the hill needed more sand. Partway down the hill, Jenkins' squad car entered from a service road and descended the hill in front of Johnson. Johnson followed Jenkins' vehicle at approximately 15 miles per hour and at a distance of four car lengths. When he reached the bottom of the hill, Jenkins stopped in front of Johnson. Johnson stopped his plow on the hill, at a point just preceding a steeper decline, and waited because he was unsure what Jenkins was going to do. He could not pass Jenkins on the right because of a guardrail or on the left because of the multi-car accident. He waited with his truck in neutral, the clutch out, and his foot on the brake. As he waited, he did not fear slipping because he had seen the squad car drive down the hill with no problem and because he had sanded the hill several times with no difficulty. Nevertheless, Johnson's truck slid down the hill on the ice and hit Jenkins' squad car.

At about the same time, MnDOT snowplow driver, Christopher Adams, was driving to his designated snowplow route. While he was waiting at a stoplight, a police officer ran over to his vehicle and asked him if he would help him because his "buddy was hurt real bad," referring to Jenkins. Adams had no duty to plow the hill; it was not part of his route. Nonetheless, he drove to the accident site where he noticed several cars and an ISD snowplow that had been involved in the accident. He plowed and sanded up the hill without difficulty. Once gaining the top of the hill, he turned around and drove down the hill at a walking speed, guiding the tires on one side of the plow within the lane he had sanded on his way up the hill. He did not anticipate problems because he had none when he drove up the hill. Near the bottom of the hill, however, Adams began sliding and slid into the Johnson and Jenkins vehicles.[1]

Jenkins speculates that Johnson must not have stopped where he claimed because too little time passed from the moment Jenkins stopped at the bottom of the hill and the moment when Johnson's snowplow struck his vehicle. Jenkins, however, did not see whether Johnson stopped. Jenkins also testified that he has seen other snowplows descending icy and hazardous hills backwards to spread sand on the path that the truck would travel. He claims that Johnson and Adams were negligent for not backing down the hill. Both Johnson and Adams testified that they have never been instructed to drive down icy hills backwards because to do so would be dangerous.


Summary judgment is appropriate when a governmental entity proves that its actions are immune from liability. Ostendorf v. Kenyon, 347 N.W.2d 834, 836 (Minn. App. 1984). Whether governmental action is protected by immunity is a question of law. Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996). We review a district court's immunity decision de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

1. Snow and Ice Immunity

Generally, both MnDOT and ISD are immune from liability by state and

municipal snow and ice immunity. The state and its municipalities ("municipalities" includes school districts) are immune from claims arising from snow or ice conditions on a highway except when the condition is affirmatively caused by the negligent acts of the municipality. Minn. Stat. §§ 3.736, subd. 3(d) (1996), 466.03, subd. 4 (1996). To overcome snow and ice immunity, a claimant must show that the snow or ice condition leading to the accident was "affirmatively caused by [a] negligent act," rather than just nature. Koen v. Tschida, 493 N.W.2d 126, 128 (Minn. App. 1992), review denied (Minn. Jan. 28, 1993). We have applied snow and ice immunity to a collision between an operating snowplow and other vehicles. In re Alexandria Accident of February 8, 1994, 561 N.W.2d 543, 549 (Minn. App. 1997), review denied (Minn. Jun. 26, 1997).

Our snow and ice immunity decision is based on the reasoning in the Koen decision. In Koen, two vehicles collided on a county road, critically injuring one person and killing another. Koen, 493 N.W.2d at 127. The plaintiffs alleged that the county was negligent for four reasons: (1) failure to cut or trim trees adjacent to the highway, which caused ice to form on the highway; (2) improper salting and sanding; (3) failure to warn motorists that the road tended to be slippery; and (4) improper speed limit. Id. This court held that:

Although appellants attempt to focus on other alleged causes of the accident, we conclude that all their claims are based on the fact the highway was icy and therefore, under the statute the county is entitled to immunity. We agree with the New Jersey court which concluded in interpreting a similar weather immunity statute: "when weather is the true culprit, the government is immune." * * * While other alleged negligent acts may have contributed to the accident, [the snow and ice immunity statute] does not condition immunity on the snow or ice condition being the sole basis for the claim.

To remove the immunity granted by the statute merely because a party alleges causal factors other than weather in its claim would render the statute ineffective.

Id. at 128 (quoting with approval Horan v. State of New Jersey, 514 A.2d 78, 79, 81 (N.J. Sup. Ct. App. Div. 1986)).

There is no question that at the time of the accident, the MnDOT snowplow, the ISD snowplow, and Jenkins became involved in an accident because of snow and ice conditions. Jenkins attempts, however, to sever the snow and ice conditions from the drivers' maneuvers in the snow and ice. He claims that the drivers' negligence, first in deciding to plow an icy hill, and second, by operating their plows the way they did, caused the accident. We disagree.

There is no evidence or allegation that either Johnson or Adams violated official snow plowing policies. Johnson's job was to plow and sand the road so that school buses could reach the school at the top of the hill. Adams was plowing the hill at the emergency request of a police officer. A snowplow operator's duty is to make roads safe for travel. This includes plowing and sanding surfaces known to be slippery. While one could imagine circumstances that would render it improper for a driver to attempt to plow and treat a slippery road, no such facts exist here. Both drivers plowed and sanded the hill at least one time without slipping; both drivers testified that they did not believe that their trucks would slip; both employed safe plowing and driving tactics; and both lost control of their trucks due to snow and ice. Neither driver's decision to plow nor his actual plowing raises a genuine issue of material fact of negligence independent of the ice.

Jenkins' suggestions that the drivers should have backed down the hill, or that Johnson never stopped, boil down to second-guessing and speculation. See DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (holding that for purposes of challenging summary judgments, evidence which creates mere metaphysical doubt does not create material fact). Jenkins can point to no policy either allowing or requiring drivers to back down slippery hills. Both drivers stated that such a maneuver would be less safe than plowing down a hill going forward. The inescapable reality on this record is that the true cause of the collisions was the weather. We conclude that snow and ice immunity shields MnDOT and ISD. Accordingly, we reverse the district court's decision as to snow and ice immunity.

2. Official Immunity

Official immunity also protects Johnson and Adams' actions in plowing the hill. Official immunity protects governmental employees who may be subject to liability due to the performance of their work duties. Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997), review denied (Minn. May 20, 1997). Official immunity protects an employee "from the fear of personal liability that might deter independent action." Janklow v. Minnesota Bd. of Exam'rs for Nursing Home Adm'rs, 552 N.W.2d 711, 715 (Minn. 1996) (quoting Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988). Official immunity also protects discretion that is exercised on an operational rather than a policymaking level. Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996). A government entity enjoys vicarious official immunity if its employee is officially immune. Id.

We have ruled that official immunity applies to the operational decisions of snowplow drivers. Alexandria, 561 N.W.2d at 549. In Alexandria, official immunity was granted to the snowplow operator, and vicariously to his employer, because the driver made several decisions that involved operation-level discretion. Id. Those decisions included the speed at which the driver was plowing, the driver's assessment of weather conditions, and the driver's reliance on his judgment to determine the best time and manner of plowing. Id.

Similarly, both Johnson and Adams exercised discretionary decision-making first, in deciding to plow the hill, and second, in determining the safest means to carry out their plowing and sanding. The act of snow plowing icy hills does not lend itself to rigid, locked-in, operational procedures. Minnesota's winter weather requires that snowplow drivers be allowed to operate in a manner that is flexible enough to adjust to rapidly changing dangerous conditions. Both Johnson and Adams initially drove on the hill without difficulty and determined that their trucks would not slide. The fact that collisions later occurred does not support a finding that the drivers' snow plowing strategy was beyond their allowable discretion. The reality is that plowing snow is inherently hazardous and snowplow operators must be allowed freedom to choose the manner and means of doing the job. Accordingly, we reverse the district court's decision on official immunity and hold that official immunity protects Johnson and Adams' snow plowing activities and that their respective employers, ISD and MnDOT, are vicariously immune.

In view of our holdings on snow and ice immunity and official immunity, we need not address the other issues raised on appeal.


[1] It is unclear from the record whether Adams directly hit Jenkins or if Adams hit Johnson who then hit Jenkins. Regardless, since the cause of the accident was snow and ice, it is irrelevant whom he struck.