This opinion will be unpublished and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

C9-97-2208

Lynn M. Counter,

Respondent,

vs.

Faith Lutheran Church, et al.,

Defendants,

State of Minnesota, et al.,

Appellants,

and

Timothy Phillips,

defendants and third-party plaintiff,

vs.

William C. Schiller, et al.,

third-party defendants.

Filed May 5, 1998

Reversed

Klaphake, Judge

Lake County District Court

File No. C6-95-243

Hubert H. Humphrey III, Attorney General, James S. Alexander, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for appellant)

Jeffrey A. Westermann, 1219-14th Street, P.O. Box 760, Cloquet, MN 55720-0760 (for respondent)

Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Mulally, Judge.**

** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

The state appeals from denial of summary judgment in respondent Lynn Counter's claim of negligent placement of signs at the intersection where she was involved in a motor vehicle accident. The state claims respondent's actions should be barred under the doctrines of vicarious official immunity and statutory immunity. Because we conclude that Counter's claim is barred by vicarious official immunity, we reverse.

FACTS

On December 14, 1994, Counter's car was rear-ended as she was stopped while waiting to turn left onto County State Aid Highway 3 (Highway 3) from Trunk Highway 61 (Highway 61). Both are two-lane highways, which intersect about one mile outside of Silver Bay. Counter initiated a personal injury action against the driver of the other car, Timothy Phillips, his employers, and the state. Among other claims, Counter claimed that the state was negligent in its placement of signs near the intersection.[1]

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

The state appeals from denial of summary judgment in respondent Lynn Counter's claim of negligent placement of signs at the intersection where she was involved in a motor vehicle accident. The state claims respondent's actions should be barred under the doctrines of vicarious official immunity and statutory immunity. Because we conclude that Counter's claim is barred by vicarious official immunity, we reverse.

FACTS

On December 14, 1994, Counter's car was rear-ended as she was stopped while waiting to turn left onto County State Aid Highway 3 (Highway 3) from Trunk Highway 61 (Highway 61). Both are two-lane highways, which intersect about one mile outside of Silver Bay. Counter initiated a personal injury action against the driver of the other car, Timothy Phillips, his employers, and the state. Among other claims, Counter claimed that the state was negligent in its placement of signs near the intersection.[1]

The state moved for summary judgment, claiming immunity from suit under the doctrines of vicarious official immunity and statutory immunity. The district court denied summary judgment, concluding there was there was a factual dispute about whether a certain warning sign or junction indicator should have preceded the intersection in accordance with the Minnesota Manual on Uniform Traffic Control Devices (MMUTCD).

D E C I S I O N

On appeal from summary judgment, this court must determine whether there are any issues of material fact and whether the trial court erred in applying the law. Minn. R. Civ. App. P. 56.03; Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). "Whether governmental entities and public officials are protected by statutory immunity and official immunity is a legal question which this court reviews de novo." Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996); see Watson, by Hanson v. Metro Transit Comm'n, 553 N.W.2d 406, 411 (Minn. 1996) (denial of summary judgment in immunity case subject to immediate review "because immunity from suit is effectively lost if a case is erroneously permitted to go to trial").

The common law doctrine of official immunity protects government 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)). Under the doctrine, "individual governmental actors * * * remain immune only if they do not act maliciously or intentionally." Janklow, 552 N.W.2d at 716; see RICO v. State, 472 N.W.2d 100, 107 (Minn. 1991) (conduct malicious or intentional only if official knowingly commits act official "has reason to believe is prohibited").

The state argues that it is immune from suit because its traffic engineer, Roberta Dwyer, reviewed the placement of signs at the intersection several times in the three years prior to the accident and concluded that the use of signs was appropriate and consistent with the MMUTCD and the Minnesota Department of Transportation's Traffic Engineering Manual (TEM).

We determine Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269 (Minn. App. 1996), review denied (Minn. Sept. 20, 1996) to be dispositive on this issue. In Ireland, the district court held that the doctrine of vicarious official immunity protected a county against, among other claims, claims that it should have installed traffic signs preceding an intersection where a traffic accident occurred. Id. at 274. This court declined to "second guess" the traffic engineer's judgment in placing the signs, despite claims that the signs violated both advisory and mandatory directives of the MMUTCD. Id. at 273-74. In regard to the mandatory language, we concluded that the use of "shall" in the MMUTCD did not "create[] a ministerial duty," quoting language from the MMUTCD deferring to the engineer's judgment to decide where traffic devices should be installed. Id. at 274. We conclude that the traffic engineer in this case should receive the same deference. Because a qualified traffic engineer exercised discretion in determining sign placement at the intersection, the state is entitled to vicarious official immunity. See id.[2]

Finally, Counter offered no evidence that would establish the state engaged in any willful or malicious acts so that it should not be shielded from suit. See id. For these reasons, the district court erred in denying summary judgment on the state's claim of vicarious official immunity.

Because we determine that vicarious official immunity applies, we decline to consider whether statutory immunity also applies.

Reversed.

[1] The district court granted the state's motion for summary judgment against the state on Counter's negligent design and construction claim because it was barred by the 10-year statute of limitations under Minn. Stat. § 541.051, subd. 1(a) (1996).

[2] In regard to requirements of the MMUTCD, Counter argues that the traffic engineer failed to place an M2-1 junction marker or, alternatively, a W2-2 warning sign prior to the intersection. As demonstrated by accident site photographs, the signs preceding the intersection included a junction assembly consisting of a junction marker above a route marker properly labeled "Lake Three County," and, closer to the intersection, an advanced route turn assembly or directional assembly consisting of the Lake Three County route marker and a directional arrow. The district court denied summary judgment only after concluding that the use of signs did not include a junction indicator, a fact which is clearly contradicted by the photographs. Further, use of the W2-2 warning sign is unnecessary where a proper junction number is in place. See MMUTCD, 2C-11, 2C-12 (Jan. 1993).