This opinion will be unpublished and

may not be cited except as provided by

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




Lovell Hromatko, et al.,



City of Worthington,


Filed May 19, 1998


Harten, Judge

Nobles County District Court

File No. C8-96-668

Matthew T. Nielsen, Scott & Nielsen, P.A., 117 North Main Street, P.O. Box 958, Fairmont, MN 56031 (for appellants)

Carla J. Heyl, Patricia Y. Beety, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103-2044 (for respondent)

Considered and decided by Crippen, Presiding Judge, Davies, Judge, and Harten, Judge.



Lovell Hromatko, a motorist who suffered injuries in an automobile collision, challenges the district court's grant of summary judgment for respondent city on the basis of discretionary immunity. Hromatko alleged that the city was negligent in piling snow on a median to a level that restricted his vision. The city notes review of the district court's denial of its summary judgment motion based on snow and ice immunity. We affirm.


On February 5, 1996, at approximately 7:00 p.m., appellant Lovell Hromatko was driving south in Worthington on Grand Avenue, a four-lane street divided by a 20-foot-wide grass median. At that time, snow had been plowed onto the median to a height of five to six feet. At the ends of the median, the snow piles were squared rather than rounded off.

Hromatko began to turn left at the uncontrolled intersection of Grand Avenue and Miller Street and stopped his vehicle in the intersection between ends of the median. From where he was stopped, the snow piled on the median obstructed his view of traffic approaching northbound on Grand. As he slowly advanced his vehicle, a northbound vehicle struck Hromatko's vehicle, injuring Hromatko.

Hromatko brought suit against the City of Worthington, alleging that the city was negligent by plowing snow so that it obstructed Hromatko's vision at the intersection.

Hromatko deposed the city's superintendent of streets and community services who testified to the city's snowplowing and snow removal policies. The city does not have a written snowplowing policy other than an informal document that is mailed annually to city residents to inform them of snowplowing priorities, materials used, and dangers associated with driving near snowplows. The city does have an unwritten policy that developed over the years from annual city council discussions. The superintendent personally trains new plow drivers in the customary procedures of the unwritten policy. Drivers are responsible for moving snow from streets and intersections to their full widths. As to Grand Avenue, city policy requires drivers to plow snow onto the median. The city does not have a policy restricting the height of plowed snow piles.

The only part of the unwritten policy that addresses hauling snow away is that the city gives priority to the downtown area and to one street that is also a state highway. In other areas, such as at the intersection of Grand and Miller, the city hauls away snow as directed by the superintendent. Snow is hauled away when the superintendent decides it is necessary because it is obstructing traffic vision. But the city will only haul away snow or round corners on snow piles after all snow plowing and sanding is finished, which can be more than a week after snowfall. Finally, the hauling away is interrupted if more snow falls which requires plowing.

The city sought summary judgment on the grounds of snow and ice immunity and discretionary immunity. The district court denied summary judgment as to snow and ice immunity, but granted it as to discretionary immunity. Hromatko appeals and the city seeks review.


We review de novo a district court's ruling on a motion for summary judgment. Zip Sort, Inc., v. Commissioner of Revenue, 567 N.W.2d 34, 37 (Minn. 1997). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03.

Whether a government entity is protected by statutory immunity is a legal question subject to de novo review. Landview Landscaping, Inc. v. Minnehaha Creek Watershed Dist., 569 N.W.2d 237, 240 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997). The government entity bears the burden of establishing that its conduct is immune. Id.

Municipalities are immune from liability for:

Any claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.

Minn. Stat. § 466.03, subd. 6 (1996).

Even if a city creates a hazardous condition, that city is entitled to discretionary immunity from claims arising from the condition if it demonstrates that the condition resulted from planning or policy decisions rather than mere operational decisions. Hennes v. Patterson, 443 N.W.2d 198, 202 (Minn. App. 1989), review denied (Minn. Sept. 15, 1989). Government conduct is immune only where the government entity produces evidence that the conduct was of a policy-making nature involving social, political, or economical considerations. Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988).

Hromatko alleges that the city was negligent in failing to either round the corners or reduce the height of the snow pile on the median so that the pile would not obstruct a driver's view of oncoming traffic.

In finding that the city was entitled to discretionary immunity, the district court determined that "the decision to remove or reduce the height of the snow piles involves both the exercise of professional judgment and the weighing of policy considerations." The district court stated that the decision involved discretionary factors such as funding, staffing, and the prioritizing of policy objectives.

The record contains no evidence as to whether plowing and sanding were finished at the time of the accident. If these activities were not finished, the failure to round the corners was a product of the established unwritten city policy. This policy involved prioritization of economic and social factors as in Hennes, based on limited equipment and personnel, and decisions as to the importance of plowing certain areas of the city before others. 443 N.W.2d at 203. On the other hand, if the plowing and sanding were finished, the superintendent had a discretionary duty to prioritize snow removal operations based on similar considerations--personnel, equipment, and public safety. Consequently, the city was immune from liability because of its discretionary immunity.

Because we conclude that the district court correctly granted summary judgment for the city on the basis of discretionary immunity, we need not address the district court's ruling as to snow and ice immunity.