This opinion will be unpublished and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

C8-98-654

Joan Martin,

guardian ad litem for Troy Hoff,

Respondent,

State of Minnesota,

plaintiff on impleader,

vs.

City of Rochester,

Respondent,

Rochester Township,

Appellant,

Estate of Donald Tlougan,

Respondent.

Filed September 8, 1998

Affirmed

Shumaker, Judge

Olmsted County District Court

File No. C2-94-0498

Jeffrey A. Hanson, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903 (for appellant Rochester Township)

Steven M. Pederson, Plughoeft, Pederson & Johnsrud, 160 Lafayette Street, P.O. Box 436, Winona, MN 55987-0436 (for respondent City of Rochester)

Hubert H. Humphrey, III, Attorney General, Gail A. Feichtinger, Assistant Attorney General, 900 N.C.L. Tower, 445 Minnesota Street, St. Paul, MN 55101 (for plaintiff on impleader)

Robert B. Spelhaug, Muir, Heuel, Carlson & Spelhaug, 404 Marquette Bank Building, P.O. Box 1057, Rochester, MN 55903-1057 (for respondent Tlougan)

James R. Koby, Parke, O'Flaherty, Tenth Floor, First Bank Place, 201 Main Street, P.O. Box 1147, LaCrosse, WI 54602-1147 (for respondent Martin)

Charles A. Bird, Bird & Jacobsen, 305 Ironwood Square, 300 Third Avenue Southeast, Rochester, MN 55904 (for respondent Martin)

Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

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

SHUMAKER, Judge

Appellant Township of Rochester challenges the district court's denial of its summary judgment motion, contending that it is entitled to discretionary immunity as a matter of law. We affirm.

FACTS,

Troy Hoff was severely injured when he was thrown from a car driven by Donald Tlougan in the city of Rochester after the car left the roadway and struck a rock. Tlougan was killed.

Hoff's guardian ad litem, Joan Martin, sued Tlougan's estate, the City of Rochester, and Rochester Township. She alleged that Tlougan was negligent in his driving and that the municipalities were negligent in the design and maintenance of the road.

Each municipality moved for summary judgment on the element of causation. The trial court granted both motions, and sua sponte, ruled that the municipalities were protected by discretionary immunity as to any alleged road design defects. Martin appealed. We reversed and remanded, holding that there existed fact issues as to negligence and the applicability of discretionary immunity.

The township ostensibly augmented the record on remand and moved again for summary judgment on various issues. Among the bases for the motion was the township's contention that its participation in the Federal Hazard Elimination Safety Program (HESP) respecting roadway safety decisions entitled it to discretionary immunity as a matter of law. The trial court ruled that there exist fact issues for trial and denied the motion.

D E C I S I O N

Minnesota law permits interlocutory review of the denial of a summary judgment motion premised on discretionary governmental immunity. McGovern v. City of Minneapolis, 475 N.W.2d 71, 72-3 (Minn. 1991). In such a review, we ask (1) whether there are genuine issues of material fact, and (2) whether either party is entitled to judgment as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The applicability of discretionary immunity is a question of law for an appellate court to review without deference to the trial court. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).

In the previous appeal by the township, we recognized that discretionary immunity might apply to governmental conduct that requires a balancing of complex factors at the planning stage rather than the operational stage of a project. Martin v. City of Rochester, No. C8-96-1749, unpub. op at 4 (Minn. App. April 8, 1997), review denied June 27, 1997. We also noted that summary judgment on discretionary immunity is inappropriate where there are too many essential facts in dispute to determine the extent of the exercise of professional and scientific judgment or the extent to which policy was implemented. Id. We then held

[o]n this record, there was ample evidence to support a finding that the City and the Township were on notice of the hazardous condition of the roadway. There was testimony by a city engineer that a work order for a center stripe, a no-passing line, and side markers was given to a work crew to paint on the full length of the roadway to the city limits. There was further testimony that the roadway markings were never completed.

Id. On that record, which left material facts in dispute, we held that the trial court's grant of summary judgment on discretionary immunity was error.

The township now argues that its enrollment in the HESP program and its decisions to implement the particulars of that program were planning-level actions that entitle the township to discretionary immunity. It relies principally on the unpublished decision in Woller v. City of Granite Falls, No. C0-94-2616 (Minn. App. July 25, 1995),[1] review denied September 19, 1995), a case that also dealt with the HESP program.

Unlike Woller, where "the city submitted uncontradicted evidence of a policy-level decision which led to the absence of warning signs," here there are material fact issues as to the nature and extent of the township's participation in HESP; its reliance, if any, on the program directives; whether or not HESP applied to the area where the accident occurred; whether or not the township implemented the HESP recommendations; and the factual issues identified in the township's previous appeal. In Sota Foods, Inc. v. Larson-Peterson & Assocs., Inc., 497 N.W.2d 276, 280 (Minn. App. 1993), we said "the planning-operational distinction, although generally recognized, should not be used in a conclusory manner." Similarly, the mere contention that the township's conduct respecting the road at issue is immunized by HESP is but a conclusion and, on this record, is not grounded in facts that entitle the township to the application of discretionary immunity as a matter of law.

Affirmed.

[1] Generally, unpublished opinions are of limited value in deciding an appeal. See Minn. Stat. § 480A.08, subd. 3(b), (c) (1996) (unpublished opinions "must not be cited as precedent, except as law of the case, res judicata, or collateral estoppel[;]" "[u]npublished opinions of the court of appeals are not precedential" (respectively)) (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and that, while persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential").