This opinion will be unpublished and

may not be cited except as provided by

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




Teresa J. Barrett,



Itasca County,


Filed December 15, 1998

Affirmed; motion denied

Klaphake, Judge

Itasca County District Court

File No. C1-97-780

Tom Kuesel, Fuller, Baer, Wallner & Anderson, 514 America Ave., P.O. Box 880, Bemidji, MN 56619-0880 (for respondent)

Stephen G. Andersen, Joseph J. Langel, Ratwik, Roszak & Maloney, P.A., 300 Peavey Bldg., 730 Second. Ave. S., Minneapolis, MN 55402 (for appellant)

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



Respondent Teresa Barrett sued appellant Itasca County after she lost control of her car on a snow-covered county road, slid down an embankment, and landed overturned in a creek. She alleged that the county was negligent in failing to reroute the road to distance it from the creek and in failing to install guardrails at the location where her car slid off the road.[1] The county moved for summary judgment, claiming entitlement to either statutory or snow and ice immunity. See Minn. Stat. § 466.03, subds. 4, 6 (1996). In granting partial summary judgment to the county, the district court determined that the county was immune from liability only on Barrett's road design claim.

Both parties appealed, and the county moved to dismiss Barrett's notice of review. In its reply brief, the county concedes that Barrett's road design claim is related to her guardrail claim and that both issues should be considered in this appeal. We therefore deny the county's motion to dismiss Barrett's notice of review. See Swint v. Chambers County Comm'n, 514 U.S. 35, 50-51, 115 S. Ct. 1203, 1212 (1995) (court of appeals with jurisdiction over immunity ruling may extend review to related rulings that are "inextricably intertwined" with immunity ruling).

Because the county met its burden of proving entitlement to statutory immunity on the road design claim, we affirm the grant of summary judgment to the county on that claim. Because guardrail placement generally does not involve policy-type decisions and because the county failed to present any evidence to demonstrate that snow and ice contributed to Barrett's accident, we affirm the district court's denial of summary judgment on that claim.


Summary judgment is appropriately granted if no genuine issues of material fact exist and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. When material facts are not in dispute, whether governmental action is protected by immunity is a question of law. Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996). The government bears the burden of proving entitlement to immunity, which is narrowly construed. Angell v. Hennepin County Reg'l Rail Auth., 578 N.W.2d 343, 346 (Minn. 1998) (citing Zank, 552 N.W.2d at 721; Holmquist v. State, 425 N.W.2d 230, 231 (Minn. 1988)); Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 n.6 (Minn. 1988).


The district court determined that the county was entitled to statutory immunity on Barrett's claim that the county was negligent in originally placing the road alongside the creek in 1920 and for failing to move the road prior to her accident. With respect to the original road design, evidence of a specific governmental decision or written policy is unnecessary because "the challenged government conduct facially involve[d] a balancing of policy objectives." Nusbaum, 422 N.W.2d at 722 n.6. With respect to the failure of the county to reroute the road, the county submitted an affidavit and deposition testimony from its engineer, who essentially admitted that the road did not meet current design standards. The engineer, however, explained that the county made decisions regarding road redesign based on economic, safety, and traffic concerns, and that it generally gave priority to roads with high traffic volumes. See Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. 1995) (engineer's prioritization of road repair protected). This evidence was sufficient to show that any decision by the county to redesign the road necessarily involved "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." Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 412 (Minn. 1996) (citation omitted).

Barrett also argues that the county had a common law duty to maintain the road in a "reasonably safe condition." Johnson v. Nicollet County, 387 N.W.2d 209, 211 (Minn. App. 1986). The issue of whether the county knew of a dangerous condition and had a duty is separate and distinct from an immunity analysis. Holmquist, 425 N.W.2d at 232; Nguyen v. Nguyen, 565 N.W.2d 721, 723-24 (Minn. App. 1997).

Barrett offered no evidence, however, showing that the county was on notice of the dangerous condition of the road prior to Barrett's accident. The county submitted records showing only one accident occurring on the road since 1989. Although there was some opinion evidence by a former county employee who had told "someone" in a county garage that the road needed guardrails, he did not share his opinion with either his supervisor or the county engineer. Indeed, the engineer testified that he had received no complaints regarding the road from county residents or employees and that he was unaware of any safety concerns with the road prior to Barrett's accident. Under these circumstances, the county was not derelict in its duty to maintain the road. See Minn. Stat. § 163.02, subd. 1 (1996); Hansen v. City of St. Paul, 298 Minn. 205, 207-08, 214 N.W.2d 346, 348 (1974).


The district court determined that the county was not entitled to statutory immunity on Barrett's claim that it was negligent for failing to install guardrails in the area where her car left the road. The county argues that Barrett's guardrail claim necessarily implicates policy decisions regarding road design because its engineer claimed that due to the narrow width or absence of a shoulder in that area, it would have been impossible or unfeasible to install guardrails without moving or redesigning the road.

A governmental entity's decision regarding installation of guardrails generally involves the exercise of professional judgment on where guardrails are needed and whether the guardrail itself constitutes a hazard. See Abbett v. St. Louis County, 424 N.W.2d 82, 85 (Minn. App. 1988) (decision whether to install guardrail not entitled to immunity), review denied (Minn. July 28, 1988); see also Angell, 578 N.W.2d at 347-48 (failure to erect barricade not entitled to statutory immunity when governmental entity failed to show that relevant decision involved anything more than technical and professional implementation of established policy). The engineer's assertion that guardrails were unfeasible could be characterized as a statement of his professional opinion; the county offered no other evidence to support the engineer's opinion. Given the county's burden to prove entitlement to immunity and the narrow construction that immunity must be given, the district court did not err in concluding that statutory immunity was not available to the county on this claim.

The district court also rejected the county's argument that Barrett's guardrail claim is barred by snow and ice immunity. See Minn. Stat. § 466.03, subd. 4. Snow and ice need not be the sole basis for a claim, merely a contributing factor. Koen v. Tschida, 493 N.W.2d 126, 128 (Minn. App. 1992), review denied (Minn. Jan. 28, 1993). In this case, although the record includes some evidence of winter driving conditions, no evidence was offered linking winter road conditions to Barrett's accident or to otherwise establish that snow and ice contributed to the accident. Under these circumstances, the county has failed to prove its entitlement to snow and ice immunity.

We therefore affirm the district court's grant of summary judgment on the road design claim and its denial of summary judgment on the guardrail claim. We also deny the county's motion to dismiss Barrett's notice of review.

Affirmed; motion denied.

[1] Barrett also alleged that the county was negligent in failing to maintain the crown in the middle of the road at a safe height. On appeal, she does not challenge the district court's grant of summary judgment to the county on this claim.