This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-98-1160

Christopher Haggerty,
Appellant,

vs.

Renee L. Pawlyshyn, as Special Representative
for the Estate of Sandra Wehrman,
Respondent,

Norbert J. Frie,
Respondent,

State of Minnesota,
Respondent.

Filed February 2, 1999
Affirmed
Willis, Judge

Dakota County District Court
File No. C7976802

Keith D. Johnson, Wold, Jacobs & Johnson, P.A., Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)

Bradley D. Lance, Taylor, Harrington, Rerat, Lance & Stofferahn, 6900 Wedgwood Road, Suite 400, Maple Grove, MN 55311 (for respondent Pawlyshyn)

Jeffrey C. Schmidt, Meagher & Geer, 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Frie)

Michael A. Hatch, Attorney General, Jerome L. Getz, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent State of Minnesota)

Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant Christopher Haggerty challenges the grant of summary judgment to the state, claiming the district court erred in concluding that vicarious official immunity protects the state from liability arising from a single-car accident. By notice of review, the state challenges the district court's denial of summary judgment on the state's claim of statutory immunity and the court's failure to find that, in any event, the state has no liability for appellant's injuries because it did not have notice of the allegedly dangerous road condition. We affirm.

FACTS

At approximately 1:17 a.m. on April 15, 1994, appellant and Sandra Wehrman were involved in a single-car accident on the ramp connecting Trunk Highway 3 southbound and Interstate 494 westbound in Dakota County. Although there is a conflict in the record regarding who was driving, Wehrman was thrown from the car in the accident and died. Appellant suffered serious injuries.

Appellant sued the state, claiming it was negligent in failing to install a guardrail and in failing to place advisory signs on the ramp.(1)   The state moved for summary judgment, claiming vicarious official immunity and statutory immunity. The district court granted summary judgment, concluding that the state was entitled to vicarious official immunity, but not to statutory immunity, finding that the engineering decision not to install a guardrail was based on "professional judgment and guidance from the Minnesota Department of Transportation Road Design Manual." This appeal followed.

D E C I S I O N

On appeal from summary judgment, this court considers whether any genuine issues of material fact exist and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Where, as here, there is no genuine issue of material fact, this court need not defer to the district court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989). Whether a government entity is protected by immunity is a question of law, which this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

Appellant argues that the district court erred in concluding that the state was entitled to vicarious official immunity for its employee's decision not to install a guardrail on the ramp.(2)   To decide whether vicarious official immunity protects the state from liability, this court must determine whether the employee who made the decision at issue would be entitled to official immunity and, if so, whether that immunity should be extended to the state. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998).

A. Official Immunity

Appellant claims that the state's engineer would not be entitled to official immunity, arguing the decision not to install a guardrail was ministerial because the Minnesota Department of Transportation Road Design Manual (manual) requires the installation of a guardrail at the site of the accident. The common-law doctrine of official immunity provides that

'a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.'

Johnson, 553 N.W.2d at 46 (citation omitted).(3)   Official immunity protects government officials from liability for discretionary actions they take in the course of their official duties. Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998). The purpose of the doctrine is to protect an official's exercise of independent judgment from judicial review. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992). For official immunity to apply, a government official's actions must involve "more than the performance of merely 'ministerial' duties." Johnson, 553 N.W.2d at 46 (citations omitted).

Here, the record shows that the engineer who decided not to install a guardrail on the freeway ramp exercised his judgment and considered safety concerns in making his decision, and there is no claim that he is guilty of a willful or malicious wrong. The manual provides:

There is no analytical way of precisely determining whether guardrail is needed in a given situation. Some guidelines and methodologies have been developed, but these must be supplemented with good engineering judgment. It must be remembered that guardrail itself is a formidable obstacle and should not be installed unless it will reduce accident severity. Guardrail should be installed discriminately * * * .

The question of whether to install a guardrail on the ramp where the accident occurred did not, therefore, involve a ministerial duty. See id. (defining "ministerial duty" as one that is "'absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts'") (citations omitted). To the contrary, the state's engineer was specifically required to exercise his discretion and, accordingly, official immunity would protect him from liability for his decision not to install a guardrail on the ramp.

B. Vicarious Official Immunity

Appellant argues that even if the state's engineer is protected by official immunity, the state is not entitled to vicarious official immunity. Vicarious official immunity protects government employers from liability where their employees have official immunity. Wiederholt, 581 N.W.2d at 316. The failure to extend vicarious official immunity to an employer when official immunity protects the employee would defeat the purpose of official immunity. See Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993) (stating that granting official immunity to social worker but denying immunity to county would "still leave the focus of a stifling attention on the social worker's performance, to the serious detriment of that performance") (citation omitted); Pletan, 494 N.W.2d at 42 (explaining purpose of official immunity would be defeated if police officer's employer could be held vicariously liable even though officer was immune). A government employer may be protected by vicarious official immunity even if the employee in question is not a named defendant in the lawsuit. Wiederholt, 581 N.W.2d at 316-17.

Here, because official immunity would protect the engineer from liability for his decision not to install a guardrail on the ramp, vicarious official immunity protects the state from liability. See Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 415 (Minn. 1996) (stating that because employee's decisions were protected by official immunity, government employer was also immune). We conclude that the district court did not err in granting summary judgment on the ground that the state is entitled to vicarious official immunity for its engineer's decision not to install a guardrail on the ramp.

Because we affirm summary judgment for the state on the ground of vicarious official immunity, we do not reach the state's arguments regarding statutory immunity and lack of notice of the allegedly dangerous condition.

Affirmed.

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

1. Appellant also sued Wehrman's estate and the owner of the car. Neither of those parties participated in this appeal.

2. Haggerty does not argue on appeal that the state was negligent in failing to post advisory signs.

3. In the context of official immunity, willful and malicious are synonymous. Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). A wrongdoing is willful and malicious if it is "the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right." Id.