STATE OF MINNESOTA
IN COURT OF APPEALS
Thomas Anthony LaMosse,
City of Minneapolis,
Filed February 9, 1999
Hennepin County District Court
File No. 984111
Scott D. Eller, Ann E. Walther, Best & Flanagan, 4000 U.S. Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for appellant)
Mark L. Seeger, Paige J. Donnelly, Ltd., 900 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Klaphake, Judge.
While driving his motor scooter southbound on West River Road at midnight, Thomas Anthony LaMosse struck an unmarked median and was injured. LaMosse brought a negligence action against the City of Minneapolis (the city) and Hennepin County for failing to maintain the traffic sign that warns motorists of the median. On appeal, the city argues the trial court erred in denying summary judgment on the basis of discretionary immunity. We affirm.
On appeal from denial of summary judgment, we determine whether any genuine issues of material fact exist and whether the trial court erred in its application of the law. See Minn. R. Civ. P. 56.03 (setting trial court standard for summary judgment); Waste Recovery Coop. v. County of Hennepin, 517 N.W.2d 329, 330 (Minn. 1994) (noting denial of summary judgment is immediately appealable when based on governmental immunity). Governmental immunity from tort liability presents a question of law, which we review de novo. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).
The city argues LaMosse is challenging the city's signage and repair policies, which are protected by the doctrine of discretionary immunity. See Minn. Stat. § 466.03, subd. 6 (1998) (defining discretionary acts immune to tort liability); Zank v. Larson, 552 N.W.2d 719, 721-22 (Minn. 1996) (holding signage decision subject to discretionary immunity because government's conduct was of policy-making nature involving social, political, safety, or economic considerations); Berg v. Hubbard County, 578 N.W.2d 12, 15 (Minn. App. 1998) (noting immunity protects government's road maintenance if based on policy that balances policy objectives such as safety and economic considerations), review denied (Minn. July 16, 1998). But, the record demonstrates: (1) the city previously placed a yellow sign on the west side of West River Road approaching the median and a white sign with orange reflectors on the median indicating the split in the road; (2) the median sign was apparently missing the night of LaMosse's accident; and (3) the complaint alleges negligence by the city in maintaining the center divider. Given these undisputed facts, we conclude replacing a missing sign does not constitute a policy decision involving social, political, safety, or economic considerations. See Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722-23 (Minn. 1988) (concluding improper placement of road sign did not involve balancing of policy objectives and not afforded immunity); Ostendorf v. Kenyon, 347 N.W.2d 834, 838 (Minn. App. 1984) (holding once discretion to place traffic signs is exhausted, state's placement of traffic signs is not discretionary act). Under these circumstances, the trial court properly denied summary judgment based on discretionary immunity.