may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Michael J. Conlin,
City of Saint Paul,
Filed March 2, 1999
Reversed and remanded
Concurring in part, dissenting in part, Short, Judge
Ramsey County District Court
File No. C5-97-11743
Clayton M. Robinson, Jr., St. Paul City Attorney, Margaret A. Skelton, Assistant City Attorney, 550 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for appellant)
Considered and decided by Short, Presiding Judge, Lansing, Judge, and Randall, Judge.
Respondent, who was injured in a motorcycle accident on a street recently oiled and sanded by appellant, brought a negligence action against appellant. Appellant asserts that the district court erroneously denied appellant's motion for summary judgment based on vicarious official immunity on the issue of whether the project foreperson was negligent in applying the sand. Respondent asserts that the district court erroneously awarded appellant partial summary judgment based on statutory immunity on the issue of whether the city was negligent in failing to post warning signs after applying the sand. We reverse and remand.
On August 30, 1996, at approximately 11:00 p.m., respondent Michael J. Conlin turned his motorcycle onto Ross Avenue in St. Paul. The motorcycle encountered the sand and started to slide, eventually tipping over. Conlin asserts that his shoulder, neck, and back were injured and that these injuries have caused him to suffer from depression.
Conlin brought a negligence action against the city. The city moved for summary judgment based on statutory immunity and vicarious official immunity. The district court granted the city's motion for statutory immunity on the issue of whether the city was negligent in failing to inspect the street after oiling and sanding it and failing to warn of a hazardous condition. In its initial order, the district court did not rule on the city's motion for summary judgment based on vicarious official immunity on the issue of whether an unreasonable amount of sand applied to the street created a hazardous condition. The court denied this motion in a supplemental order. The city appeals the district court's denial of the city's request for summary judgment based on vicarious official immunity. Conlin filed a notice of review and appeals the district court's partial summary judgment award to the city based on statutory immunity.
I. Vicarious Official Immunity
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 doctrine is intended to provide government officials with protection from "the fear of personal liability that might deter independent action." Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988) (citation omitted). Absent malice, the critical question is whether a public official's actions were discretionary or ministerial. Kari, 582 N.W.2d at 923. Discretionary actions are those that involve "individual professional judgment that necessarily reflects the professional goal and factors of a situation." Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (citation omitted). Ministerial actions, however, are "'absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.'" Id. (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937) (citation omitted)).
Vicarious official immunity protects government employers based on their employees' official immunity. Id. at 316. The decision of whether to grant a governmental employer vicarious official immunity has been termed a policy question. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992). The supreme court has continually held, however, that the failure to extend vicarious official immunity to an employer would defeat the purpose of official immunity. See e.g., Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993) (holding granting official immunity to social worker but denying county immunity 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 (holding official immunity's purpose would be defeated if police officer's employer could be held vicariously liable). More recently the supreme court has stated:
Where an employee or agent is protected by official immunity, the government entity will not be called on to indemnify that individual nor will the government entity be liable under the doctrine of respondeat superior.
Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 415 (Minn. 1996). The employer generally may be protected by vicarious official immunity even if the employee in question is not a named defendant in the suit. Wiederholt, 581 N.W.2d at 317.
Here, the district court determined that the foreperson of this oiling and sanding project, Dale Jones, was not entitled to official immunity for any negligence in applying the sand. The district court stated, "Foreman Jones's decision making was limited to ministerial level decisions because he [was] exercising technical rather than discretionary judgment." The district court therefore determined that the city was not entitled to vicarious official immunity and refused to grant the city's summary judgment motion on this issue.
During his deposition, Jones testified that the city has no guidelines regarding the amount of sand to be applied to streets after oiling and that he attempts to keep project costs down by avoiding excess sand application. He explained that although the chipper, which distributes the sand, is initially set to distribute sand based on manufacturer guidelines, he tests this distribution level by doing a 10 to 20 foot stretch of road and then adjusting the machine. Jones also explained that he inspects the sand application during the project by walking or driving with the machines. He described how the correct amount of sand may be determined by placing a hand or foot in the sand and testing to see that it does not leave a large track or bring oil up. He also testified that because of his experience, he can often tell if the sand level is correct by "eyeballing" it.
In In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 549 (Minn. App. 1997), review denied (Minn. June 26, 1996), this court determined that a snow-plow operator's decisions regarding speed and time and manner of plowing were discretionary rather than ministerial, and thereby protected by official immunity, because the operator was required to balance various factors, including weather conditions. See also Olson, 509 N.W.2d at 372 (determining social worker's case-plan development protected by official immunity because it required exercise in judgment). Similarly, in this case, Jones's decision regarding the sand application was discretionary, requiring him to follow the machines and inspect the work throughout the application. Because the city has no specific guidelines, another foreperson might decide to apply more or less sand than Jones would apply in a given situation. Thus, Jones's decision was discretionary and not ministerial. See Cook, 200 Minn. at 224, 274 N.W. at 167 (stating ministerial action is "absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts" (quotation omitted)).
Because Jones's actions were discretionary and warrant official immunity protection, the district court erred in concluding that the city was not entitled to vicarious official immunity. See Watson by Hanson, 553 N.W.2d at 415 (stating where employee protected by official immunity, government-entity employer will not be held liable). We, therefore, reverse and remand the district court's decision denying the city's motion for summary judgment based on vicarious official immunity on the issue of whether the sand was negligently applied. We direct the district court to enter summary judgment on this issue.
II. Statutory Immunity
Although generally liable for torts, municipalities are immune from claims "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. §§ 466.02, .03, subd. 6 (1998). As an exception to the general rule of liability, this immunity doctrine must be narrowly construed. Gerber, 578 N.W.2d at 403. The purpose of this exception is to prevent the judiciary from second-guessing legislative or executive policy-making activities. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 718 (Minn. 1988).
In deciding whether statutory immunity applies, the court "must examine the precise governmental conduct in question." Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994) (citation omitted). The supreme court has distinguished between planning-level (policy) decisions and operational-level decisions:
Planning level decisions are those involving questions of public policy, that is, the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy. Operational level decisions, on the other hand, involve decisions relating to the ordinary day-to-day operations of the government.
Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988) (citations omitted). "The crucial question * * * is whether the conduct involves the balancing of public policy considerations in the formulation of policy." Id. at 234. Statutory immunity applies only when the government "can produce evidence its conduct was of a policy-making nature involving social, political, or economic considerations, rather than merely scientific or professional judgments." Steinke, 525 N.W.2d at 175 (citation omitted).
In Christensen v. Mower County, 587 N.W.2d 305, 306 (Minn. App. 1998), a motorist brought a negligence suit against Mower County after she was injured when she lost control of her car while driving over loose lime chips used by the county in seal-coating the road. The motorist asserted that the county negligently failed to place warning signs on the road after seal-coating it. Id. The district court awarded the county summary judgment based on statutory immunity. Id. Reversing, this court concluded:
Regardless of whether the decision not to change an existing practice rose to the level of being a policy, respondent's consideration of the cost of keeping warning signs on seal-coated roads until the danger of loose limestone chips was eliminated was not a meaningful exercise of discretion because the cost of signage appears to be de minimus and respondent offered no facts that the cost of leaving the signs in place was more than de minimis.
Id. at 308. This court relied on Nguyen v. Nguyen, 565 N.W.2d 721, 724 (Minn. App. 1997), where we noted that "'such relatively inexpensive remedies as guardrails or warning signs * * * may not require a policy decision regarding the allocation of resources.'" Id. Christensen points out that the county provided no evidence regarding the expense burden of leaving up the warning signs used during the project and states that, therefore, the county "failed to meet its burden of proving that it considered policymaking factors sufficiently meaningful to invoke discretionary immunity." Id. (footnote omitted).
Here, the district court determined that the city's decision to respond only to complaints and not to post warning signs after oiling and sanding was a policy decision and that, therefore, statutory immunity barred Conlin's negligence claim on this issue. The court did not make any specific finding as to how the city made the decision not to post signs and instead merely repeated the statements made by the head of the city's Street Maintenance Division, Gary Erichson:
According to Gary Erichson, the current supervisor of the Street Maintenance Division, he balanced the cost of placing signs, such as work force requirements, against traffic and safety concerns.
(Footnote omitted.) Although not entirely clear, the district court apparently accepted Erichson's affidavit as true, as the court went on to note:
Mr. Erichson's affidavit plainly sets forth the factors he balanced when he decided to respond to complaints rather than to post signs. While many question the wisdom of Defendant's policy, the Court cannot pose such questions as to do so would contravene the very purpose of the exception.
Conlin insists that the city has no policy on whether or not to put up warning signs after sanding. Conlin cites to the deposition testimony of Jones, the project foreperson, and of another street maintenance worker in support of his argument that the city did not have a policy on whether to put up warning signs after sanding. Despite Conlin's insistence that their testimony demonstrates that the city did not have a policy, their testimony merely indicates that they knew signs were not posted after oiling and sanding but were unaware of whether the city had adopted a policy on the issue.
Conlin also asserts that the district court erroneously considered Erichson's affidavits because they were untimely, based on hearsay, and contradictory. Although Conlin asserts that the affidavits were untimely because they were submitted after the discovery deadline, the affidavits were submitted in support of the city's summary judgment motion. Thus, they were not untimely. See Minn. R. Civ. P. 56.01 (stating summary judgment motion may be supported by affidavits). Further, Conlin's argument that Erichson's statements are based on hearsay relates to Erichson's first affidavit, which referenced decisions by the city's street maintenance department. In Erichson's second affidavit he clarified that he made these decisions himself on behalf of the department. The second affidavit, therefore, nullifies any hearsay claim. Also, the two affidavits are not contradictory; the second merely clarifies the first. Thus, the district court did not abuse its discretion by refusing to strike these affidavits. See Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (stating district court has broad discretion in deciding whether to admit evidence).
Even considering Erichson's affidavits, however, the record does not demonstrate that a policy decision was actually made about posting signs. Erichson stated only that he decided to continue the past practice of not posting signs based on "financial, safety, and traffic considerations." Similar to the county in Christensen, the city in this case did not introduce evidence of the actual expense entailed in putting up warning signs after oiling and sanding or in leaving up the signs used during the project. The record further contains no specific information on any of the other factors Erichson asserts that he considered. Without this evidence, the record is merely one supervisor's statement that he unilaterally decided that warning signs would not be used. This does not equate to evidence that the city made a policy decision. See Steinke, 525 N.W.2d at 175 (stating government has burden to "produce evidence that its conduct was of a policy-making nature, * * * rather than merely scientific or professional judgments" (citation omitted)).
Erichson's decision was basically a professional judgment. The practical problem in this case and the cases cited is that "professional judgment" (not immunized) often walks and talks and looks like "policy" (which is immunized). We agree the question is close. The same argument could be made that Jones's decision as to when to add sand was a professional judgment rather than policy. But we conclude that In re Alexandria Accident of Feb. 8, 1994 controls on that decision-making.
On the other hand, on this issue of posting signs, based on Christensen we conclude that the record does not demonstrate that the city council formally exercised its discretion and made a policy-level decision not to post signs after oiling and sanding. Thus, the city is not entitled to statutory immunity on this issue. Therefore, we reverse the district court's partial summary judgment on this issue and remand for further proceedings.
Reversed and remanded.
SHORT, Judge (concurring in part, dissenting in part).
I concur insofar as the majority concludes vicarious official immunity protects the city for its foreman's exercise of professional judgment. See Johnson v. State, 553 N.W.2d 40, 48 (Minn. 1996) (holding state's agents entitled to official immunity because state balanced protected official policy considerations in setting up warrant process and then followed applicable policy, procedure, and administrative rule in issuing warrant); Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, 273 (Minn. App. 1996) (holding official immunity extends vicariously to the county because traffic engineer's decision to place "stop ahead" sign demonstrates exercise of judgment and failing to extend immunity would result in chilling effect on traffic engineer's decision to place "stop ahead" signs), review denied (Minn. Sept. 20, 1996). I respectfully dissent and would affirm the trial court's grant of immunity under Minn. Stat. § 466.03, subd. 6 (1998) on Conlin's claim of negligent failure to warn. See Zank v. Larson, 552 N.W.2d 719, 722 (Minn. 1996) (holding city entitled to statutory immunity because determining duration of red clearance signal involved balancing competing safety considerations).
 Although the parties and the district court term this immunity "discretionary immunity," the supreme court has labeled it "statutory immunity." See Angell v. Hennepin County Reg'l Rail Auth., 578 N.W.2d 343, 345 n.2 (Minn. 1998) ("We refer to immunity under [Minn. Stat. § 466.03, subd. 6 (1996)] as 'statutory immunity,' although earlier cases sometimes refer to it as 'discretionary immunity.'" (Citations omitted.)).