This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Paul D. Norlander, individually and as parent

and guardian of Daniel Ray Norlander and

Raiya Lyn Norlander, minor children,



Norman's Bar, et al.,


State of Minnesota,


Filed March 9, 1999


Willis, Judge

St. Louis County District Court

File No. C297600939

Robert E. Mathias, 1217 East First Street, Duluth, MN 55805 (for appellant)

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

Considered and decided by Halbrooks, Presiding Judge, Crippen, Judge, and Willis, Judge.



Paul D. Norlander appeals from the district court's grant of summary judgment to the state on immunity grounds. We affirm.


Early in the morning of Sunday, February 4, 1996, appellant's wife, Jane Marie Norlander, died when the vehicle she was driving jumped a bridgerail along an exit ramp between I-35 and I-535 in Duluth. Her blood-alcohol level at the time of the accident was approximately .20. Appellant commenced this action, alleging the state was negligent in plowing or in failing to plow the roadway.

The district court granted the state's motion for summary judgment on the grounds of statutory immunity and snow and ice immunity. Minn. Stat. § 3.736, subd. 3(b), (d) (1998). This appeal followed.


On appeal from summary judgment, this court asks A(1) whether there are any genuine issues of material fact and (2) whether the [district court] erred in [its] application of the law.@ State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted). In addition, we must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

When a governmental entity establishes that it is immune from liability, summary judgment is appropriate. In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 546 (Minn. App. 1997). Immunity is a question of law, subject to de novo review. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

Appellant contends that the district court erred in concluding that this case is controlled by Hennes v. Patterson, 443 N.W.2d 198, 201-04 (Minn. App. 1989) (concluding, on virtually identical facts, that state was immune from liability based on Minn. Stat. § 3.736, subd. 3(b) (statutory immunity), (d) (snow and ice immunity)), review denied (Minn. Sept. 15, 1989). He argues the immunity doctrines applied by the district court do not apply, claiming that state employees here failed to follow the orders of their supervisors.

A. Statutory Immunity

Statutory immunity protects the state and its employees from liability for Aa loss caused by the performance or failure to perform a discretionary duty, whether or not the discretion is abused.@ Minn. Stat. § 3.736, subd. 3(b). The district court concluded that the state has statutory immunity in this case.

In Hennes, this court stated that while this exception to liability Ais to be interpreted narrowly,@ statutory immunity Ais designed to assure that the courts do not pass judgment on policy decisions entrusted to coordinate branches of government.@ 443 N.W.2d at 202 (citing Holmquist v. State, 425 N.W.2d 230, 231 (Minn. 1988)). Thus, protected conduct includes planning-level or public-policy decisions based on factors such as the political, economic, or social effects of the plan or policy. Id. By contrast, operational-level or day-to-day decisions are not protected. Id.

The accident here, like the accident in Hennes, involved a vehicle that jumped a bridgerail that was partially covered by a snowbank formed by Minnesota Department of Transportation (MnDOT) snowplow operators. Id. at 200. In both cases, the snowplow operators followed established MnDOT policies. Id. Here, these policies resulted in a snowbank that was approximately two-thirds the height of the bridgerail.[1]

MnDOT procedures call for the removal of snow and ice from roadways in accordance with a policy of prioritization, which gives highest priority to clearing the traveled portions of roadways. APriority A@ work, which includes the clearing of snow from barriers along areas such as bridges and ramps, is a secondary priority. Application of MnDOT policies and the discretionary balancing of interests by supervisors delayed the clearing of snow from along the bridgerail involved here.

First, snow removal for the district in which the accident took place (ADistrict 1A@) is particularly problematic when there is appreciable snowfall. Because of the I-35 tunnels and limited storage areas for snow, plowed snow blows back onto the roadways. Thus, to maintain clear lanes of travel, snow must be plowed and removed. From January 28 to February 1, 1996, District 1A personnel performed this highest-priority snow removal by clearing snow from the traveled portions of roadways following a substantial snowstorm on January 28-29.

Second, following the snowstorm, the weather in Duluth became progressively colder, ranging from a high of -5 degrees on January 31 to a low of -39 degrees Fahrenheit on February 2. MnDOT policy does not permit snow removal when the temperature is -20 degrees or colder. District 1A has adopted a slightly lower threshold that allows snow removal if the temperature is no colder than -25 degrees and there is no wind. Because of the cold, District 1A suspended snow removal on Friday, February 2.

Third, District 1A had a limited overtime budget for the winter of 1995-96, and because of record snowfall, the budget was being depleted rapidly. Supervisors in District 1A, therefore, authorized overtime only for highest-priority snow removal, and workers performed no Priority A work on weekends or after regular shifts.

Fourth, clearing snow from along bridgerails is a complex process involving specialized equipment. The roadway must be closed and the work scheduled in advance, requiring the coordinated effort of several workers using various pieces of equipment. In addition, the snowbank along the bridgerail where the accident occurred was two-thirds the height of the bridgerail only for a short distance where the ramp passes over an access road and a section of I-35. Thus, even if snow along the bridgerail could have been cleared, supervisors would not have deployed crews to clear a single spot, preferring to wait and make the coordination of crews and equipment part of a larger cleanup effort.

Appellant contends that District 1A personnel ignored a direct order from their supervisors to clear the snowbank from along the bridgerail where this accident occurred. But the record shows that the order appellant refers to involved a condition in another sub-area of District 1A.[2] In any event, the order did not authorize workers to disregard MnDOT policies.

Because of the application of MnDOT policies and the discretionary balancing of interests by District 1A supervisors, the state has statutory immunity from liability for the accident pursuant to Minn. Stat. § 3.736, subd. 3(b). See Hennes, 443 N.W.2d at 202-04 (concluding that state had statutory immunity on virtually identical facts).

B. Snow and Ice Immunity

The state and its employees are not liable for

a loss caused by snow or ice conditions on a highway * * *, except when the condition is affirmatively caused by the negligent acts of a state employee.

Minn. Stat. § 3.736, subd. 3(d). The district court concluded that the state has snow and ice immunity here.

This court has recognized that, absent a claimant's showing of an affirmative act of negligence by a state employee, snow and ice immunity

protects government entities from liability for damages caused by the natural consequences of snow plowing when the plowing was done pursuant to established snow-removal policies.

In re Alexandria Accident, 561 N.W.2d at 549 (concluding that snow and ice immunity barred claims) (citations omitted).

Pursuant to established policies, District 1A personnel plowed snow from left to right, without pushing snow over the bridgerail at issue. Because there is no evidence that the snowbank was caused by affirmative negligent acts of state employees in plowing the roadway, the state has snow and ice immunity from liability for the accident pursuant to Minn. Stat. § 3.736, subd. 3(d). See Hennes, 443 N.W.2d at 203 (concluding that state had snow and ice immunity on virtually identical facts).

C. Failure to Warn

Appellant also claims that the state was negligent in failing to warn of a dangerous condition. But this court generally reviews Aonly those issues that the record shows were presented and considered by the trial court in deciding the matter before it.@ Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (citations omitted). Because the district court did not address failure to warn, we do not address the issue on appeal.

D. Vicarious Official Immunity

The state seeks review pursuant to Minn. R. Civ. App. P. 106, claiming that the district court also should have found that the state has vicarious official immunity on these facts. Because we affirm the district court's conclusions that the state has statutory immunity and snow and ice immunity, we do not address the issue of vicarious official immunity.

Because there are no genuine issues of material fact and the district court correctly applied the law relating to statutory immunity and snow and ice immunity, the district court did not err in granting the state's motion for summary judgment.


[1] MnDOT policies require that snow be plowed from left to right and against the bridgerail. Because there is an access road and a section of I-35 below the exit ramp, snow could not be plowed over the bridgerail. Under these circumstances, MnDOT schedules snow for removal when the level averages two-thirds the height of the barrier.

[2] On February 1 or 2, District 1A's superintendent received notice of an automobile accident involving a snowbank along a bridgerail in Superior, Wisconsin. He then advised one of his sub-area supervisors to give high priority to clearing that snowbank.