This opinion will be unpublished and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


Daniel K. Sherburne,


Ronald Schneider,
Assistant Coach, et al.,

Filed April 6, 1999
Reversed and remanded
Huspeni, Judge*

Hennepin County District Court
File No. 97-002042

James P. Westphaal, 270 Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN 55415, and

Kenneth L. Labore, Daniel & Labore, 125 Southeast Main Street, Suite 339, Minneapolis, MN 55414 (for appellant)

Eric J. Magnuson, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for respondents)

Considered and decided by Anderson, Presiding Judge, Huspeni, Judge, and Holtan, Judge.**

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s grant of summary judgment on the grounds of discretionary immunity. We reverse and remand.


Appellant was injured at summer wrestling camp in July of 1990 when he was 16 years old. He underwent surgery on his right knee on October 12, 1990. Approximately two months later, as a member of the high school wrestling team, he was participating in a drill with assistant wrestling coach respondent Ronald Schneider. The drill is known as "riding." Sherburne was on all fours on the mat, and Schneider was over him, grabbing his elbow with one hand and placing the other hand on his stomach. At the sound of the whistle, Schneider yanked Sherburne’s ankle, pulling the right knee up and back and threw his weight on Sherburne in an attempt to force him to the mat. Permanent damage was caused to Sherburne’s previously injured right knee.

There is a factual dispute regarding whether or not the coaches knew of Sherburne’s prior injury and surgery. The school district claims they did not. Sherburne claims that they knew not only of this injury, but also that he was unable to participate actively in practice for some time because of the surgery. Additionally, Sherburne’s mother testified that she told the coach about the injury and the concerns of the parents about their son’s involvement in wrestling.[1] The school district denies that these conversations occurred.

The district court initially denied respondents’ summary judgment motion, but upon their request for clarification, the district court ruled that the doctrine of immunity required that summary judgment be granted on behalf of the school district and its employees.

Sherburne filed a motion for reconsideration, which the district court "granted for the limited purpose of allowing [Sherburne] to be heard on the court’s original October 29, 1997, ruling denying summary judgment." Subsequently, the district court ruled that summary judgment should stand.[2]


Summary judgment is appropriate where the record shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. All material facts and inferences are construed in favor of the nonmoving party. Hauser v. Mealey, 263 N.W.2d 803, 805 n.1 (Minn. 1978).


In analyzing an immunity question, it is essential to identify the precise governmental conduct at issue. Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988). Further, when examining a public official’s entitlement to immunity, we must look to the precise duty that gives rise to the cause of action. S.W. v. Spring Lake Park Sch. Dist. 16, 580 N.W.2d 19, 24 (Minn. 1998).

The district court dismissed Sherburne’s action on the basis of discretionary immunity. On appeal, however, the emphasis of the parties has shifted. They raise arguments on causation. Yet, the district court made no mention of causation. On appeal, the parties cite evidentiary matters that were not addressed by the district court. We recognize that even when a district court grants relief on an inappropriate basis, affirmance may be possible if an appropriate basis, in fact, exists in the record. See Myers v. Price, 463 N.W.2d 773, 775 (Minn. App. 1990) (stating that we will affirm judgment if it can be sustained on any grounds), review denied (Minn. Feb. 4, 1991). Our review of the record here, however, convinces us that a remand is necessary.

Sherburne argues that the actual parental notification to school officials, which directed that Sherburne not wrestle until released by a doctor, imposed a ministerial duty upon those officials, and removed from them any discretion to determine whether and under what circumstances Sherburne could participate in the wrestling program. Further, Sherburne insists that the Minnesota State High School League Handbook establishes a standard of care for school personnel, requiring both parental and physician approval in these circumstances.[3]

Respondents argue that this court need not even address the issue of immunity because, even assuming that immunity is not available to respondents, Sherburne has shown no causal connection between any negligence on the part of respondents and the injury giving rise to this action. Further, respondents stress that Sherburne’s physician was aware that Sherburne was wrestling and would have given written permission to wrestle if asked. Respondents also assert that the League Handbook is only a guideline, one that gives no specific responsibility to an identifiable individual to act in implementing policy and cannot be cited to establish a standard of care. See Larson v. Indep. Sch. Dist. No. 314, 289 N.W.2d 112, 118 (Minn. 1979) (reasoning that a curriculum bulletin merely provided recommendations and did not establish affirmative duties).

As already noted, the district court did not address any of the arguments that are stressed so strongly before this court, and it did not refer to the evidence that both parties rely upon on appeal. The League Handbook was part of the district court file (having been forwarded to the court as part of the supplemental record when the court had Sherburne’s motion for reconsideration under advisement).[4] Also, the court did not address the issue of the parental restrictions voiced to school personnel, despite the fact that deposition testimony on that issue was available to the court. (Again, while respondents dispute this notification, together with even any awareness of Sherburne’s injury, we must accept the position of the nonmoving party.)

The district court made a factual determination on a disputed issue by finding that "[Sherburne] was under no medical restriction at the time of the incident," and the order and memorandum do not recognize that this point is in contention. Respondents argue that neither the lack of a physician’s certificate nor the limitations placed on wrestling by Sherburne’s parents can be deemed anything other than a "but for" causation, a basis not recognized in Minnesota. Harpster v. Hetherington, 512 N.W.2d 585, 586 (Minn. 1994) (commenting that "but for" causation test has been rejected in this state). We believe, however, that the position taken by appellant in resisting the summary judgment award and insisting that unanswered issues remain, is a sound one.

Further, respondents’ argument that expert testimony is needed to demonstrate how the conduct of coaches in permitting Sherburne to wrestle deviated from the standard of conduct expected of school personnel, is countered by appellant’s contention that the Handbook suffices as a standard of care. These arguments raise additional concerns that we believe must be addressed in the first instance by the district court.[5]

Because the issues being presented to this court on appeal were apparently not argued before the district court, and, in any event, were not addressed by that court, we reverse and remand. On remand, the court shall consider and address the arguments (and the evidentiary support for those arguments) presented to this court on appeal, and determine whether any material fact issues remain that affect immunity and causation.

Reversed and remanded.

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

** 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] Deposition testimony of Sherburne's mother states that she told the coach that she did not want her son to wrestle until a doctor "signed off." But in her affidavit, she states that she informed the coach that she did not want her son to participate in any way that would jeopardize his knee.

[2] In its memorandum granting summary judgment, the district court stated, in part:

[Appellant] was under no medical restriction at the time of the incident. [Respondents], therefore, had no duty to require [appellant] to provide written authorization or additional safety precautions.

* * * *

The decisions of the School Board and Superintendent with respect to hiring are the type of planning level decisions that invoke discretionary immunity. [T]he Principal, in hiring staff * * * had to balance cost * * * with the experience levels of the applicants along with their ability to work with the students.

Discretionary immunity also shields [respondents] from liability for claims of negligent instruction and supervision * * * . There is no evidence * * * that the School Board or Superintendent improperly supervised Brill's performance or that they had or should have had any knowledge * * * of a safety hazard. [The Principal's] decisions regarding providing supervisory training involved balancing economic considerations * * * .

In the memorandum accompany the order indicating that summary judgment would stand, the district court stated that
[b]oth parties submitted supplemental briefs with particular emphasis on the issue of immunity.

* * * *

The court's * * * original summary judgment [denial] was decided absent extensive consideration of the issue of immunity.

[3] The Handbook contains provisions that require:
Each year a MSHSL health questionnaire must be completed by the student's parent(s) or guardian(s) and kept on file in the school. The questionnaire could indicate the need for a physical examination prior to the student's participation in athletic and cheerleading activities. The health questionnaire will include:
A. a statement by the parent or guardian that the student has no known existing physical condition which would preclude participation and,
B. the signature of the parent or guardian which indicates approval for participation in athletic or cheerleading activities.
After major surgery or serious illness or injury, the attending physician must certify in writing the student's readiness for participation.
Minnesota State High Sch. League, Official Handbook (1990-1991).

[4] Respondents argue that the Handbook is not properly in evidence before this court because it was not in evidence before the district court granted summary judgment. However, the Handbook was before the district court when it addressed the motion for reconsideration, and is properly part of the record on appeal. Nonetheless, our concern remains that the court did not refer to this evidence in its final order granting summary judgment.

[5] An additional causation argument may be present. The record contains no expert medical testimony indicating that the presence of the first injury, coupled with the failure of the coaches to keep Sherburne from wrestling, was causally connected to the second injury. But neither party has raised this question, either in the district court or on appeal. Therefore, we do no more than take note of it.