This opinion will be unpublished and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


Elvera Schroeder, et al.

Cornelius Schroeder,


State of Minnesota,

Filed April 6, 1998
Holtan, Judge*

Lake of the Woods County District Court
File Nos. C2-97-000003; C0-97-000016

George G. Eck, Dorsey & Whitney, 1300 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402-1498 (for respondent Elvera Schroeder, et al.)

Mark R. Whitmore, Bassford, Lockhart, Truesdell & Briggs, 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Cornelius Schroeder)

Mike Hatch, Attorney General, David T. Schultz, Special Assistant Attorney General, Halleland Lewis Nilan Sipkins & Johnson, P.A., Pillsbury Center South, Suite 600, 220 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Considered and decided by Peterson, Presiding Judge, Foley, Judge,** and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant contends the district court erred in its determination that appellant was not entitled to discretionary immunity against respondents' claim of negligent road maintenance. We agree and reverse.


1. The Accident

The Schroeder family, respondents, were crossing the International Bridge in Baudette, Minnesota, in July 1994, when the accident giving rise to this suit occurred. Cornelius Schroeder was driving the family car, which was in need of repair. He slowed to less than five miles an hour as he approached the bridge, because he had driven over it many times and knew about a dip where the road and bridge met. Either the car bottomed out attempting to get over the dip and that pierced the gas tank or the dragging exhaust system caught on the bridge, fell off, and then rebounded to pierce the gas tank. Gas ran from the tank. Cornelius backed the car down the bridge to the customs station where he was told to move the car. He got back in the car and the gas ignited, and the car caught on fire. Steven Schroeder, age eight, burned to death inside the car, unable to get out. Cornelius was injured and the other children and Elvera Schroeder were badly burned.

2. The Roadway and MnDOT

The International Bridge is a part of Minnesota Trunk Highway 72 and maintained by the Minnesota Department of Transportation (MnDOT). In 1970, MnDOT began to notice settlement problems where the pavement met the bridge. According to one of respondents' experts, the dip or gap between the road and the bridge typically was approximately two and one-half inches. The metal abutment of the bridge jutted out into the gap. The state has used a bituminous patch on numerous occasions to level out the reappearing gap.

Prior to 1996, the state had a priority system for determining which roadways receive funding for repairs other than patching; the system balanced relative needs and costs on a statewide scale. No project to reconstruct Trunk Highway 72 was ever submitted to the priority system prior to the accident because there had been no accidents in the area before this that would have prompted MnDOT to consider other repairs. Employing methods other than patching had not been considered a high priority or a cost-effective use of MnDOT funds.

MnDot employees in the district inspect all bridges each spring and fall for rideability. Donald Sorenson, sub-area foreman, inspected the International Bridge in the spring of 1994, noticed the dip, and determined that it was not so severe as to require immediate patching. He considered patching it for the time being using a bituminous cold mix, but decided that it would be more cost-effective to wait until later that summer and patch it with the more durable bituminous hot mix.

The district court found that Sorenson's decision to wait to patch the road until later in the summer was not a policy decision entitled to governmental immunity. It found that he had not engaged in policy deliberations, but had simply decided to wait on patching the dip "for convenience sake." Respondents assert that it is the state's failure to undertake more substantial repairs than patching, and not Sorenson's determination to delay patching, that is the negligent conduct at issue.


An order denying summary judgment to a party that has asserted immunity is immediately appealable. Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn. 1986). In reviewing a grant of summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4, (Minn. 1990). Whether discretionary immunity applies is a question of law, which we review de novo. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).

Minn. Stat. § 3.736 (1998) allows for tort suits against the state. Excluded from such liability is "a 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. Discretionary immunity is construed narrowly, as it is an exception to the general rule that the state can be sued. Cairl v. State, 323 N.W.2d 20, 23 (Minn. 1982).

The law distinguishes between planning-level decisions and those made at the operational level to aid in determining whether particular conduct is protected. Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988). Planning-level decisions generally involve policy considerations and are therefore protected, whereas operational-level conduct is less likely to involve such considerations. Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988).

The critical inquiry is whether the conduct challenged involved a balancing of policy objectives. Id. Immunity applies if the state produces evidence that the conduct was of a policy-making nature involving social, political, or economic considerations. Id. It does not extend to matters of professional or scientific judgment, unless the decision also involved a balancing of policy objectives. Id. at 722-23. When the challenged conduct is in compliance with a policy, the challenge is to the policy itself, which may, in turn, be protected by discretionary immunity. Id. at 723.

The party asserting an immunity defense has the burden of proving that the conduct at issue is entitled to immunity. Gerber v. Neveaux, 578 N.W.2d 399, 402 (Minn. App. 1998), review denied (Minn. July 16, 1998). But when a defendant asserts immunity,

the plaintiff has the burden to articulate specifically the claim that must be scrutinized to determine the immunity issue and to make some showing of fact to suggest the basis for the claim.

Id. at 403. "A court reviewing immunity issues must examine with particularity the nature of the conduct the plaintiff alleges as the basis of a negligence claim." Id. (quoting Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 411 (Minn. 1996)); see also Nusbaum, 422 N.W.2d at 722 (court must identify precise government conduct challenged by plaintiff).

Respondents correctly assert that they have never alleged or argued that the state's negligence stemmed from the MnDOT employee, Donald Sorenson, determining that the road did not have to be patched immediately. Rather, they argue that the state was negligent by (1) continuing simply to repair the dip with patching, (2) failing to diagnose the problem causing the dip, and (3) "abdicating its responsibility" to maintain reasonably safe roads as set forth in the MnDOT maintenance manual.


The determination to continue to repair the dip with patching is entitled to discretionary immunity. Joseph McKinnon, the district design engineer, stated in his affidavit that any repair other than patching could only have been completed through the state's road repair priority system. Every year prior to 1996, each district would propose a series of improvement projects for roadways within the district and would submit the proposals to the Office of Highway Programs. The Office of Highway Programs reviewed all requests statewide and prioritized them on the basis of funds available, ability to coordinate with other projects, and whether the road qualified for federal funding.

McKinnon stated in his affidavit that the district never referred the roadway to the priority system, because repairs other than patching were not considered a cost-effective expenditure. There had been no reported accidents in the area prior to the Schroeder accident in 1994, which, according to McKinnon, would have prompted the district to identify the road as in need of more substantial repair.

The priority system itself is a policy or planning operation of the state that is entitled to discretionary immunity. See McEwen v. Burlington N. R.R. Co., 494 N.W.2d 313, 317 (Minn. App. 1993) (decision not to upgrade train-warning devices immune when made in accordance with priority system that balances funding and safety considerations), review denied (Minn. Feb. 25, 1993); Wornson v. Chrysler Corp., 436 N.W.2d 472, 474-75 (Minn. App. 1989) (installation of traffic signals based on prioritization system immune), review denied (Minn. Apr. 26, 1989). MnDOT also balanced policy considerations in determining which roadways to submit to the prioritization system. Although professional or technical judgments went into this determination, McKinnon's affidavit establishes that the policy considerations of cost and safety also played a role.

Donald Sorenson, the MnDOT sub-area foreman for the district, followed MnDOT policy when he contemplated patching the road rather than implementing some other alternative. The determination of whether to make repairs more substantial than patching would have to go through the priority system and was not a determination that could be made by the maintenance crew. Because continuing to patch the road rather than make more substantial improvements complied with MnDOT policy, it is protected by discretionary immunity.


Respondent also asserts that the state was negligent because of its failure to determine the cause of the dip. But negligent information gathering does not negate the immunity of an otherwise immune decision. See Wornson, 436 N.W.2d at 475 (negligent collection of data regarding installation of signal light immaterial when installation in any event determined by priority system involving planning decisions); see also In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 548 (Minn. App. 1997) (failure to convey weather information to snowplow drivers did not defeat immunity claim based on planning level decision).


Respondents argue that the state acted contrary to the policies in the MnDOT manual by: (1) not making the repair of the dip a first priority, (2) failing to take corrective action other than patching, and (3) failing to determine whether the dip was the result of a gravel base or soil subgrade failure, and it is therefore not entitled to immunity.

But the state did not breach the manual's polices.[1] First, the manual does state that first priority shall be given to "roadbed deficiencies which immediately affect the safety of the traveling public," but it goes on in the next paragraph to describe as a second priority such things as "roadway settlements." MnDOT Maintenance Manual, § 5-791.026 A. (June 7, 1981). Second, the manual specifically states that settlements on bituminous approaches to bridges (the dip) can be corrected by adding bituminous materials (the patch) to the surface. Id., § 5-791.259(14) D. (June 30, 1981). Third, the manual simply states that, before making surface repairs, it "should," not "must," be determined whether the damage was the result of gravel base or soil subgrade failure. Id., § 5-791.026 B. Moreover, this is a general provision that does not relate to bridge abutments on bituminous surfaces, but, rather, relates to whether drainage or reconstruction of the gravel base of the road is necessary.


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

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

[1] Only parts of the MnDot manual were introduced into the record. We take judicial notice of the manual. See Minn. R. Evid. 201(f) (judicial notice may be taken "at any stage of the proceedings"); Gutbrod v. County of Hennepin, 529 N.W.2d 720, 722 (Minn. App. 1995) (assuming trial court took judicial notice of MnDOT manual pursuant to Minn. R. Evid. 201).