may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1998)
STATE OF MINNESOTA
IN COURT OF APPEALS
Eunice Menk, as Trustee for the next-of-kin
of Muriel Cambronne, Deceased,
County of Cottonwood,
Filed May 25, 1999
Cottonwood County District Court
File No. C89801
Jay T. Squires, Joseph J. Langel, Ratwik, Roszak & Maloney, P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for appellant)
Kenneth R. White, Farrish, Johnson & Maschka, Union Square Business Center, 201 North Broad Street, Mankato, MN 56002-0550 (for respondent Cambronne)
Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Shumaker, Judge.
In an appeal from summary judgment, Cottonwood County contends it is entitled to the protection of vicarious official immunity for its employee's decision not to provide traffic control while blowing snow. County employees have the discretion to call for traffic control assistance and the decision not to call is protected by official immunity, which vicariously extends to protect the county. We reverse.
Donald and Muriel Cambronne were driving west on Cottonwood County State Aid Highway 10 on a January evening. David Teichroew, a county employee, was blowing snow from the highway shoulder. Teichroew's snowblower was travelling east on the westbound shoulder. Seeing the Cambronne car approach, Teichroew moved the snowblower further onto the shoulder and stopped. Part of the snowblower remained on the roadway. Teichroew did not have time to move the snowblower to the other side of the road. Confused by the light configuration, Donald Cambronne steered his car to the shoulder and drove directly into the front of the snowblower. Muriel Cambronne died and Donald Cambronne was seriously injured in the collision.
Eunice Menk, trustee for the next-of-kin of Muriel Cambronne, sued Cottonwood County and Donald Cambronne for negligence. The county asserted a cross-claim against Donald Cambronne, and Donald Cambronne filed a counterclaim against Cottonwood County. The county moved for summary judgment, asserting statutory and common law official immunity. The district court denied the motion, and the county appeals the issue of official immunity only.
Whether immunity applies is a legal question, which we review de novo. Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998). The party asserting immunity has the burden of demonstrating facts showing it is entitled to immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). In reviewing a denial of summary judgment based on a claim of immunity, this court presumes the truth of the facts alleged by the nonmoving party. Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997).
The starting point for any analysis of an immunity question is the identification of "the precise governmental conduct at issue." Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 415 (Minn. 1996). Menk's amended complaint and Cambronne's counterclaim establish that the challenged conduct is the county's allegedly negligent failure to take appropriate steps to warn motorists of the danger presented by the presence of the snowblower on the roadway. We then analyze whether official immunity applies to these acts and, when a claimant alleges that the acts are willful and malicious, we further analyze whether any applicable immunity has been forfeited through willfulness and malice. See Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997), review denied (Minn. May 20, 1997). Cambronne argues both that the acts were not protected by immunity and that, even if they were, the immunity was lost because the conduct was willful and malicious.
Official immunity protects a public official's discretionary decisions, but does not protect the official's "ministerial duties," that is, duties that are "absolute, certain or imperative." Watson, 553 N.W.2d at 414 (citation omitted). Teichroew testified that he had the discretion to call for police or highway patrol assistance to direct traffic or to personally direct traffic, when he believed circumstances warranted assistance. Earlier that evening he had called for assistance to direct traffic around a separate curved roadway area. Teichroew and the county dispatcher testified that calls for assistance were rare. Nevertheless, because it was within his discretion to call for traffic control assistance, Teichroew's decision not to call was discretionary.
This analysis is consistent with a previous decision in which we determined that immunity applies to actions of a snowplow operator. See In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543 (Minn. App. 1997), review denied (Minn. June 26, 1997). In Alexandria, official immunity protected a snowplow operator because his duties required him "to assess the existing conditions and rely on his judgment to determine the best time and manner for plowing." Id. at 549. The snowplowing "decisions involved sufficient discretion to fall within the protection of official immunity." Id. Snow removal activities are inherently hazardous and snow removal equipment operators must be allowed discretion to choose the best manner to complete the task.
Cambronne's secondary argument is that any immunity that applies to the snow removal is lost because Teichroew's actions involved "malice." "Malice" is defined as "the intentional doing of a wrongful act without legal justification or excuse, or * * * the willful violation of a known right." Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (citations omitted). The question of malice is an "objective inquiry into the legal reasonableness of an official's actions." State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). An official's actions are legally unreasonable if the official commits those acts while having reason to believe they are prohibited. Davis, 559 N.W.2d at 123.
We can identify no "known right" of traffic control assistance when a county uses a snowblower. Minnesota provides a Field Manual on Temporary Traffic Control, which is designed to provide for the safe and efficient movement of traffic around a location when the normal function of the roadway is temporarily suspended. But even assuming a temporary suspension of the roadway function when the snowblower is on the roadway, the Field Manual states that its provisions are not legal requirements and are not to be substituted for engineering judgment. See Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, 274 (Minn. App. 1996) (manual's deference to engineering judgment in installing traffic control devices demonstrates discretionary decision protected by official immunity), review denied (Minn. Sept. 20, 1996).
Cambronne also argues that Teichroew's decision to operate the snowblower in the direction of oncoming traffic was an intentionally wrongful act without legal justification. We note that the record does not demonstrate that this argument was adequately raised in the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (issues not raised in district court cannot be raised on appeal). But even if the argument had been properly raised, it would not change our analysis. The general rule that "vehicle[s] shall be driven upon the right half of the roadway," Minn. Stat. § 169.18, subd. 1 (1996), does "not apply to persons, motor vehicles, and other equipment while actually engaged in work upon the highway." Minn. Stat. § 169.03, subd. 6(a) (1996). Teichroew's supervisor testified that the snowblower operators had the discretion to drive the snowblowers either with or against traffic, according to their individual assessment of which direction was safer under the circumstances. See Alexandria, 561 N.W.2d at 549. Teichroew's actions were not prohibited and, thus, the immunity is not forfeited because of willfulness and malice.
Our final question is whether Teichroew's official immunity extends to his employer, Cottonwood County. Vicarious official immunity may apply to government employers when their employees have official immunity. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998). The decision of whether to grant a governmental employer vicarious official immunity is generally considered a policy question. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992). The supreme court has repeatedly held, however, that the failure to extend vicarious official immunity to an employer would defeat the purpose of official immunity. See, e.g., Watson, 553 N.W.2d at 415; Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993); Pletan, 494 N.W.2d at 42. The employer may be protected by vicarious official immunity even when the employee in question is not named as a defendant in the suit. Wiederholt, 581 N.W.2d at 316-17.
Public policy favors the application of vicarious official immunity in this case. The innumerable variants of traffic and weather conditions encountered by a snow removal worker require reliance on the worker's individual judgment of how to best remove snow under the particular circumstances. Refusal to extend official immunity to the county would "chill" the county's ability to permit snow removal workers to exercise the discretion necessary to safely and efficiently remove snow and ice from the public roadways. Cf. Ireland, 552 N.W.2d at 272 (vicarious immunity should apply if denial of immunity would "chill" official's exercise of independent judgment). Teichroew's official immunity vicariously extends to protect the county.