This opinion will be unpublished and

may not be cited except as provided by

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




Patricia A. Peterson,



Independent School District No. 704,


Filed July 20, 1999


Amundson, Judge

St. Louis County District Court

File No. C3-97-601842

Jon P. Erickson, Barna, Guzy & Steffen Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433 (for appellant)

Kay N. Hunt, Ehrich L. Koch, Sherri D. Ulland, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Halbrooks, Presiding Judge, Schumacher Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the grant of summary judgment, claiming that respondent was not entitled to statutory immunity for its alleged negligent hiring, training and supervision of its cheerleading advisor and vicarious official immunity for the decisions its cheerleading advisor made during cheerleading practice.


Appellant Patricia Peterson alleges that on September 7, 1995, she was injured as a result of an accident that occurred during cheerleading practice. At the time of the incident, Peterson was a junior at the high school and a member of the cheerleading squad. Ann Novitzke was the squad's advisor.

Novitzke was hired in June 1995, after being interviewed by the high school's principal, the previous cheerleading advisor, and two senior members of the cheerleading squad. The interview committee recommended to the school board that they hire Novitzke noting that she was "more knowledgeable" than any of the previous cheerleading advisors.

Novitzke's direct supervisor was also the school district's athletic director. He provided her with manuals on cheerleading maneuvers and safety. Novitzke also attended a cheerleading camp with members of the cheerleading squad. The camp was sponsored by national cheerleading professionals and Novitzke received a cheerleading coaching certificate for her participation. She also received a certificate for completion of a course on cheerleading rules and safety as required by the Minnesota State High School League.

At the time of the accident, the cheerleading squad was practicing a maneuver known as a "single liberty mount," which involves three bases and a flyer. Peterson was acting as a base catcher. The flyer takes a position on the shoulders of the bases and the three bases cradle catch the flyer when she dismounts. The squad had practiced the maneuver several times at a cheerleading camp and had performed it at one game that season. It appears that there were two mats available and the junior squad used one and the varsity squad used the other.

The accident occurred because the four members who were practicing the maneuver changed the count on which the flyer would dismount. It was common for the squad to change the count and Novitzke was not consulted about the change. The flyer dismounted on count two, instead of on count three as the girls had discussed, and the bases were not prepared to catch the flyer as she dismounted. While all four girls fell to the floor, the flyer landed with substantial impact on Peterson. Peterson's head struck the gym floor causing injury.


On appeal from summary judgment, we determine whether the district court erred in its application of the law and whether there are any genuine issues of material fact. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998). Because no genuine issues of material fact exist, we must only determine whether the trial court properly applied the law to the facts of this case.

Minnesota recognizes two types of immunity: statutory (discretionary function) immunity and official immunity. Janklow v. Minnesota Bd. of Exam'rs for Nursing Home Adm'rs, 552 N.W.2d 711, 715 (Minn. 1996). Statutory immunity was created legislatively and protects governmental entities, while the doctrine of official immunity derives from the common-law doctrine of sovereign immunity and protects public officials. Id.; Johnson v. State, 553 N.W.2d 40, 46 (Minn. 1996). The applicability of immunity is a question of law that is subject to de novo review. Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998).

The school district claims that it is immune from suit for its acts of hiring, training, and supervising Novitzke pursuant to Minn. Stat. § 466.03, subds. 1, 6 (commonly referred to as statutory immunity). The Minnesota Tort Claims Act imposes liability on municipalities for their torts subject to certain exceptions and limitations. School districts are included in the statute's definition of municipality. The school district bears the burden of showing that it is entitled to immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

Statutory immunity is interpreted narrowly and its application focuses on its underlying purpose, namely, to prevent courts from second-guessing policy decisions that are executive or legislative in nature, thereby preserving the separation of powers. Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996); Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 718 (Minn. 1988). Thus, in order to be immune from suit under Minn. Stat. § 466.03, subd. 6, the school district must establish that the conduct challenged by Peterson was public policy-making in nature and involved economic, political, or social considerations. S.W. v. Spring Lake Park School Dist. No. 16, 580 N.W.2d 19, 22 (Minn. 1998); see also Zank, 552 N.W.2d at 721 (the court must determine whether the challenged activity involved a balancing of policy objectives).

In determining whether the conduct in question was policy-making in nature and thus protected by statutory immunity, we assess whether the conduct occurred on a planning level and not simply on an operational level. S.W., 580 N.W.2d at 22 (quoting Nusbaum, 422 N.W.2d at 719). Generally, the mere implementation of policy is considered operational level conduct unprotected by statutory immunity. Rico v. State, 472 N.W.2d 100, 104 (Minn. 1991).

Decisions regarding the hiring, training, supervision and retention of employees have been found to be discretionary acts entitled to statutory immunity. See Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 413 (Minn. 1996) (holding that training of employees constitutes planning level conduct which is protected by statutory immunity); Oslin v. State, 543 N.W.2d 408, 416 (Minn. App. 1996) (determining that decisions regarding supervision and retention "were necessarily entwined in a layer of policy-making that exceeded the mere application of rules to facts"), review denied (Minn. April 1, 1996).

The decision to hire Novitzke required a consideration of the economic resources available to the school district, the high school's educational mission, the popularity of the cheerleading program, the program's needs, and the availability of a qualified candidate. In deciding what supervision Novitzke required, the school district evaluated and balanced the amount and quality of supervision that Novitzke required with the personnel and economic resources at its disposal. Generally, training employees, whether they are bus drivers or police officers, requires the balancing of financial and social considerations. Watson, 553 N.W.2d at 413. Furthermore, the school district had to consider its economic resources and the availability of personnel to train Novitzke in making its training decisions.

The school district did more than simply implement clearly established policies when it hired, trained, and supervised Novitzke, rather the school district engaged in a balancing of policy objectives. Therefore, we find that the school district is entitled to statutory immunity for its hiring, training and supervision of Novitzke.

The parties do not dispute that the cheerleaders successfully performed this maneuver on several occasions and that the accident only occurred as a result of the cheerleaders' independent decision to alter the maneuver. In order to reach the issue of vicarious official liability, there must be conduct or a decision by a public official to examine. See Rico, 472 N.W.2d at 106-07 (stating that official immunity protects conduct of a public official which requires the exercise of judgment or discretion unless the official is guilty of a willful or malicious wrong). Because we find that Novitzke was not involved in any way in the implementation or execution of the maneuver at the time of the accident, we need not address the additional vicarious official immunity issue.