This opinion will be unpublished and

may not be cited except as provided by

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






Robert Anderson,

Respondent (C8-99-387),


James Wilson, et al.,


Mathew Gifford,

Respondent (CX-99-388),


City of Brainerd,


Burlington Northern Railroad Company, et al.,



Filed September 14, 1999


Anderson, Judge

Crow Wing District Court

File Nos. CX-97-2489, C7-98-189


Jeffrey P. Oistad, Meshbesher & Spence, Ltd., 510 U.S. Bank Plaza, 1015 West St. Germain Street, St. Cloud, MN 56301 (for respondent Robert Anderson)

James J. Kirshbaum, P.O. Box 47540, Minneapolis, MN 55447; and

Kevin F. Gray, Lotte Rose Hanson, 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302 (for respondent Matthew Gifford)

Leonard J. Schweich, Askegaard, Robinson, Murphy & Schweich, P.A., 206 North Seventh Street, P.O. Box 826, Brainerd, MN 56401, and

Pierre N. Regnier, Jardine, Logan & O’Brien, 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant City of Brainerd)

Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schultz, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellant City of Brainerd (city) appeals from the trial court’s order denying its motion for summary judgment. On appeal, the city argues it is entitled to statutory immunity and vicarious official immunity from the lawsuits brought by respondents Robert Anderson and Matthew Gifford (respondents). We reverse the trial court’s decision and grant summary judgment for the City of Brainerd.


On July 8, 1994, two vehicles collided on Norwood Street in Brainerd, east of the point where Southeast Norwood Street intersects with Southeast Eleventh Street. Respondent Anderson was a passenger in the vehicle driven by Respondent Gifford. At the time of the collision, a hill was located on Norwood Street, east of where it intersects with Southeast Eleventh Street. Norwood Street also curves slightly to the south between the intersections of Southeast Eleventh Street and Southeast Twelfth Street. Although the speed limit is 30 miles per hour, there were no warning signs placed near the hill or the curve in the roadway. Respondents filed separate complaints against, among others, the City of Brainerd. Both allege the city negligently failed to construct, maintain, and sign the roadway where the accident occurred.

Ultimately, safety of the roadways is the responsibility of the city council. The city council is also responsible for final decisions on signage. But the Brainerd city engineer testified that he is responsible for designing new roads as well as improving existing ones. Generally, when complaints about the roads are made, the city engineer investigates and makes a recommendation to the city council. For example, the city engineer receives accident reports annually and investigates areas with unusually high accident rates. The city engineer also conducts a general sight inventory of all roads every few years, although on no specific schedule. The city engineer testified he had not made any recommendations for traffic control devices on Norwood Street and had no reason to be specifically concerned about the area where the accident occurred.

A street reconstruction program for the segment of Norwood Street between Eleventh and Twelfth Streets began in 1987 and was designed to last over a period of seven or eight years. The Norwood Street project was initially scheduled for 1990, but was not completed until 1995. The reconstruction resulted in a reduction in the vertical grade on Norwood Street and elimination of the hill. The city engineer testified that the improvements did not occur until 1995 due to budgetary concerns and attempts to group projects together in the same geographic location.

The city filed a notice and motion for summary judgment arguing it was entitled to statutory immunity and vicarious official immunity. The trial court declined to grant summary judgment under either theory.


Although denial of a motion for summary judgment is not ordinarily appealable, an exception arises when the order denies summary judgment based on statutory or official immunity. Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996). This exception is based on the concern that immunity from suit is effectively lost if a case is erroneously permitted to go to trial. Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn. 1986). On appeal from summary judgment, this court considers whether there are any genuine issues of material fact and whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The application of immunity is a question of law, which this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

In their lawsuits, respondents essentially claim that the city failed to timely implement the reconstruction plan for Norwood Street and that the city failed to place traffic control signals or signs on Norwood Street warning of the hill and the sharp curve after the hill. The city alleges it is entitled to vicarious official immunity from the lawsuits based on the official immunity of the city engineer. Official immunity protects public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties. Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988). Generally, if official immunity protects a government employee from suit, the government entity will not be liable for the employee’s torts. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992). The employer is protected even if the employee is not named as a defendant in the lawsuit. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 317 (Minn. 1998).

An official’s acts are protected by official immunity if they are discretionary, as opposed to ministerial. Ireland v. Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 272 (Minn. App. 1996), review denied (Minn. Sept. 20, 1996). An official’s duty is ministerial when it is "absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts." Id. (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937)). Acts that are discretionary require something more than the performance of ministerial duties. Watson v. Metropolitan Transit Comm’n, 553 N.W.2d 406, 414 (Minn. 1996). However, official immunity does not apply if the official committed a willful or malicious wrong. Elwood, 423 N.W.2d at 679.[1]

1. The reconstruction plan

The city argues it is entitled to vicarious official immunity from respondents’ allegation that it failed to timely implement the reconstruction plan. We agree. The record reflects: (1) the city engineer made decisions regarding when to implement the reconstruction based on funding and geographic location; (2) there is no evidence that the city council made these implementation decisions; and (3) there is no evidence the city engineer made his decisions based on a rigid or specific policy. Cf. Wiederholt, 581 N.W.2d at 316 (holding official immunity did not apply where sidewalk inspector was required to "immediately repair" broken sidewalk slabs, but did not comply with the policy). The city engineer made discretionary decisions based on various fiscal and geographic considerations, and his decision certainly was not "absolute, certain, and imperative." The city engineer is entitled to official immunity, and as a result, the city is immune from suit through vicarious official immunity. See In re Alexandria Accident, 561 N.W.2d 543, 549 (Minn. App. 1997) (recognizing vicarious official immunity where snow plow operator had to assess existing conditions and rely on his judgment to determine best time and manner for plowing), review denied (Minn. June 26, 1996).[2]

2. Traffic control devices

Appellant also claims it is entitled to vicarious official immunity from respondents’ allegation it negligently failed to place a warning sign or traffic control signal on Norwood Street. We agree. The trial court found no vicarious official immunity because "most of all the final decisions regarding placement of traffic control devices and all final decisions regarding placement of stop signs were made by the Brainerd City Council * * * ." While the record reflects that final decisions about signage were made by the city council, the city engineer was responsible for recommending placement of such traffic control devices. The Minnesota Manual on Uniform Traffic Control Devices (MMUTCD) outlines the city engineer’s duties. The MMUTCD states it is "not a substitute for engineering judgment" and that "[q]ualified engineers are needed to exercise the engineering judgment inherent in the selection of traffic control devices." Minnesota Dep’t of Transp., Minnesota Manual on Uniform Traffic Control Devices, 1A-5 (1991).

The city engineer has discretion regarding whether or not to recommend traffic control devices for a certain area. The MMUTCD states "[t]ypical locations and hazards that may warrant the use of warning signs are: 1. Changes in horizontal alignment * * * 7. Grades." Id. at 2C-1. The word "may" is defined in the MMUTCD as a permissive condition and not a requirement. The decision to install warning signs was discretionary, not ministerial, and the city engineer is entitled to official immunity. See, e.g., Ireland, 552 N.W.2d at 274 (holding "shall" in the MMUTCD does not create ministerial duty and decision of traffic engineer not to install distance plaque was discretionary and entitled to official immunity). As a result, the city is entitled to vicarious official immunity.

Because we have made the determination of vicarious official immunity, there is no need to address appellant’s argument based on statutory immunity.[3] We reverse the trial court’s decision and grant summary judgment for the City of Brainerd.


[*] 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] Respondents allege no maliciousness or willfulness.

[2] We note that official immunity attaches vicariously when the nature of the conduct is within the confines of an assigned duty, as exemplified by the city engineer's actions. See S.W. v. Spring Lake Park Sch. Dist. No. 16, 592 N.W.2d 870, 877 (Minn. App. 1999) (declining to award vicarious official immunity to school district where employees were not acting within confines of assigned duties), review granted (Minn. July 28, 1999).

[3] We note that to insure statutory immunity, municipalities must carefully document their decision-making processes. See Nusbaum v. Blue Earth County, 422 N.W.2d 713, 719-20 (Minn. 1988) (applying statutory immunity exception where the decision involves balancing of policy considerations rather than merely professional or scientific judgment).