This opinion will be unpublished and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


Sandra J. DeMars, f/k/a Sandra J. Swapinski,
as Trustee for the heirs and next-of-kin of
Tricia M. Swapinski, deceased,


David Bergman,

Independent School District No. 709,

Duluth Transit Authority, et al.,

Filed November 23, 1999
Short, Judge

St. Louis County District Court
File No. C597601034

Cortney S. LaNeave, Kermit Fruechte, Hunegs, Stone, Koenig, LeNeave & Kvas, 1650 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for respondent)

Tim A. Strom, Hanft, Fride, P.A., 1000 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802 (for appellants)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

On December 13, 1996, sixth-grader Tricia Swapinski was struck and killed by an oncoming truck after exiting a bus used to transport children home when they stay late at school. Duluth Transit Authority ("DTA") owned the bus, and ATE Management, Inc., a wholly owned subsidiary of Ryder/ATE ("ATE" referring to both) operated it. The bus transported students under a contract between DTA and Independent School District No. 709 ("ISD 709"). Swapinski’s mother, Sandra DeMars ("DeMars"), brought a negligence lawsuit against the driver, ISD 709, DTA, and ATE. The trial court granted summary judgment to ISD 709. DTA and ATE appeal the trial court’s denial of their motions for summary judgment on statutory and official immunity grounds. We affirm.


On appeal from denial of summary judgment, we determine whether any genuine issues of material fact exist and whether the trial court erred in its application of the law. See Minn. R. Civ. P. 56.03 (setting trial court standard for summary judgment); Watson v. Metropolitan Transit Comm’n, 553 N.W.2d 406, 411 (Minn. 1996) (holding denial of summary judgment is immediately appealable when based on governmental immunity). Governmental immunity from tort liability presents a question of law, which we review de novo. Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998); Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

DTA argues it qualifies for statutory immunity because, by attacking its implementation of ISD 709’s policies, DeMars is essentially attacking the policies themselves. See Pletan v. Gaines, 494 N.W.2d 38, 44 (Minn. 1992) (noting statutory immunity provides little protection if it does not extend to consequences of policy); In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 548 (Minn. App. 1997) (holding statutory immunity protects actions of agent implementing policy if claim of negligence attacks policy itself). However, DTA does not qualify for statutory immunity as an agent of ISD 709 because the contract clearly establishes DTA is an independent contractor. See Minn. Stat. § 466.01, subd. 6 (1996) (excluding independent contractors from definition of "agent" for purposes of statutory immunity).

Even if DTA were not an independent contractor, it did not meet its burden of establishing facts showing it is entitled to statutory immunity. See Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997) (holding party asserting immunity bears burden of demonstrating facts showing immunity applies). DTA failed to show it made planning decisions beyond deciding to contract with ISD 709 and ATE. The record establishes that ISD 709 made policy decisions on training and routing, and ATE was responsible for implementation. Because there is a factual dispute as to whether DTA created or implemented policy, the trial court was correct to deny summary judgment. See Baker v. Chaplin, 517 N.W.2d 911, 917 (Minn. 1994) (holding genuine dispute as to underlying facts necessary to determine qualified immunity precludes summary judgment); Sota Foods, Inc. v. Larson-Peterson & Assocs., Inc, 497 N.W.2d 276, 281-82 (Minn. App. 1993) (holding no summary judgment when parties dispute essential material facts needed to resolve issue of statutory immunity).

ATE claims statutory immunity for implementing policy decisions made by DTA. See Alexandria Accident, 561 N.W.2d at 548 (protecting implementation of policy if claim of negligence actually attacks policy itself). Although the contract between DTA and ATE does not call ATE an independent contractor, our inquiry does not end there. The right to control the means and manner of performance is the most important factor in determining whether a party is an independent contractor. Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 676 (Minn. 1977).

The record shows: (1) the contract between DTA and ATE gives ATE the responsibility to "provide full and complete management"; (2) DTA can only discharge ATE for cause; and (3) DTA’s control of ATE’s means and manner of performance is limited. Because DeMars presented facts showing ATE controls the means and manner of its performance, ATE is an independent contractor not eligible for statutory immunity. See Minn. Stat. § 466.01, subd. 6 (excluding independent contractors from definition of "agent" for purposes of statutory immunity); Rehn, 557 N.W.2d at 333 (holding party seeking immunity bears burden of establishing facts showing it is entitled to immunity); W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998) (holding court reviewing summary judgment views evidence in light most favorable to non-moving party); Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997) (assuming truth of facts presented by party opposing immunity).

DTA and ATE also argue they are protected by official immunity. DTA does not qualify for official immunity because it acted as a board performing in its joint capacity. Janklow v. Minnesota Bd. of Exam’rs for Nursing Home Adm’rs, 552 N.W.2d 711, 716 (Minn. 1996) (holding official immunity applies to individual government actors, and does not protect board acting in its joint capacity). ATE is a corporation, not an individual government official; therefore, it does not qualify for official immunity. See Janklow, 552 N.W.2d at 716 (holding only individual government officials entitled to official immunity). Under these circumstances, the trial court properly declined to grant summary judgment to DTA and ATE on the grounds of immunity.