This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994) State of Minnesota in Court of Appeals C1-96-68, C7-96-91 Duane P. Norgren, et al., Respondents (C1-96-68), Appellants (C7-96-91), vs. Virgil Winter, Respondent, O-Aces, Inc., d/b/a O-Aces, et al., Respondents, CJM of Waite Park, Inc., d/b/a/ Friend's Bar and Restaurant, et al., Respondents, Stearns County Sheriff's Department, et al., Appellants (C1-96-68), Respondents (C7-96-91). Filed June 25, 1996 Affirmed in Part and Reversed in Part Parker, Judge Stearns County District Court File No. C9-95-992 Jack L. Vatland, Stephen S. Eckman, Eckman, Strandness & Egan, 501B Butler Square, 100 North Sixth Street, Minneapolis, MN 55403-1592 (for respondents/appellants Duane P. Norgren, et al.) Wilbur W. Fluegel, Wentzel & Fluegel, 701 Fourth Avenue South, Suite 1200, Minneapolis, MN 55415 (of counsel for respondents/appellants Duane P. Norgren, et al.) Frank J. Rajkowski, Rajkowski & Hansmeier, Ltd., 11 Seventh Avenue North, St. Cloud, MN 56302 (for respondent Virgil Winter) Bryon M. Peterson, Timothy W. Waldeck, Foster & Waldeck, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondents O- Aces, et al.) John D. Sens, Wintroub, Rinden, Sens & McCreary, 801 Nicollet Mall, 1910 Midwest Plaza West, Minneapolis, MN 55402 Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schumacher, Judge. Unpublished Opinion PARKER, Judge (Hon. Richard J. Ahles, District Court Trial Judge) Appellant Duane P. Norgren challenges a district court grant of summary judgment in favor of CJM of Waite Park, Inc., d/b/a Friend's Bar and Restaurant. Concluding that Friend's Bar did not illegally serve alcohol to respondent Virgil Winter in violation of Minn. Stat. 𨶬A.502, the trial judge determined that there were no genuine issues of material fact as to Friend's liability, but denied respondent O'Aces, Inc.'s motion for summary judgment. By notice of review, O'Aces appeals the denial of its motion. Appellant/respondent Sheriff James Kostreba and Stearns County challenge the district court's denial of their motion for summary judgment. Concluding that Sheriff Kostreba and Stearns County were not entitled to official or discretionary immunity, the trial judge denied their motions for summary judgment. We affirm in part and reverse in part. Decision Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. Summary judgment is inappropriate if reasonable people could draw different factual conclusions from the evidence presented. Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633 (Minn. 1978). On appeal from summary judgment, we ask ``whether there are any genuine issues of material fact'' and ``whether the lower courts erred in their application of the law.'' State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). ``[T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.'' Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Whether the acts of a public official ``are a discretionary function is a legal question ***.'' Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989). An appellate court need not, therefore, give deference to the conclusions of the court below. Id.; see also A. J. Chromy Constr. Co. v. Commercial Mechanical Servs., Inc., 260 N.W.2d 579, 582 (Minn. 1977) (conclusions of law do not bind an appellate court). 1. Norgren argues that the record supports a finding that a genuine issue of material fact exists as to whether Virgil Winter was intoxicated upon arrival at Friend's Bar. He contends that eyewitness and expert testimony presents a fact question as to whether Winter was served at Friend's Bar in violation of Minn. Stat. §𨶬A.502, .801 (1994). No person may sell, give, furnish, or in any way procure for another alcoholic beverages for the use of an obviously intoxicated person. Minn. Stat. 𨶬A.502. [A] person injured in person, property, or means of support, or who incurs other pecuniary loss by an intoxicated person or by the intoxication of another person, has a right of action in the person's own name for all damages sustained against a person who caused the intoxication of that person by illegally selling alcoholic beverages. Minn. Stat. 𨶬A.801. Norgren argues that the trial judge erred in granting summary judgment in favor of Friend's Bar because he improperly weighed the evidence and resolved fact issues that should have been left to a jury. The Minnesota Supreme Court defined the ``obvious intoxication'' standard as follows: [T]here must be such outward manifestation of intoxication that a person using *** reasonable powers of observation can see or should see that such person has become intoxicated. Strand v. Village of Watson, 245 Minn. 414, 422, 72 N.W.2d 609, 615 (1955). ``Although a blood test may be admitted to assist the trier of fact in determining whether the buyer was obviously intoxicated, the test is insufficient in and of itself to establish a prima facie case of obvious intoxication.'' Gutwein v. Edwards, 419 N.W.2d 809, 811-12 (Minn. App. 1988) (holding that appellant's .22 blood-alcohol level, his length of time at the bar, his erratic driving, and the circumstances surrounding his accident created at least a minimal fact question). There must be additional evidence from which it could be reasonably inferred that an individual was obviously intoxicated. Id. at 812 (citing Strand, 245 Minn. at 422, 72 N.W.2d at 616). Circumstantial evidence is sufficient to create a fact question regarding obvious intoxication, even though there is no direct evidence or witness testimony that the patron was obviously intoxicated when he was sold liquor. Larson v. Carchedi, 419 N.W.2d 132, 134 (Minn. App. 1988) (holding that patron's admission to consuming a large amount of alcohol, admission that he drank at numerous locations, erratic driving, and blood-alcohol level of .17 provided adequate direct and circumstantial evidence to create a fact question). The totality of the direct and circumstantial evidence advanced in opposition to the motion must be viewed as a whole to determine whether there are questions of material fact upon which a trial must be granted. See id. at 136. Distinguishing this case from Gutwein and Larson, the trial judge concluded that the circumstances on the record did not rise to the level of a ``minimal fact question'' and that there was eyewitness testimony to support Friend's Bar's argument that when Winter began to exhibit obvious signs of intoxication, the bartender immediately stopped serving him. On review of the statutory scheme, the trial judge noted that there would have to be evidence that Winter was served after exhibiting obvious signs of intoxication to support a claim. Absent evidence to the contrary, the trial judge concluded that no genuine issue of material fact existed as to Friend's liability under the Dram Shop Act and granted Friend's Bar's motion for summary judgment. We conclude that the trial judge's application of the shorthand phrase ``obvious intoxication'' was inaccurate. The supreme court has interpreted the statute to apply where a person using reasonable powers of observation ``can see or should see'' that someone has become intoxicated. See Gutwein, 419 N.W.2d at 811-12. To hold that the totality of the direct and circumstantial evidence on the record presented by both movant and opponent does not present disputed issues of fact appears to have involved a weighing of the evidence. There is testimony that Winter's wife could perceive that he had been drinking. Additional testimony by people at Friend's Bar suggests that Winter was not only a ``regular,'' but also that many people knew him. Expert testimony on the retrograde analysis of Winter's blood alcohol level was specified as being only as to the time of the accident; while there is disputed evidence as to whether Winter drank in between his stops, that same expert formulated an opinion as to Winter's condition at the time of his entrance into Friend's Bar. Viewing the evidence in a light most favorable to Norgren, we conclude that the trial judge erred in granting Friend's Bar's motion for summary judgment. 2. Stearns County and Sheriff Kostreba argue that the district court erred in failing to grant their motions for summary judgment based on either official or discretionary immunity. They contend that Kostreba's decision to park ahead of the Norgren vehicles was an exercise of discretion, not merely a ministerial task, and was thus protected by official immunity. They claim further that because Sheriff Kostreba did not violate any policy in deciding how to park his car, he cannot be held to have been negligent in rendering assistance to Norgren. In the alternative, Stearns County and Sheriff Kostreba argue that an officer's decision to assist stranded motorists is a valuable public service and thus must be protected by discretionary immunity. Public officials have the burden of proving that their actions are entitled to immunity. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 n.6 (Minn. 1988). The doctrine of official immunity provides: [A] public official charged by law with duties which call for the exercise of his [or her] judgement or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong. Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976) ). ``Official immunity involves the kind of discretion which is exercised on an operational rather than a policymaking level, and it requires something more than the performance of `ministerial' duties.'' Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992). A duty is ministerial (and unprotected) ``'when it is absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.''' Elwood, 423 N.W.2d at 677 (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W.2d 165, 167 (1937) ). Generally, when police officers exercise official duties, they are considered ``discretionary'' rather than ``ministerial'' officers and are therefore granted immunity. Leonzal v. Grogan, 516 N.W.2d 210, 213 (Minn. App. 1994), review denied (Minn. July 27, 1994). The determination of whether a particular officer's conduct merits immunity is made on a case-by-case basis. Duellman v. Erwin, 522 N.W.2d 377, 379 (Minn. App. 1994), review denied (Minn. Dec. 20, 1994). However, the fact that some judgment is exercised will not necessarily shield an officer's conduct under the doctrine of official immunity. Elwood, 423 N.W.2d at 677. Furthermore, an officer's action can be considered willful or malicious when that officer intentionally commits an act which the officer has reason to believe is wrong at the time he or she acts. Maras v. City of Brainerd, 502 N.W.2d 69, 77 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993). This determination hinges on whether the individual intentionally commits an act that the individual has reason to believe is prohibited. Rico v. State, 472 N.W.2d 100, 108 (Minn. 1991). Moreover, resolution of this issue presents a fact question for the jury. Maras, 502 N.W.2d at 77. As an exception to the general rule of governmental liability, discretionary immunity must be narrowly construed. Koelln v. Nexus Residential Treatment Facility, 494 N.W.2d 914, 919 (Minn. App. 1993), review denied (Minn. Mar. 22, 1993). ``While almost every governmental act involves some measure of discretion, courts have distinguished between `conduct at a planning level (protected) and conduct at an operational level (unprotected).''' McEwen v. Burlington N. R.R. Co., 494 N.W.2d 313, 316 (Minn. App. 1993) (quoting Nusbaum, 422 N.W.2d at 719), review denied (Minn. Feb. 25, 1993). ``A discretionary act [for which the governmental entity would be immune from liability] is one which requires a balancing of complex and competing factors at the planning, rather than operational, stage of development.'' Ostendorf v. Kenyon, 347 N.W.2d 834 (Minn. App. 1984). Immunity will not extend to professional judgment that does not involve a balancing of policy objectives. McEwen, 494 N.W.2d at 317 (citing Nusbaum, 422 N.W.2d at 722). To establish discretionary immunity, the governmental entity must produce ``evidence that the conduct was of a policy-making nature involving social, political or economical consideration.'' Id. The trial judge concluded that Sheriff Kostreba's decision to assist the Norgrens and park in front of the vehicles did not involve a policy- making function and therefore was not an action protected by official immunity. The trial court also determined that whether Sheriff Kostreba acted willfully or maliciously presented a disputed issue of fact. As a matter of law, the trial court concluded that neither Sheriff Kostreba nor Stearns County was entitled to discretionary immunity. We cannot agree. While parking forward of the cars might provide evidence of a violation of a professional standard, showing possible negligence, Sheriff Kostreba's decision in this case cannot be said to have been a causative factor in the accident. This court recently decided the factually similar case of Duellman v. Erwin, 522 N.W.2d 377 (Minn. App. 1994), review denied (Minn. Dec. 20, 1994). In Duellman, this court analyzed a police officer's decision to return to the scene of a car in a ditch after responding to a domestic call and the officer's decision to park his car in a particular location upon returning to the scene. Id. at 380. This court found the officer's decision to return to the scene to be discretionary, but found the decision to park his car in a certain manner to be ministerial because it ``did not require him to weigh a multitude of factors or exercise judgment under trying circumstances.'' Id. Concluding that it was the parking of the vehicle that involved negligent conduct, this court determined that the officer was not protected by immunity. Id. On review of the record before us, the circumstances in this instance appear distinguishable from Duellman. Despite the absence of a ruling by the trial judge on causation, the evidence produced is insufficient to support a finding of causative negligence. The testimony on the record is that Winter fell asleep at the wheel, immediately prior to the accident. Because of Winter's unconscious condition, he would not have been able to have seen the red lights on Sheriff Kostreba's car whether it was parked in front of or at the rear of the Norgren vehicles. We conclude, therefore, that absent a showing of causative negligence, Sheriff Kostreba and Stearns County were entitled to summary judgment. 3. O'Aces asserts by notice of review that the trial court erred in failing to grant its motion for summary judgment. O'Aces argues that no admissible direct or circumstantial evidence was presented to support a finding that Winter was served anything other than soda while on the premises. O'Aces contends that Winter's testimony is not credible because he was not competent to testify as to what he drank at the bar. Based on the totality of the circumstances, O'Aces argues that no genuine issues of material fact exist and that any other facts are immaterial because an element of a claim has not been established. The trial court noted that Winter testified that he had consumed alcoholic beverages at O'Aces, apparently the last bar visited by him. On review of Winter's estimated .29 blood alcohol level at the time of the accident, however, the trial court concluded that a reasonable inference, and thus a fact question, existed as to whether Winter drank alcohol while at O'Aces. The district court also noted that Winter's recollection of the events of the day was accurate. Because the credibility of Winter's testimony and the likelihood that events happened as he testified at his deposition were questions for a jury, the trial court denied O'Aces' motion for summary judgment. O'Aces contends that all of the evidence presented against its motion was inadmissible, yet O'Aces failed to object to the validity of any of the witnesses' testimony prior to the trial judge's determination. Viewing the evidence in the light most favorable to the opponent of the motion, we cannot say that the trial court erred in concluding that a genuine issue of material fact exists as to whether a person using reasonable powers of observation could or should have seen Winter's intoxicated condition upon his entry into the O'Aces Bar less than an hour before the accident. We conclude that denial of O'Aces' motion for summary judgment was proper. Affirmed in part and reversed in part.