This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Leanne LaFave, as Trustee for

Tonya LaFave, Holly LaFave, John LaFave and Jessica LaFave,

heirs and next-of-kin of Edward LaFave, deceased,



Frankfort Township,


Filed January 28, 1997


Forsberg, Judge


Wright County District Court

File No. CX-93-2482

John T. Buchman, Christopher J. Hoffer, Soucie, Buchman, Grover & Bolt, Ltd., 100 Anoka Office Center, 2150 Third Avenue North, Anoka, MN 55303 (for Appellant)

Bradley C. Warner, Jack D. Moore & Associates, Two Pine Tree Drive, St. Paul, MN 55112 (for Respondent)

Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Forsberg, Judge.



Appellants, the heirs of Edward LaFave, contest the district court's grant of summary judgment to respondent on the claims of negligent design, construction, and signage of 20th Street Northeast in Frankfort Township. Because Minn. Stat. § 541.051, subd. 1(a) (1992) bars appellants' claim for negligent construction and design of the road and because statutory immunity bars the claim for negligent signage, we affirm.


On October 12, 1993, after consuming alcohol, Edward LaFave drove his vehicle around a curve on 20th Street Northeast in Frankfort Township. Appellants contend that when Mr. LaFave reached a curve in the road, his truck drifted and the slope of the roadway pulled the truck off the pavement causing a single vehicle crash. Mr. LaFave died on October 22, 1993, as a result of the injuries sustained in the accident.

The facts indicate that respondent Frankfort Township owned, controlled, and maintained 20th Street Northeast, which was blacktopped to its current configuration in 1972. Although unmarked, the speed limit of the road at the time of the crash was 55 miles per hour. The township had not posted any warning signs for the curve. Over the years, the township received some complaints about the road in question.

Appellants served a complaint on respondent alleging the township's negligent design, construction, maintenance, and signage of 20th Street Northeast caused the injuries and death of Mr. LaFave. The district court denied summary judgment on some of appellants' claims, leaving them for trial, but granted summary judgment to respondent on the claims of negligent design and construction and negligent signage. Appellants seek review of the final partial summary judgment under Minn. R. Civ. App. P. 104.01.


On appeal from summary judgment, the appellate court determines whether the district court erred in its application of the law and whether any genuine issues of material fact remain. Minn. R. Civ. P. 56.03; State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). This court reviews legal questions de novo, Frost-Benco Elec. Ass'n v. Minn. Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984), but the nonmovant receives the benefit of any doubt regarding the existence of a genuine issue of material fact. Rathbun v. W.T. Grant Co., 300 Minn. 223, 230, 219 N.W.2d 641, 646 (1974).

I. Statute of Repose

A. Application of the Statute

Minn. Stat. § 541.051, subd. 1(a) provides:

Except where fraud is involved, no action by any person * * * to recover damages* * * for bodily injury or for wrongful death, arising out of the defective and unsafe condition of any improvement to real property, nor any action for contribution or indemnity for damages sustained on account of the injury, shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury or, in the case of an action for contribution or indemnity, accrual of the cause of action, nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.

(Emphasis added.)

Courts must use a "common sense" approach when interpreting whether something constitutes an improvement to real property under the statute. Williams v. Tweed, 520 N.W.2d 515, 518 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994) (citing Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn. 1977)). Minnesota courts have defined an "improvement to real property" as

a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.

Kloster-Madsen, Inc. v. Tafi's Inc., 303 Minn. 59, 63, 226 N.W.2d 603, 607 (1975) (quoting Webster's Third New International Dictionary 1138 (1971)). Other jurisdictions have recognized work performed on roadways as improvements to real property. See Billman v. Crown-Trygg Corp, 563 N.E.2d 903, 907 (Ill. 1990) (grading, paving, resurfacing, and constructing curbs, gutters and storm sewers deemed improvements to real property); Rosenberg v. Town of Bergan, 293 A.2d 662, 666 (N.J. 1972) (pavement of road bed deemed to be improvement to real property); Keeler v. Commonwealth of Penn. Dep't of Transp., 424 A.2d 614, 616 (Pa. 1981) (highway guardrails, lights, signs and directional signal deemed improvements to real property).

Based on the dictionary definition, the "common sense" analysis, and the authority of other jurisdictions, we conclude that a roadway is an improvement to real property under the statute. Because the roadway in question existed for more than ten years prior to the commencement of the claim, Minn. Stat. § 541.051, subd. 1(a) applies and bars the claim for negligent design and construction.

Appellants urge this court to apply Minn. Stat. § 541.07(6) (1992), which does not have the ten-year limitation. That section merely provides a two-year statute of limitations from the time of a plaintiff's injury for "damages caused by the establishment of a street or highway grade or a change in the originally established grade." See also Capital Supply Co. v. City of St. Paul, 316 N.W.2d 554, 554-55 (Minn. 1982) (two-year limitation in section 541.07(6) begins to run from the date plaintiff first suffers damage). Appellants contend that because section 541.07(6) is more specific to roadway claims than section 541.051, subdivision 1(a), and because they have brought a claim regarding the roadway grade, their claim for negligent design and construction of the roadway should also fall under section 541.07 (6). See Beck v. Groe, 245 Minn. 28, 70 N.W.2d 886 (Minn. 1955) (applying rule of construction that specific terms of statute covering given subject will prevail over general language of same or other statute that might otherwise prove controlling).

Appellants err in their construction of the statutes. While section 541.07(6) applies to claims involving the grading of roadways, it does not apply to all claims regarding roadways. There is no authority for extending the limitations period on appellants' claims merely because section 541.07(6) applies to one of the claims. The district court properly determined that the limitations period on the claim for negligent design and construction of the road is governed by section 541.051, subdivision 1(a), while the claim regarding design and construction of a road grade or a change in a grade fell under section 541.07(6). See Capitol Supply Co., 316 N.W.2d at 554-55 (applying these two statutes to two separate claims, one for negligent design and construction of a storm sewer and one for negligent change in the grade of a road).

B. Tolling of the Statute

Even if Minn. Stat. § 541.051, subd. 1(a) applies, appellants argue that the statute has been tolled by respondent's notice of the dangerous condition. The ten-year limit may be tolled if the negligent party fraudulently prevented discovery of a defective or unsafe condition within the time limit. Wittmer v. Ruegemer, 419 N.W.2d 493, 497 (Minn. 1988). Appellants offered no evidence of fraud. Appellants merely argue that respondent knew of the dangerous condition and failed to do anything. Even if true, these allegations do not provide a basis for tolling the statute.

II. Statutory Immunity

State law immunizes governmental entities from "[a]ny claim based upon the performance or failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Minn. Stat. § 466.03, subd. 6 (1996). Statutory or "discretionary" immunity, however, does not protect all decisions made by government agents. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 (Minn. 1988). The courts distinguish between "operational decisions" and "planning decisions." Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 412 (Minn. 1996) (citing Nusbaum, 422 N.W.2d at 719). Planning decisions involve questions of public policy and receive protection as discretionary decisions, while operational decisions relate to the day-to-day operation of government and do not receive protection. Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994).

The critical inquiry for the court is whether the conduct involved a balancing of policy objectives. Zank v. Larsen, 552 N.W.2d 719, 721 (Minn. 1996) (citing Nusbaum, 422 N.W.2d at 722). Discretionary immunity protects the government only when it can produce evidence that its conduct was of a policy-making nature involving social, political, or economic considerations, rather than merely professional or scientific judgments. Id. (quoting Steinke, 525 N.W.2d at 175).

Appellants contend respondent's failure to post warning signs at the curve in question caused Mr. LaFave's injuries. At the time of the accident, one sign indicated the upcoming curve on 20th Street Northeast, but no other warning signs or speed advisories existed. Appellants argue that the failure to provide warning signs was not a planning decision.

Appellants support their argument by pointing to the supreme court's decision in Nusbaum, 422 N.W.2d at 722-23. In that case, the court reversed summary judgment for the government on a claim for the improper placement of a sign ending a speed limit zone and on a claim for the failure to recommend placement of warning signs. Id. The court carefully examined whether the decisions involved the implementation of policy decisions rather than the balancing of policy objectives and concluded that the government had not shown that those specific acts involved discretionary decisionmaking. See id.

In Steinke, however, the supreme court recognized that

[t]he government's initial decision, whether to place signs warning the public of potential hazards, is protected as a discretionary function because it involves consideration of several policy factors.

525 N.W.2d at 175-76. The court concluded that the decision to place signs only along certain roadways involved more than merely professional or scientific judgment. Id. The decision involved political, social, and economic considerations and the government needed to consider safety issues, financial burdens, and possible legal consequences. Id.

In the instant case, the decision not to post advisory signs on the curve in question involved protected policy considerations. The township participated in a federal program designed to bring the township roads into compliance with the Manual on Uniform Traffic Control Devices. Under the terms of the manual, such advisory signs were discretionary. Beyond its participation in the signage program, the facts also indicate the township considered the conditions of its roads on several occasions. Although the township board never made a definite decision not to post warning signs on the road in question, the board had to weigh safety concerns, financial concerns, and political concerns, as well as legal implications before it could decide to post a warning sign on the curve in question. The failure to post signs here was not a matter of professional or scientific judgment, nor was it a mere implementation of a policy decision. Therefore, the district court properly determined that the township board's failure to post warning signs was a discretionary decision protected by statutory immunity.


[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.