This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-1578

 

Simon Peter Norman,

Respondent,

 

vs.

 

Peggy Lee Thorson,

Respondent,

 

vs.

 

William Kevin Quinn, et al.,

Appellants.

 

Filed April 25, 2000

Affirmed
Foley, Judge^*

 

Hennepin County District Court

File No. PI 98-018367

 

Robert D. Boedigheimer, Peter J. Horejsi, McCloud & Boedigheimer, Southgate Office Plaza, Suite 201, 5001 West 80th St., Bloomington, MN  55437 (for respondent Norman); and

 

William M. Hart, Kenneth W. Dodge, Jennifer E. Ampulski, Meagher & Geer, 4200 Multifoods Tower, 33 South Sixth St., Minneapolis, MN  55402 (for respondent Thorson)

 

Heidi A. Schneider, Eric Hageman, Gartner, Bennett & Schupp, One Financial Plaza, Suite 2200, 120 South Sixth St., Minneapolis, MN  55402 (for appellants)

 

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Respondent Simon Norman brought personal injury actions against appellants William Quinn and the Metropolitan Airports Commission (MAC) and respondent Peggy Thorson.  Thorson cross-claimed against Quinn and MAC.  Quinn and MAC sought summary judgment claiming immunity.  The district court denied the motion and Quinn and MAC appeal claiming official immunity, statutory “discretionary” immunity, and snow-and-ice immunity.  We affirm.

FACTS

            While walking along the shoulder of Post Road, near the Minneapolis/St. Paul International Airport, Norman was struck by a snowplow.  The plow was mounted on a large tractor driven by Quinn, a MAC employee who was returning from a coffee break to resume plowing airport parking lots.  The plow knocked Norman into the road, where he was struck by a car driven by Thorson.

D E C I S I O N

            Denial of summary judgment based on governmental immunity is immediately appealable.  Watson by Hanson v. Metropolitan Transit Comm’n, 553 N.W.2d 406, 411 (Minn. 1996).  For purposes of tort liability, MAC is a municipality.  See Minn. Stat. §§ 473.603, subd. 1 (1996) (stating MAC is a public corporation); 466.01, subd. 1 (1996) (defining municipality to include public corporations); 466.02 (1996) (stating Minnesota municipalities generally liable for their torts and torts of their employees and agents acting in course of their employment). 

            Whether immunity applies is a legal question subject to de novo review.  Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998).  The party claiming immunity has the burden of demonstrating facts showing it is entitled to immunity.  Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). 

            Official immunity is a common-law doctrine protecting government officials “from suit for discretionary actions taken in the course of their official duties.”  Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998) (citations omitted).  It protects discretion in a broad sense, at the operational level, as distinguished from the narrower meaning applied in the context of statutory immunity, which protects discretion in terms of policymaking.  Watson, 553 N.W.2d at 414.

            Official immunity protects a public official’s discretionary decisions, but does not protect the official’s “ministerial duties.”  Id.  Ministerial duties are “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.”  Johnson v. State, 553 N.W.2d 40, 46 (Minn. 1996) (citation omitted).  Discretionary acts are those in which officials must exercise “judgment or discretion.”  Id.  (citation omitted). 

            Whether an act is discretionary or ministerial is a question of law for the court. Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 n.5 (Minn. 1999).  “Some degree of judgment or discretion will not necessarily confer [official] immunity on an official.” Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988) (citation omitted).

            In In re Alexandria Accident of Feb. 8, 1994, a snowplow clearing a highway created a whiteout that contributed to a serious accident.  561 N.W.2d 543, 545 (Minn. App. 1997).  We noted that the plow operator’s job required him “to assess the existing conditions and rely on his judgment to determine the best time and manner for plowing,” and found such decisions “involved sufficient discretion to fall within the protection of official immunity.”  Alexandria, 561 N.W.2d at 549.

            The record shows Quinn’s conduct involved no such discretion.  At the time of the accident, Quinn was (1) returning from his break, (2) driving on a public road, and (3) not engaged in snowplowing.  He was using the plow for transportation and was subject to the same rules of the road as all other drivers, including the duty of due care.

            Quinn’s task was ministerial, and he is not entitled to official immunity.  Because Quinn is not entitled to official immunity, there is no basis for applying vicarious official immunity to MAC.  See Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998) (noting government employers may be immune if their employees have official immunity).

            Appellants’ other theories for immunity are inapplicable to these facts.  Snow-and-ice immunity protects a municipality from claims “based on snow or ice conditions on any highway or public sidewalk.”  Minn. Stat. § 466.03, subd. 4 (1996).  Norman’s claim is not based on a snow or ice condition.  Cf. Alexandria, 561 N.W.2d at 549 (holding snow-and-ice immunity applied where plow clearing snow from highway created whiteout conditions that directly led to accident).

            Statutory discretionary immunity excepts public officials from liability for claims “based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”  Minn. Stat. § 466.03, subd. 6 (1996). Because Norman’s claim does not challenge a policy decision by Quinn or MAC, statutory discretionary immunity does not apply.  See Alexandria, 561 N.W.2d at 548 (recognizing statutory discretionary immunity protects actions of agent implementing policy if negligence claim attacks policy itself); Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988) (requiring government entity to show purportedly immune conduct involved balancing policy objectives).

            Affirmed.