This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2056     

 

Karen A. Morris,

Appellant,

 

vs.

 

North Memorial Health Care, et al.,

Defendants,

 

City of Robbinsdale, et al.,

Respondents.

 

 

Filed August 16, 2005

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. PI 03-16101

 

 

Ann L. Bottolene, Lundeen Law Offices, Minnehaha Professional Building, 3960 Minnehaha Avenue South, Minneapolis, MN 55406 (for appellant)

 

Paul D. Reuvers, Jason M. Hiveley, Iverson Reuvers, LLC, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondents)

 

 

            Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from the district court’s grant of summary judgment on appellant’s claims against a police officer and the city of Robbinsdale, appellant argues that (a) the officer was not entitled to immunity because there were factual issues as to whether he acted maliciously; and (b) there were factual issues as to her tort claims making summary judgment inappropriate.  We affirm.

FACTS

On June 10, 2002, appellant Karen A. Morris called 911 to report that she was having chest pains.  An ambulance was dispatched and subsequently transported her to North Memorial Hospital’s emergency room.  After being examined by an emergency-room physician and before being formally discharged, appellant left the emergency room.  Appellant was barefoot and still wearing her hospital wristband.  According to appellant, she was on her way home.  While still in the hospital, appellant stumbled and fell.  She again fell outside of the hospital. 

Viewing appellant’s behavior, an onlooker contacted 911.  The onlooker told 911 that appellant kept passing out and falling down on the ground.  The onlooker also stated that appellant was walking without shoes and with her hospital wristband on.  During deposition testimony, appellant stated that she regularly uses a walker and admitted that an onlooker could have mistaken her actions for those of an inebriated person.

Appellant began walking against traffic along Highway 81.  Officer Smith was dispatched to the scene.  As Officer Smith arrived at the scene the video camera in his squad car was on.  The video tape shows a limited portion of the encounter.  The video shows appellant walking and appearing disoriented.  Appellant also appears unsteady and using the guardrail for balance.  The video shows Officer Smith stopping his car in the turning lane next to appellant.  The video shows Officer Smith getting out of his car and approaching appellant, who stops briefly but continues to walk forward.  There is no sound recording of this event. 

To get appellant out of the danger of oncoming vehicles, Officer Smith moved appellant to the other side of the guard rail.  Appellant said that she felt pain and started to feel faint and told Officer Smith “I’m going to faint.”  Officer Smith grabbed appellant.  Appellant again told Officer Smith that she was going to faint.  According to appellant, she began to fall down and Officer Smith “yanked” her up.  He then turned to talk with another officer and the emergency medical technicians (EMTs) who had arrived on the scene. 

In the meantime, an onlooker in a van stopped to offer appellant a ride home.  The passenger of the van got out and offered appellant her seat.  Because appellant could not step up into the van, appellant began to crawl into the van.  Realizing that appellant was getting into the van, Officer Smith began pulling appellant out of the van by her ankles. Appellant fell out of the van onto the cement.  The entire encounter between Officer Smith and appellant took approximately ten minutes. 

The EMTs then strapped appellant onto a gurney.  Appellant was taken back to North Memorial Hospital emergency room by the EMTs.  Appellant was subsequently released without being seen by an emergency physician.  According to appellant, she sought professional psychological treatment for post-traumatic stress disorder as a result of the incident. 

Appellant commenced this suit against respondents North Memorial, Officer Smith, and the City of Robbinsdale, alleging state tort claims of intentional infliction of emotional distress, assault and battery, and false imprisonment.  North Memorial was subsequently dismissed from the suit.  The remaining respondents moved for summary judgment, arguing official and vicarious immunity.  On August 31, 2004, the district court issued an order granting respondent’s motion for summary judgment and dismissed all of appellant’s tort claims. 

D E C I S I O N

            On appeal from summary judgment, this court asks two questions:  (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  However, whether a municipality or its officials are protected by official immunity is a legal question that appellate courts review de novo.  Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).   

Appellant argues that Officer Smith’s actions were malicious and therefore not protected by official immunity.  Official immunity only applies in situations involving the acts of an individual state official.  Carter v. Peace Officers Standards & Training Bd., 558 N.W.2d 267, 271-72 (Minn. App. 1997).  “Only when officials act outside the scope of their charged authority can they be deemed to have waived this immunity and be held personally liable for their negligence.”  Dokman v. County of Hennepin, 637 N.W.2d 286, 296 (Minn. App. 2001), review denied (Minn. Feb. 28, 2002).  Official immunity is intended “to protect public officials from the fear of personal liability that might deter independent action.”  Janklow v. Minn. Bd. of Examiners for Nursing Home Adm’rs, 552 N.W.2d 711, 715 (Minn. 1996) (quoting Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988)). 

Official immunity is “regularly applied to the judgment required of police officers in discharging their duties.”  Gleason v.Metrop. Council Transit Operations, 582 N.W.2d 216, 220 (Minn. 1998).  Courts have generally afforded police officers “a wide degree of discretion precisely because a more stringent standard could inhibit action.”  Elwood, 423 N.W.2d at 678; see id. (“fear of personal liability . . . might deter independent action”).  However, even though an officer’s actions are discretionary, an officer is not shielded from suit if his or her actions are willful or malicious.  Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997), review denied (Minn. May 20, 1997). 

In this case, determining the degree of force called for under the circumstances required the officer to exercise discretion.  His decisions are protected unless malicious or legally unreasonable.  We conclude that Officer Smith’s actions are protected.  As the district court stated:

[The officer] was called to the scene and determined that [appellant] needed medical assistance because she was unsteady on her feet, unresponsive, combative, displayed erratic behavior, was dressed in what appeared to be a hospital gown, and had a hospital ID band on her wrist.  Not only were [the officer’s] actions legally reasonable, he was required to aid [appellant] and would have been derelict in his duties as a police officer had he not done so.

 

The record supports the district court’s conclusion.  A review of the videotape shows appellant disoriented, walking along side a busy highway.  Responding to the 911 call, the officer had a responsibility to act quickly and assist appellant.  Both parties agree that appellant began to crawl into an unknown person’s van.  The officer chose to get appellant back to the hospital where she could get help, instead of allowing her to ride off
in an unknown person’s vehicle.  See Minn. Stat. § 145.853, subd. 5 (2004).[1]  We conclude that Officer Smith’s actions were covered under the doctrine of official immunity.  It is possible, perhaps probable, that the “Good Samaritan” would also have driven appellant to a place of safety.  That does not change the appropriateness of Officer Smith’s decision to move appellant from a stranger’s vehicle to a medical vehicle. 

Since Officer Smith is protected by official immunity, his employer, the City of Robbinsdale, is protected from liability by the doctrine of vicarious official immunity.  Official immunity protects public officials acting in their official capacity.  Vicarious official immunity protects the governmental entity (their employer).  If the state of the law was such that governmental employees knew their employer could be sued even when the employee’s action was protected, “the threat of potential liability [would] unduly inhibit the exercise of discretion required of public officials in the discharge of their duties.”  Watson v. Metrop. Transit Comm’n, 553 N.W.2d 406, 414 (Minn. 1996) (quoting Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991)).  “Vicarious official immunity protects a governmental entity from liability based on the acts of an employee who is entitled to official immunity.”  Dokman, 637 N.W.2d at 297.  Once a plaintiff asserts an officer’s conduct was legally unreasonable, the government has the burden of showing it was legally reasonable.  See Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997) (stating that burden is on party asserting immunity); State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994) (“[d]efendants are entitled to summary judgment on the basis of official immunity if there are no genuine issues of material fact”).  

Since Officer Smith was entitled to official immunity, his employer, the City of Robbinsdale, is protected by vicarious official immunity.  The district court properly determined that Officer Smith and the City of Robbinsdale are protected under the doctrine of immunity.  Thus, we need not address appellant’s tort claims of intentional infliction of emotional distress, false imprisonment, assault, and battery.

Affirmed.