A06-631

Dennis and Carmen Larrison,

as parents and natural guardians

of their son, Christopher Larrison,

Respondents,

vs.

John Marshall High School, et al.,

Appellants.

Filed January 23, 2007

Reversed

Hudson, Judge

Olmsted County District Court

File No. 55-CX-05-001380

Jason D. Pederson, Fuller, Wallner, Cayko & Pederson, P.A., 514 America Avenue Northwest, P.O. Box 880, Bemidji, Minnesota 56619-0880 (for respondents)

Morgan A. Godfrey, Chad H. Gabert, Johnson & Condon, P.A., Suite 600, 7401 Metro Boulevard, Minneapolis, Minnesota 55439-3034 (for appellants)

Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Appellants challenge the district court’s denial of their motion for summary judgment. Appellants argue that (1) they are entitled to vicarious official immunity because respondents’ negligent-supervision claim is based on a teacher’s actions which conform with appellants’ attendance protocol, and (2) there are no issues of material fact regarding the scope of appellants’ attendance protocol. We reverse.

FACTS

Christopher Larrison was assaulted and badly injured by a fellow student during a woodshop class at John Marshall High School. At the time of the assault, the woodshop teacher was in his office entering the day’s attendance in the computer; he did not observe the incident.

Respondents Dennis and Carmen Larrison, acting on behalf of their son, filed a civil suit against appellants John Marshall High School, et al. Respondents alleged that their son’s injuries were the result of the woodshop teacher’s negligent supervision. Appellants moved for summary judgment under rule 56 of the Minnesota Rules of Civil Procedure. Appellants argued, inter alia, that both the woodshop teacher and the school district are entitled to official immunity. A hearing was held, and the district court issued an order denying the motion. This appeal follows.

D E C I S I O N

Appellants challenge the district court’s denial of their motion for summary judgment based on a claim of official immunity. “While denial of a motion for summary judgment is not ordinarily appealable, an exception to this rule exists when the denial of summary judgment is based on rejection of a statutory or official immunity defense.” Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004). When reviewing a district court’s summary-judgment ruling rejecting the defense of official immunity, we consider the evidence in the light most favorable to the nonmoving party and determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Thompson v. City of Minneapolis, 707 N.W.2d 669, 673 (Minn. 2006).

A party opposing summary judgment must “do more than rest on mere averments.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). “[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” Id.

In Minnesota, official immunity is a common-law doctrine which provides that “a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.” Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988) (quotation omitted). A public official will not qualify for official immunity “when he fails to perform a ministerial act, or when his performance of a discretionary act is willful or malicious.” Thompson, 707 N.W.2d at 673. A ministerial act is “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.” Id. (quotation omitted). A discretionary act is one that requires “the exercise of individual judgment in carrying out the official’s duties.” Id. (quotation omitted).

At the time the assault occurred, the woodshop teacher was in his office entering the daily attendance records into the computer. Appellants concede that this act is ministerial, but they argue that the act was required by an attendance protocol developed by school administrators. Therefore, they argue, the woodshop teacher is entitled to official immunity and appellants are entitled to vicarious official immunity. In Anderson, the Minnesota Supreme Court held that when an act is ministerial, but is “required by a protocol established through the exercise of discretionary judgment that would itself be protected by official immunity,” a teacher’s right to official immunity is not forfeited. Anderson, 678 N.W.2d at 660. Therefore, in this case, whether the teacher qualifies for official immunity depends on whether his act was mandated by school protocol.

Respondents dispute the existence of the attendance protocol. In support of their argument that the teacher’s act was required by the school’s attendance protocol, appellants submitted two sworn affidavits, the transcript of the deposition of the teacher who was in charge of the woodshop class at the time of the assault, and the testimony of another adult present at the time of the assault, all of whom stated that there was an attendance protocol and that it required teachers to take attendance before class and enter that attendance into their computer. Respondents argue that the affidavits submitted by appellants were insufficient because they were “created in an attempt to illustrate that [the teacher] was following an ‘alleged’ protocol when in fact there was no such protocol indicating how and when the teacher should take attendance.” To support their contention, respondents cite Conlin v. City of St. Paul, 605 N.W.2d 396 (Minn. 2000), in which the court held that affidavits submitted by a party were insufficient to support a claim of immunity. But in Conlin, the affidavits were insufficient because they were conclusory and did not explain how and why the policy decision was made. Id. at 402. The court explained that the affidavits lacked “explanation and detail” and “merely identify generalized concerns . . . without incorporating specific facts demonstrating that a decision was in fact made.” Id. at 402–03. Unlike in Conlin, the affidavits presented in this case detail the reasoning behind the adoption of the policy: “to facilitate student safety and academic performance by making sure students attended class and were on time.”

The affidavit of the principal of John Marshall High School from 1987 to 2003 described how she, along with John Marshall High School’s administrators and faculty council, developed an attendance protocol in 1987:

The attendance protocol that John Marshall developed and adopted required teachers to take roll at the beginning of each class period. Before we had computers in the classrooms, teachers took roll at the beginning of the class period and either put a slip out on the door or sent a Scantron sheet to a collection site. Once all of the teachers had a computer in their classroom, they were expected at the beginning of the class period to immediately enter roll into their computer and send it to the attendance office.

The affidavit of the current principal of John Marshall High School also described the development of the attendance protocol:

Under the attendance protocol, John Marshall’s staff is required to take attendance at the beginning of class. The instructor should then immediately enter roll into his or her computer – essentially checking boxes on a spreadsheet – so it may be readily accessed by John Marshall’s attendance staff.

Respondents also challenge the existence of the protocol because it is not actually written in the school handbook. But a policy need not be written to support a claim of official immunity. See Anderson, 678 N.W.2d at 658–59 (stating standard for ministerial activity).

We conclude that respondents have failed to show the existence of an issue of material fact and now consider whether appellants are entitled to official immunity as a matter of law.

The application of official immunity is a question of law, which this court reviews de novo. Thompson, 707 N.W.2d at 673. A person performing a ministerial act is entitled to official immunity if he or she is following a protocol “established through the exercise of discretionary judgment that would itself be protected by official immunity.” Anderson, 678 N.W.2d at 660. But the mere existence of some level of discretionary judgment does not automatically confer official immunity, “the focus is on the nature of the act at issue” and “whether [the actions] called for the exercise of discretion at the operational level or instead were ministerial, constituting merely the execution of a specific duty arising from fixed and designated facts.” Id. at 656–57. We conclude that when the administrators of John Marshall High School developed the attendance-taking protocol, they created a procedure at the operational level which involved discretionary policy decisions and judgment. Therefore, the development of John Marshall High School’s attendance-taking protocol is protected by official immunity. There is no dispute with regard to whether the woodshop teacher’s behavior conformed to the attendance-taking protocol. Since the protocol was developed through the exercise of discretionary judgment that would be protected by official immunity, the teacher is entitled to official immunity.

Generally, if a public official is immune from suit, his or her employer will also enjoy immunity. Id. at 663–64.

The court applies vicarious official immunity when failure to grant it would focus “stifling attention” on an official’s performance “to the serious detriment of that performance.” This standard grants vicarious official immunity in situations where officials’ performance would be hindered as a result of the officials second-guessing themselves when making decisions, in anticipation that their government employer would also sustain liability as a result of their actions.

Id. at 664 (citation omitted). The granting of vicarious official immunity is a policy question. Olson v. Ramsey County, 509 N.W.2d 386, 372 (Minn. 1993) (citing Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992)). We have concluded that the woodshop teacher is entitled to official immunity. Because a failure to grant vicarious official immunity would constrain appellants’ ability to develop policies and practices that encourage the educational process, we also conclude that appellants are, in turn, entitled to vicarious official immunity.

Reversed.