This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-495

 

 

Ann Wilson, as Trustee for the

Next of Kin of Scott Wilson, Deceased,

Appellant,

 

vs.

 

City of Burnsville,

Respondent,

 

VisionAir, Inc., a North Carolina corporation,

Defendant.

 

 

Filed May 1, 2007

Affirmed

Worke, Judge

 

 

Dakota County District Court

File No. C6-03-7269

 

 

Chris A. Messerly, Cindy L. Hanneken, Robins, Kaplan, Miller & Ciresi, L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402 (for appellant)

 

Sarah L. Brew, Monte A. Mills, Greene Espel, P.L.L.P., 200 South Sixth Street, Suite 1200, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            Appellant Ann Wilson challenges the partial summary judgment granted by the district court under Minn. R. Civ. P. 54.02 to respondent City of Burnsville, arguing that official immunity and the public-duty doctrine do not bar her claim against the city for negligent provision of 911 emergency services.

            As to official immunity, we hold that the dispatcher’s act of providing the incorrect address was a ministerial act not protected by official immunity, while the emergency responders’ act of driving first to an incorrect location before reaching the scene of the emergency is a discretionary decision protected by official immunity.  But because the public-duty doctrine applies to the city’s provision of emergency services, appellant’s negligence claim against the city is barred, and we affirm.

FACTS

            In the morning of September 20, 2001, decedent Scott Wilson and his wife went jogging.  Sometime after returning home, decedent said he was not feeling well and had trouble breathing.  At 9:54:13, he called 911 and reached a Burnsville Police Department dispatcher, reporting that he was having chest pains.

            When the dispatcher received the call, the Wilsons’ address appeared on her screen and she confirmed that it was the correct address.  After asking decedent several questions, the dispatcher said, “Okay, we’ll be on the way.”  But at 9:56 a.m., the dispatcher gave the emergency responders, Burnsville Fire Engine No. 2 and the Grass Fire Units, the incorrect address.  When the dispatcher realized her mistake, she contacted the emergency responders again and gave them the correct address.

            At 10:00:08, appellant called 911, because she believed that she should have at least heard the sirens by then.  When she started speaking, the dispatcher interrupted her and said, “Yep, we’re on the way.”

            Although the emergency responders had the correct address, they first drove to the incorrect block.  When they were unable to find the address, they radioed the dispatcher for clarification.  At the same time, the dispatcher was talking to appellant, who had called again to inquire when assistance was coming.  Appellant apparently told the responders that they were on the wrong side of the highway.  The dispatcher told appellant they were “right there.”

            Fire Engine No. 2 arrived at the Wilson residence at 10:09:57 a.m., and the emergency responders began administering treatment.  The Grass Fire Unit arrived shortly thereafter, at 10:10:27 a.m.  Decedent was conscious at first, but then became unresponsive.  An ambulance then arrived on the scene at 10:13 a.m.  Decedent was transported to a hospital, where he died.

            Appellant sued respondent city for negligence in providing emergency services.[1]  The city moved for summary judgment.  The district court granted summary judgment to the city, ruling that the city could not be held liable under the public-duty doctrine for emergency services it provided, and that appellant failed to show that the city assumed a special duty to decedent by promising that help was on the way.  The district court also ruled that the actions of the dispatcher and emergency responders were discretionary and protected by official immunity, and that vicarious official immunity applied to the city.  This appeal followed. 

D E C I S I O N

            In reviewing summary judgment, an appellate court will determine whether there are genuine issues of material fact and whether the district court erred as a matter of law.  Minn. R. Civ. P. 56.03; State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

I.

            The issue of whether official immunity applies is a question of law reviewed de novo.  Thompson v. City of Minneapolis, 707 N.W.2d 669, 673 (Minn. 2006).  “Official immunity enables public employees to perform their duties effectively, without fear of personal liability that might inhibit the exercise of their independent judgment.”  Mumm v. Mornson, 708 N.W.2d 475, 490 (Minn. 2006).  It “generally applies to prevent a public official charged by law with duties which call for the exercise of his judgment or discretion from being held personally liable to an individual for damages.”  Schroeder v. St. Louis County, 708 N.W.2d 497, 505 (Minn. 2006) (quotation omitted).  But it does not protect a public official who fails to perform a ministerial act.  Thompson, 707 N.W.2d at 673.

            The first task is to “identify the precise governmental conduct at issue.”  Mumm, 708 N.W.2d at 490.  It must then be ascertained whether the acts were ministerial or discretionary.

                        In analyzing whether an act is ministerial or discretionary, the focus is on the nature of the act.  A ministerial act is one that is absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.  A ministerial duty leaves nothing to discretion; it is a simple, definite duty arising under and because of stated conditions.  In contrast, a duty is discretionary if it involves more individual professional judgment that necessarily reflects the professional goal and factors of a situation.

 

Id. (citations and quotations omitted).  Here, there are two acts at issue, and we first address that of the emergency responders who initially drove to the wrong location before arriving at the scene of the emergency.

             “Public officials responding to emergencies often face circumstances that, by their nature, require the exercise of discretion.”  Bailey v. City of St. Paul, 678 N.W.2d 697, 701 (Minn. App. 2004), review denied (Minn. July 20, 2004).  But even in an emergency, if the emergency personnel failed to comply with ministerial tasks, they are not afforded official immunity.  Mumm, 708 N.W.2d at 493.  Courts have held that failure of an emergency vehicle to use sirens and lights when passing through a stop sign, contrary to law, involves a ministerial duty to which official immunity does not apply.  Nelson v. Wrecker Servs., Inc., 622 N.W.2d 399, 403 (Minn. App. 2001).  Similarly, official immunity did not apply where officers failed to follow departmental policies concerning use of deadly force and a mandatory duty to refrain from initiating a pursuit or to discontinue a pursuit in certain circumstances.  Mumm, 708 N.W.2d at 491-92.

            Emergency personnel driving emergency vehicles -- absent violation of specific policies or laws -- are considered to be engaged in discretionary activities.  See, e.g., Kari v. City of Maplewood, 582 N.W.2d 921, 924-25 (Minn. 1998) (applying official immunity to paramedic driving an emergency medical vehicle who struck pedestrian as she attempted to cross street); Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992) (applying official immunity to officer who engaged in high-speed police pursuit when suspect vehicle struck and killed child).

            Appellant contends that the drivers did not have to exercise any discretion in arriving at the correct location of the emergency.  This court, however, has ruled that official immunity should be applied to the conduct of “ambulance drivers who must make split second decisions about the safest and most efficient way to get to the scene of an emergency.”  Nisbet v. Hennepin County, 548 N.W.2d 314, 317 (Minn. App. 1996).  “These decisions involve consideration of factors such as road and traffic conditions, the urgency of responding quickly to a particular call and the nature of the proposed extraordinary conduct (e.g., driving slightly over the speed limit or driving against traffic).”  Id.  Thus, the conduct of the emergency responders here in first driving to an incorrect location, which occurred while making decisions about how to arrive at the address from which the request for emergency aid arose, is protected by official immunity.

            The second question is whether the dispatcher’s action in initially stating the incorrect address was a ministerial act or a discretionary act.  Appellant contends that the duty to provide a correct address in a known emergency is among the most basic responsibilities that an emergency provider has, and negligence should not be protected by official immunity because there is no discretion or judgment to be exercised in providing the proper address.

            Respondent contends that while this narrow act may appear somewhat ministerial on its face, the dispatcher has numerous duties, all of which involve “the exercise of individual judgment,” depending on the dispatcher’s evaluation of “myriad factors,” including the type of emergency, location, and available resources and which are thus discretionary acts.  See Kari, 582 N.W.2d at 923.  Accordingly, it asserts that the dispatcher is entitled to official immunity for her actions in mistakenly reading the wrong address for the Wilson address and correcting her mistake within minutes.

            We cannot agree.  As the supreme court has explained, not all conduct in an emergency is discretionary.  Mumm, 708 N.W.2d at 493.  Public employers may eliminate the discretion of their employees in certain areas by policy.  Id.  Or the law may establish a ministerial duty.  Nelson, 622 N.W.2d at 403.  But the duty need not be imposed by law to be ministerial.  Anderson v. Anoka Hennepin Indep. Sch. Dist. No. 11, 678 N.W.2d 651, 659 (Minn. 2004).  We must review whether the act is “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.”  Id. (citation omitted).  It is the duty that dictates the scope of the employee’s conduct.  Id.  A sufficiently narrow standard may “make the conduct ministerial if the employee is bound to follow the standard.”  Id.

            As the district court noted, respondent has a protocol and standards that dispatchers must use in responding to emergency calls.  These include obtaining the address where the emergency is taking place, writing it down, and accurately dispatching the emergency responders to the scene.  Thus, the duty to give the correct address was ministerial.  Consequently, even though this was an emergency situation, official immunity does not apply to the dispatcher’s act of giving the incorrect address.  See Mumm, 708 N.W.2d at 493 (holding that even in emergency, responders who do not comply with ministerial acts are not afforded immunity).

            Finally, appellant contends that vicarious official immunity should not be extended to respondent, even if its employees are protected by official immunity.  In most circumstances, when a government employee is protected from suit by official immunity, the government entity will also be protected by vicarious official immunity.  Pletan, 494 N.W.2d at 42.  Generally, vicarious official immunity will be granted “in situations where the 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.”  Anderson, 678 N.W.2d at 664.

            For the conduct to which official immunity applies, namely, the actions of emergency personnel in driving to the scene of the emergency, vicarious official immunity is extended to respondent for the reasons set out in Anderson.

II.

            We next address whether appellant’s claim of negligent provision of emergency services is barred by the public-duty doctrine.  First, to establish negligence, a plaintiff must prove (1) duty; (2) breach; (3) proximate cause; and (4) injury.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).  Whether a legal duty exists is generally a question of law reviewed de novo.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).  But under negligence law, “general duties owed to the entire public rather than a specific class of persons cannot form the basis of a negligence action.”  Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 804 (Minn. 1979) (footnote omitted).  For example, “[f]or over 100 years, Minnesota courts have recognized that firefighting is a general public duty, rather than a specific duty owed to individuals.”  Dahlheimer v. City of Dayton, 441 N.W.2d 534, 537 (Minn. App. 1989), review denied (Minn. Aug. 15, 1989).  Consequently, this court has held that claims of negligence against a city for providing emergency fire protection were barred based on the public-duty doctrine.  Woehrle v. City of Mankato, 647 N.W.2d 549, 551 (Minn. App. 2002) (holding that claims for negligent firefighting were barred by the public-duty doctrine), review denied (Minn. Sept. 17, 2002); Dahlheimer, 441 N.W.2d at 537 (same).  In addition, enactment of a general ordinance under which a municipality assumes a public duty does not, without more, create a duty to an individual when the municipality acts pursuant to that ordinance.  Cracraft, 279 N.W.2d at 806 (applying doctrine to fire inspection conducted pursuant to ordinance).

            Turning to the circumstances of the present case, we first address whether a public duty exists to provide emergency services.  In September 2001, when the incident at issue occurred, each county was required to have established a 911 emergency telephone system.  Minn. Stat. § 403.01, subd. 1 (2000).[2] Services available through this system
were to include, among other things, emergency medical and ambulance services.  Id. § 403.03 (2000); Minn. R. 1215.0800, subp. 2(C) (2001).  Each communications facility receiving the 911 calls “shall provide continuous service to all callers within its service area 24 hours each day, seven days a week.”  Minn. R. 1215.0900, subp. 3 (2001). Providing emergency medical services pursuant to statute, like providing firefighting services or providing fire-code inspections pursuant to an ordinance, satisfies a duty to the public at large.  See Woehrle, 647 N.W.2d at 553.  Otherwise, subjecting decisions to after-the-fact scrutiny could disrupt and undermine the “municipalities’ willingness to provide important public services.”  Id. at 552 (quotation omitted).

            Appellant attempts to distinguish Woehrle, contending that the claims there were based primarily on the manner in which the fire was fought.  Id. at 551.  She argues that her claims are based on the dispatcher initially providing an incorrect address and the emergency responders initially going to an incorrect location and do not constitute a challenge to tactical decisions or the strategy behind the provision of emergency services.  Consequently, she contends that the concerns at issue in Woehrle are not applicable here.

            Contrary to appellant’s characterization, her claims are based on the assertion that the emergency responders were negligent in the manner that they performed their jobs, just as the claims in Woehrle addressed the manner in which the firefighters performed their job.  See id.  This court held that the city did not owe the plaintiffs any duty regarding the manner in which the fire was fought.  Id. at 551-52.  Similarly, we hold that the respondent’s provision of emergency medical services was pursuant to a general duty to the public as required by statute.

            A.         Special duty v. assumed duty

            Despite the public-duty doctrine, a municipality may nonetheless assume a “special duty” to act for the protection of a specific class of individuals, which may form the basis for a negligence action.  Cracraft, 279 N.W.2d at 806.  “[O]nce a duty to act for the protection of others is voluntarily assumed, due care must be exercised even though there was no duty to act in the first instance.”  Id.

            Appellant first argues that respondent “assumed” a direct duty to decedent by promising that help was on the way, which she contends is distinct from the “special duty” addressed in Cracraft and is outside the public-duty doctrine.  She admits that the two doctrines – special duty and assumed duty – are similar, and that portions of Cracraft liken the two concepts, which appellant acknowledges may create some confusion.  But she contends these are separate concepts and she cites language of Cracraft which she asserts shows that there is a difference between the two doctrines: “[W]e find no evidence in the record indicating that a duty was assumed or a special duty was created.”  Id. at 807 (emphasis added).

            Other language in Cracraft explicitly refutes appellant’s argument:

                        “Special duty” is nothing more than convenient terminology, in contradistinction to “public duty,” for the ancient doctrine that once a duty to act for the protection of others is voluntarily assumed, due care must be exercised even though there was no duty to act in the first instance.  “Special duty,” therefore, could also effectively be termed “assumed” duty.

 

Id. at 806 (emphasis added) (citation omitted).  Cracraft also explained that the term “assumed duty” could be used in place of the term “special duty.”

                        It is somewhat unfortunate that the terms “public” duty and “special” duty have been used, inasmuch as they give the misleading impression that the distinction applies only to governmental tortfeasors.  Perhaps “no duty” and “assumed” duty would be more appropriate.

 

Id.  In light of this language in Cracraft, appellant’s claim that a separate assumption-of-duty exception exists has no merit.

            B.         Whether a direct duty exists

            Appellant also contends that the public-duty doctrine is not applicable where the claim for negligence was based on conduct in which the county assumed a direct duty to the plaintiffs.  See Gilbert v. Billman Constr., Inc., 371 N.W.2d 542, 546 (Minn. 1985) (addressing direct duty).  In Gilbert, the county assumed a direct duty to the plaintiffs by designing their septic system and requiring that it be constructed in accordance with specific plans that were provided, and the county’s liability was a jury question.  Id. at 546-47.  In contrast, no direct duty was found when the city, pursuant to an ordinance, ordered plaintiff to remove a tree that it incorrectly diagnosed as diseased, and the plaintiff, who used a dangerous method to remove the tree, sued for negligence after suffering serious injuries in doing so.  Danielson v. City of Brooklyn Park, 516 N.W.2d 203, 206 (Minn. App. 1994), review denied (Minn. July 27, 1994).  This court held that the city did not assume a direct duty because it did not require the plaintiffs to remove the tree in the manner in which they did and it gave no advice on the manner in which the tree should be removed.  Id.

            Appellant contends that respondent assumed a direct duty to decedent when its dispatcher told decedent that help was on the way.  But here, as in Danielson, there is no showing that respondent required or advised decedent to take or not take any action.  Id. at 204.  Consequently, there are no facts which would support appellant’s theory.

            C.        Whether respondent assumed a special duty

            Finally, appellant argues in the alternative that if the public-duty doctrine applies, then respondent had a special duty to provide emergency medical care that it performed negligently.  A special duty arises “when there are additional indicia that the municipality has undertaken the responsibility of not only protecting itself, but also undertaken the responsibility of protecting a particular class of persons from the risks. . . .”  Cracraft, 279 N.W.2d at 806.  “[O]nce a duty to act for the protection of others is voluntarily assumed, due care must be exercised even though there was no duty to act in the first instance.”  Id.  While no bright line can be drawn to show when such a duty exists, four factors may be considered.  Id.  These are (1) “actual knowledge of the dangerous condition”; (2) “reasonable reliance by persons [based] on the municipality’s representations and conduct,” which cause the persons to forego other alternatives for protecting themselves; (3) “an ordinance or statute that sets forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole”; and (4) the need for the municipalities to “use due care to avoid increasing the risk of harm.”  Id. at 806-07 (footnotes omitted).

            1.         Actual knowledge of the dangerous condition

            The first factor is whether the municipality had actual knowledge of the dangerous condition.  Id. at 806.  The district court here ruled that this factor was satisfied based on the 911 calls that respondent received regarding decedent’s condition and this is not in dispute.

            2.         Reasonable reliance on municipality’s representations and conduct

            The next factor is whether there was “reasonable reliance by persons on the municipality’s representations and conduct.”  Id. at 806-07.  This “reliance must be based on specific actions or representations which caused the persons to forego other alternatives of protecting themselves.”  Radke v. County of Freeborn, 694 N.W.2d 788, 794 (Minn. 2005) (noting, without deciding issue of reasonable reliance, that where father had reported suspected abuse of son to police and doctors several times over three-month period, it would be difficult to specify what more he could have done).  Appellant contends that where she and decedent called 911 a total of three times, and each time respondent’s dispatcher promised help was on the way, as in Radke, they clearly relied on these representations and continued to wait for the ambulance to arrive, rather than pursuing other options, such as driving to the hospital themselves.

            Radke, however, did not involve a 911 call with its inherent time constraints and emergency conditions; it involved reports made over a three-month period, while here there were three 911 calls made over an almost 16-minute period.  As the district court concluded, appellant did not produce evidence to show they abstained from taking other actions based on the dispatcher’s statements that the emergency responders were “on the way.”  Had there been evidence as to actual reliance, however, our decision on this factor might have been different.

            3.         Whether statute required protection of particular class of persons that included decedent, rather than the public as a whole

 

            The third factor used to determine whether a special duty exists is whether “an ordinance or statute . . . sets forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole.”  Cracraft, 279 N.W.2d at 807 (footnote omitted).  Therefore, we must examine whether the law at issue sets forth such mandatory acts.

            To review again, the statute at issue here required each county to establish a 911 emergency telecommunications system.  Minn. Stat. § 403.01, subd. 1.  In the rules promulgated pursuant to this statute, the county is to “provide continuous service to all callers within its service area 24 hours each day, seven days a week.”  Minn. R. 1215.0900, subp. 3.  This service “shall include” emergency medical services to be provided “directly to the caller.”  Minn. R. 1215.0800, subp. 2(C).

            A statute requiring reports of suspected abuse or neglect of children was deemed to create a special duty toward children by the county.  Radke, 694 N.W.2d at 796-97.  This was based on the language of the statute, which clearly and repeatedly required performance of mandatory acts, including that reports of suspected abuse must be made by specified persons and that the county then investigate, and provide protection for the children as necessary, collect information, and submit reports afterwards.  Id.  In contrast, a statute establishing general fire inspection and fire-code enforcement requirements for hotels was not intended to protect a particular class of persons, but instead benefited the public as a whole by protecting against fire hazards associated with hotels.  Hage v. Stade, 304 N.W.2d 283, 287 (Minn. 1981).

            Appellant argues that, based on the language in the statute and the rules requiring that the county “shall” operate and maintain a 911 service and provide continuous service directly to the callers, they are intended to benefit a particular class of persons, namely those individuals who are in need of emergency medical services, such as decedent.  See Radke, 694 N.W.2d at 796-97 (finding special duty).  As respondent argues, a similar argument failed in Hage, in which the appellant contended that the statute requiring fire inspections in all hotels was required to protect the particular class of persons who stay in hotels, and the supreme court stated as follows:

                        The mere fact that a statute addresses fire hazards in a narrower category of buildings, however, should not alone be determinative of whether the state has voluntarily assumed a duty to a particular class of persons . . . .  It is also argued that the statute creates a special duty because it identifies a particular class of persons; namely, persons who pay for sleeping accommodations.

 

304 N.W.2d at 287.  The court rejected the argument, noting that because the statute also protects others, including restaurant patrons, those who attend meetings at the hotel, and even those in adjoining buildings, the statute benefited the public as a whole.  Id.  Similarly, appellant has not shown that the statute or the rules create a specially protected class of persons, rather than protecting all members of the public, any one of whom might call 911.

            4.         Whether city increased risk of harm to appellant and decedent

            The final question is whether the municipality used due care to avoid increasing the risk of harm.  Cracraft, 279 N.W.2d at 807.  The district court addressed this issue by examining the difference between an increased risk of harm and a failure to decrease the risk of harm, citing Andrade v. Ellefson, 391 N.W.2d 836 (Minn. 1986).  There, the plaintiffs sued the county for negligently inspecting and supervising a day-care center at which infants were injured.  Id. at 837.  Although the court ultimately concluded that there was a duty of care based on the statute, in addressing the fourth Cracraft factor of whether the municipality’s activity increased the risk, the court held that the factor was not met.  Id. at 843.  The court stated that if the county “had discovered the alleged existing danger in the Ellefson home, it may be plaintiffs would not have been harmed, but that is a failure to decrease, not increase the risk of harm.”  Id.  “Increasing the risk goes to whether a legal duty with tort sanctions should be imposed on the municipality; decreasing the risk goes to whether, assuming the legal duty exists, it was breached.”  Id.; see In re Norwest Bank Fire Cases, 410 N.W.2d 875, 879 (Minn. App. 1987) (upholding trial court’s conclusion that “an inspection that fails to detect dangers does not by itself enlarge the risk of harm”).

            Appellant asserts that here, rather than failure to act, it was the dispatcher’s affirmative act of providing the wrong address and the driver’s affirmative act of going to the wrong location that increased the risk of harm by delaying the provision of critical emergency services to decedent.  She argues that this conduct increased the risk of harm to decedent, resulting in his death.

            Decedent’s risk of harm was caused by his own serious cardiac condition, rather than the fact that respondent dispatched the emergency 911 services.  As respondent explains, in every case involving such services, a plaintiff could always contend that a delay in providing services, by definition an emergency, increases the risk of harm.  But this is a failure to decrease harm, rather than an affirmative increase of the risk of harm.  Andrade, 391 N.W.2d at 843.

            In conclusion, when only the first of four factors in the Cracraft analysis is met, we cannot conclude that respondent here had a special duty to those in decedent’s class of persons.  Instead, the public-duty doctrine precludes the negligence action against respondent.

            Affirmed.