This opinion will be unpublished and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

A06-1605

 

Frieda Rebischke,

Respondent,

 

vs.

 

Metropolitan Sports Facilities Commission,

Appellant,

 

Minnesota Twins Partnership,

Respondent.

 

Filed July 17, 2007

Affirmed in part, reversed in part, and remanded

Shumaker, Judge

 

Hennepin County District Court

File No. 27-CV-05-014721

 

 

 

L. Michael Hall, L. Michael Hall, P.A., 1010 West St. Germain Street, Suite 100, St. Cloud, MN 56301 (for respondent Rebischke)

 

Richard P. Mahoney, Victor Lund, Mahoney, Dougherty and Mahoney, P.A., 801 Park Avenue, Minneapolis, MN 55404 (for appellant)

 

Michael C. Lindberg, Jason M. Hill, Johnson & Lindberg, P.A., 7900 International Drive, Suite 960, Minneapolis, MN (for respondent Minnesota Twins Partnership)

 

 

            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Willis, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Respondent Frieda Rebischke sued appellant Metropolitan Sports Facilities Commission (MSFC), alleging negligence and failure to warn for injuries she sustained while leaving the Metrodome.  The MSFC challenges the district court’s denial of its motion for summary judgment, arguing that the district court erred by finding that the challenged conduct is ministerial as a matter of law and thus the MSFC is not entitled to vicarious official immunity.  Because genuine issues of material fact exist, we reverse and remand the district court’s holding that the MSFC’s decision to allow the balance doors to be opened was a ministerial act as a matter of law, but affirm the denial of summary judgment.

FACTS

            Respondent Frieda Rebischke attended a Minnesota Twins baseball game at the Metrodome on August 4, 2002, when she was 77 years of age.  Approximately ten minutes after the game finished, Rebischke’s grandson led her out of the Metrodome through a set of open balance doors used for exiting the stadium.  As Rebischke walked through the doors, the “wind effect” created by air flowing through the doors allegedly caused her to fall face-first into a turnstile, injuring her.

            Rebischke had attended games at the Metrodome before and was familiar with the wind effect caused when the balance doors were open.  The Metrodome also has signs posted  near the doors warning of the wind effect,  and Rebischke  admits that she did  not

see or read the warnings.[1]  Rebischke claims that the wind effect on that day was much stronger than she previously experienced.  She also alleges that the warning sign was inadequate.

            The Metrodome is owned and operated by MSFC, which is a creature of statute.  Minn. Stat. §§ 473.551, subd. 9, .553 (2006).  The MSFC and respondent Minnesota Twins Partnership are parties to an agreement for the use of the Metrodome for Major League Baseball games.

            The Metrodome’s roof is supported largely by air pressure, requiring air pressure inside the stadium to be greater than the outside air pressure.  The MSFC is responsible for maintaining proper, safe air pressure in the stadium.  The air pressure is regulated by automated instruments controlled by the MSFC.  The difference between the outside and inside air pressure is called “static pressure.”  The MSFC’s operation center in the Metrodome, run by an MSFC operating technician, monitors, records, and controls the static pressure.  A number of factors affect the static pressure, including outside wind speed and heavy snow or rain.  Such exterior factors can require the operating technician to adjust the inside air pressure to maintain normal operating conditions inside the Metrodome.

            The MSFC operations manual for the Metrodome indicates that the normal static-air-pressure reading is nine-tenths of an inch of water on the U-tube manometer, the static-pressure measuring instrument.  The manual dictates that the operating technician raise the static pressure to one inch when patrons exit through the balance doors, although a technician testified that such manual adjustment is no longer required.  The operations manual warns that “fans will actually get blown out the door” when the static pressure is too high.  The manual does not state when the static pressure is too high to allow patrons to exit through the balance doors.

            In order to ensure an expeditious exit from the Metrodome when a large crowd is present, Twins ushers request permission from the operating technician to open the balance doors.  The technician reviews the weather conditions, static-pressure readings, and crowd size when deciding whether to allow fans to exit through the balance doors.  The air pressure in the Metrodome is a “key factor” when determining whether the balance doors may be opened.

            Peter Eisenshenk, the MSFC operating technician on duty the day of Rebischke’s accident, stated that he would not permit the balance doors to open if the static-pressure reading reached above one inch.  He indicated that his decision about when to allow the use of the balance doors is based on the MSFC guidelines.  Other evidence suggests that a static pressure “around [one inch] would be the safe high limit at which fans could exit through the balance doors,” but that it is not possible to maintain a desired pressure because the Metrodome is “a dynamic system and the static air pressure varies.”  Another MSFC employee testified that the upper limit for safe exiting through the balance doors is a static-pressure measurement of 1.1 inches.  There is a graph of the static-pressure measurements from August 4, 2002, but the evidence does not conclusively establish the static-pressure measurement at the time of Rebischke’s accident.

            Rebischke sued the Twins and the MSFC for negligence and failure to warn.  The MSFC moved for summary judgment, claiming vicarious official immunity.  The MSFC also claimed official and statutory immunity regarding Rebischke’s failure-to-warn claim.  The district court denied summary judgment, finding that the operating technician’s decision to allow exiting through the balance doors was a ministerial act, and thus the MSFC is not protected by vicarious official immunity.

            The district court explained that “[o]pening the balance doors is proscribed in both the Operating Center manual and pre-set guidelines when the static pressure measures one inch or greater . . . .”  The district court stressed that the MSFC clearly understood the risk of allowing use of the balance doors when the static pressure is too high and that the guidelines and operations manual “are indicia that MSFC’s duty with respect to the opening the balance doors [is] ministerial.”  The district court did not address the MSFC’s claimed immunity relating to Rebischke’s failure-to-warn claim. 

            This interlocutory appeal followed, portions of which this court dismissed as nonappealable.  Rebischke v. Metro. Sports Facilities Comm’n, No. A06-1605 (Minn. App. Oct. 10, 2006) (order).  We address the remaining issues below.

D E C I S I O N

            In reviewing appeals based on the denial of immunity on summary judgment, this court must determine “whether there are genuine issues of material fact and whether the district court erred in applying the law.”  Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 411 (Minn. 1996).  Summary judgment is appropriate when a governmental entity has established that its actions are immune from civil liability.  Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995).  Whether immunity applies is a legal question this court reviews de novo.  Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998).  The party claiming immunity bears the burden of proof on that issue.  Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

            The MSFC claimed vicarious official immunity from liability on Rebischke’s negligence claim.  Common-law official immunity generally insulates “a public official charged by law with duties which call for the exercise of his judgment or discretion” from personal tort liability.  Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004).  Generally, when a public official is found to be immune from liability on a particular claim, “his government employer will enjoy vicarious official immunity from a suit arising from the employee’s conduct.”  Schroeder v. St. Louis County, 708 N.W.2d 497, 508 (Minn. 2006).

            Official immunity, and therefore vicarious official immunity, does not extend to officials “charged with the execution of ministerial, rather than discretionary, functions . . . .”  Anderson, 678 N.W.2d at 655.  The primary focus must be on “the nature of the act at issue,” and immunity does not apply “(1) when a ministerial duty is either not performed or is performed negligently, or (2) when a willful or malicious wrong is committed.”  Schroeder, 708 N.W.2d at 505.  A duty need not be imposed by law in order for it to be construed as ministerial.  Anderson, 678 N.W.2d at 659.

            A duty is discretionary if it involves “individual professional judgment that necessarily reflects the professional goal and factors of a situation.”  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998).  And a duty is ministerial if it is “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts” and “dictate[s] the scope of the employee’s conduct.”  Anderson, 678 N.W.2d at 659.  But even if conduct is ministerial, official immunity is not forfeited “if that ministerial conduct was required by a protocol established through the exercise of discretionary judgment that would itself be protected by official immunity.”  Id. at 660.  Extending vicarious official immunity is ultimately a policy question for the court.  Id. at 664.

            The MSFC argues that the district court erred by denying summary judgment and holding, as a matter of law, that the operating technician engaged in a ministerial act by allowing the balance doors to be opened.  The MSFC contends that the conduct at issue, the operating technician allowing the balance doors to be opened when the static-pressure reading was above one inch, was a discretionary act protected by vicarious, official immunity.  The MSFC also disputes that the static-pressure reading was above one inch at the time of the accident.

            Because the record contains genuine issues of material fact as to the nature of the operating technician’s conduct, we find that summary judgment was properly denied, but the district court erred by holding as a matter of law that the decision to allow the balance doors to be opened was a ministerial act. 

            Although the MSFC acknowledges that it owes a duty to maintain the static pressure at safe levels, the record is not clear if the MSFC maintains a policy about what the upper limit may be.  The district court held that the operations manual and “pre-set guidelines” proscribe allowing exiting through the balance doors when the static-pressure reading rises above one inch.  Our review of the record does not show such a definite policy.

The operations manual warns about opening the balance doors when the static pressure is too high, but it does not indicate an upper limit.  Although Eisenschenk testified that he would not allow exiting through the balance doors if the pressure measured above one inch, other evidence shows that the upper limit is reached at measurements of 1.1 inches, or “around” one inch.  On this record, genuine fact issues exist for trial that cannot be resolved at summary judgment.

The MSFC also argues, and we agree, that fact questions exist as to the static-pressure measurement at the time of the accident.  The district court held that the static pressure at the time Eisenschenk allowed the balance doors to be opened measured above one inch.  But the record does not definitively establish that the static-pressure measurements exceeded one inch either at the time of the accident or at the time Eisenschenk allowed the balance doors to be opened.  Eisenschenk could only identify a range of measurements on the graph near the time of the accident, which conflict with values identified in an affidavit by Rebischke’s purported expert.  Therefore, factual questions also exist as to the static-pressure measurement at or near the time of Rebischke’s accident, and it was improper for the district court to weigh that evidence at summary judgment.

Finally, we address whether the MSFC raised immunity as a defense to Rebischke’s failure-to-warn claim.  In a summary-judgment memorandum submitted to the district court, the MSFC argued that the “decision to post [the warning] sign and the language to be used thereon is a decision that was made at the policy-making level of the MSFC and is therefore protected by statutory immunity.”  The MSFC also argued that it was entitled to “discretionary immunity.”  Thus, the MSFC raised immunity as a defense to Rebischke’s failure-to-warn claims, although the district court did not address it in its order.

            Because the district court did not address the issue in its summary-judgment order, we have nothing to review.  See Minn. Cent. R.R. Co. v. MCI Telecomm. Corp., 595 N.W.2d 533, 539 (Minn. App. 1999) (stating that “[a] reviewing court will not address an issue raised in the district court if the district court did not rule on the issue”), review denied (Minn. Sept. 14, 1999).  Therefore, the MSFC is not precluded from again raising the statutory-immunity defense in the district court. 

            Affirmed in part, reversed in part, and remanded.