Carrie Koivisto, Respondent, vs. Duane L. Dale, et al., Defendants, Richard A. Poupard, et al., Appellants. A06-2349, Court of Appeals Unpublished, September 11, 2007.

This opinion will be unpublished and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

A06-2349

Carrie Koivisto,

Respondent,

vs.

Duane L. Dale, et al.,

Defendants,

Richard A. Poupard, et al.,

Appellants.

Filed September 11, 2007

Reversed

Shumaker, Judge

St. Louis County District Court

File No. 69DU-CV-06-131

Steven T. Moe, Petersen, Sage, Graves, Layman & Moe, P.A., 306 West Superior Street, Suite 1505, Duluth, MN 55802 (for respondent Koivisto)

Brian R. McCarthy, McCarthy & Barnes, PLC, 11 East Superior Street, Suite 546, Duluth, MN 55802-2027 (for defendants Dale and Serena)

Lori Swanson, Attorney General, Daniel L. Abelson, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2134 (for appellants)

Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

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

SHUMAKER, Judge

Appellants, a snowplow operator and his state employer, challenge the district court’s denial of their motion for summary judgment in which they asserted official immunity, vicarious official immunity, and snow and ice immunity in this action for damages arising out of a collision with a state snowplow.

Because the snowplow operator was engaged in discretionary conduct at the time of the collision, he is entitled to the absolute defense of official immunity, and his state employer is entitled to the absolute defense of vicarious official immunity. Therefore, the district court erred as a matter of law, and we reverse.

FACTS

This appeal raises questions of the applicability of various immunities in a personal-injury lawsuit arising out of a motor-vehicle accident involving a state snowplow.

The dispositive facts are not in dispute. On November 4, 2003, appellant Richard Poupard was working as a snowplow driver for the Minnesota Department of Transportation (MnDOT) and was plowing roads in the Virginia area. One of his assignments was to plow the left-hand lanes of four-lane, divided Highway 53 near the town. At one point he noticed a car in the ditch on the right-hand side of the road. The driver was slumped over the steering wheel.

Poupard decided to render assistance to the individual in the ditch. When he believed that it was safe to do so, Poupard lifted his plow, turned on his right-turn signal, looked into his right-hand mirrors, and began crossing from the left side of the road to the right shoulder. He saw a glimmer of a headlight behind him, and he estimated that there was a vehicle traveling toward him that was 800 to 1,000 feet away. When Poupard reached the right lane, he downshifted, turned off his turn signal, and looked for a place to move onto the right shoulder. He was braking for part of his right-hand movement. When his plow crossed the right fog line, it swerved in the slush on the shoulder and Poupard touched his brakes again. As he did so, a car, operated by Duane Dale and carrying respondent Carrie Koivisto as a passenger, collided with the rear of the plow. Dale, whose blood-alcohol concentration was .20 at the time of the collision, and Koivisto were injured. Koivisto sued Dale, Poupard, the State of Minnesota, and others for damages.

Asserting defenses of official immunity, vicarious official immunity, and statutory snow and ice immunity, Poupard and the state moved for summary judgment. Without making findings or explaining its ruling, the court denied the motion. This appeal followed.

D E C I S I O N

This is an appeal from the district court’s denial of summary judgment. Ordinarily, a denial of summary judgment is not appealable, but there is an exception to that rule when the denial is based on a rejection of a statutory or common-law official-immunity defense. Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 218 (Minn. 1998). We review the district court’s ruling to determine whether genuine issues of material fact exist and whether the court erred in its application of the law. Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 411 (Minn. 1996). Whether or not immunity exists under particular circumstance is a question of law that we review de novo. Gleason, 582 N.W.2dat 219.

Because the district court did not include a memorandum with its ruling, we are uncertain whether it found that there are material fact issues for trial or whether, under the facts as they exist, Poupard and the state are not entitled to immunity defenses. But, as to the precise immunity issues, none of the parties contends that there exist dispositive questions of fact. Thus, we take the salient facts identified above as providing the uncontroverted record in this matter and we consider whether, under these circumstances, Poupard and the state are entitled to the protection of immunity defenses.

Common law official immunity insulates public officials from personal liability for harm allegedly resulting from their discharge of duties that call for the exercise of judgment or discretion, unless the officials are guilty of willful or malicious wrongs. Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988). There is no allegation that Poupard engaged in a willful or malicious wrong. Rather, the contention is that he was negligent in the operation of his snowplow.

The purpose of official immunity is to relieve public officials of the fear that they will become personally liable for their official actions, which fear could deter or impair the full performance of their duties. Id.at 678. If an individual public official is found to be immune respecting particular conduct, “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).

It is undisputed that, at the time of the collision, Poupard was a public employee of the state and was acting within the scope and course of his official employment duties. The focus then becomes the nature of the function in which Poupard was engaged when Dale collided with the snowplow.

“[C]ommon law official immunity does not protect officials when they are charged with the execution of ministerial, rather than discretionary, functions, that is, where ‘independent action’ is neither required nor desired.” Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004).

A ministerial function is “absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts.” Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (quotation omitted). A discretionary function is one that involves “more individual professional judgment that necessarily reflects the professional goal and factors of a situation.” Id. But “the mere existence of some degree of judgment or discretion will not necessarily confer common law official immunity; rather, the focus is on the nature of the act at issue.” Anderson, 678 N.W.2d at656.

But even if a function is ministerial, official immunity is not forfeited if the “conduct was required by a protocol established through the exercise of discretionary judgment that would itself be protected by official immunity.” Id.at 660.

Although Poupard and the state point to a policy that MnDOT follows in aiding motorists who are stranded or in distress, this does not appear to be the type of “policy” or “protocol” contemplated by caselaw. MnDOT’s policy is in the record through the affidavit of a MnDOT transportation superintendent: “Plow operators are instructed to stop and aid vehicles that appear to be stranded or in some distress whenever it is safe to do so. Plow operators are given the discretion to determine whether it is safe to stop and aid a vehicle.” Implicit in this policy is the discretion not to stop.

Unlike in Andersonwhere there was a protocol for using a circular table saw in a school shop class, the MnDOT policy designates no particular procedure or protocol to be followed but rather reflects the discretionary nature of the function. Instead of a “Here’s-how-you-do-it” guide as in Anderson, the MnDOT policy is one of “You-decide-whether-or-not-to-act-at-all” and then leaves the plow operator to choose the manner and means of whatever action he undertakes. Because the MnDOT policy is not the type of protocol described in Anderson, we need not determine whether that policy is itself the product of a discretionary decision. See id. at 662.

Koivisto argues that the MnDOT policy, such as it is, pertains to snowplowing and that Poupard was not involved in any plowing activity at the time of the collision. Although the facts show that Poupard had lifted the plow blade in anticipation of assisting the motorist slumped over the wheel, such assistance remained within the ambit of the plow operator’s express function. The record shows that literal snowplowing is an official function of the operator of the plow but also that assisting stranded or distressed motorists is an official function of the operator as well.

Koivisto contends that Poupard’s discretion pertained only to the decision of whether or not to stop to aid the motorist and that everything after that decision was ministerial in nature and not entitled to immunity. Thus, she argues, the acts of making the lane change and moving toward the shoulder of the road were but ministerial details.

We reject the notion that the issue of the applicability of official immunity requires the kind of parsing Koivisto urges. Furthermore, immunity necessarily applies to conduct—acts or omissions—and not merely to a decision that might remain unexecuted.

Here, the nature of the function in question, namely, coming to the aid of an apparently distressed motorist, was discretionary in general and in the particulars of its execution. Poupard had to exercise his judgment as a professional equipment operator as to whether it was even safe to try to aid the motorist. He had the option not to stop his plow and instead perhaps call for emergency help. Once he decided that it was safe to stop to aid the motorist, he had to exercise his judgment as to when, where, and precisely how to accomplish the stop safely. None of these details was a purely ministerial act, even though there might exist general traffic regulations as abstract guides. Poupard necessarily had to use his judgment to assess the situation at the outset and to exercise his assessment continuously throughout the performance of the conduct in question. We hold that Poupard’s conduct required the exercise of judgment and discretion and thus was discretionary conduct entitled to the insulation of common law official immunity. Consequently, the state is also protected by vicarious official immunity.

A similar, but not identical, authority discussed by Poupard, the state, and Koivisto is the Schroeder case in which the supreme court held that the operator of a state road grader was officially immune from liability when an accident occurred as he operated the grader against the flow of traffic. Schroeder, 708 N.W.2d at 508. The court noted that the operator was acting according to specific policy permitting operation of graders against traffic. Id.at 506. The court noted that the policy permitted but did not require such operation and that the decision to grade against traffic was discretionary. Id.

Here, the policy is more general in that it does not identify particular conduct that is to be the product of the decision to act as the policy in Schroeder does. Nevertheless, Schroeder does support the proposition that both the decision to act and the execution of that decision are integrally connected with the discretionary nature of the official function.

Because our holding that common law official immunity and vicarious official immunity apply respectively to Poupard and the State of Minnesota, we need not reach the issue of the applicability of snow and ice immunity.

Reversed.