Duane A. Lillehaug, Dosland, Nordhougen, Lillehaug & Johnson, P.A., 730 Center Avenue, Suite 203, P.O. Box 100, Moorhead, MN 56561 (for Appellant)

Kay Nord Hunt, Ehrich L. Koch, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Respondent Independent School District No. 627)

Charles R. Powell, Heidi M. Fisher, Powell & Powell, 713 Beltrami Avenue, P.O. Box 908, Bemidji, MN 56619 (for Respondent Parsley)

Considered and decided by Willis, Presiding Judge, Parker, Judge, and Peterson, Judge.

Korydon Chervestad, as trustee for the heirs of Adeline Chervestad, appeals from summary judgment in this wrongful death action, arguing that the district court improperly determined that the accident that caused the death of Adeline Chervestad was not foreseeable and that respondent Independent School District No. 627 was entitled to vicarious official immunity. We reverse and remand.

Dale Salberg, the superintendent of Independent School District No. 627 (school district) and principal at Oklee, was responsible for organizing and planning the parade. Two class advisors, Vicky Kolden and Todd Fore, were assigned the responsibility of making sure that Oklee seventh graders had a float, which in this instance was a homemade, four-wheel trailer decorated by the students. The advisors worked with the students to plan and decorate the class float and were required to attend the parade to supervise the students.

Salberg did not specifically instruct class advisors to remain with their respective floats during the parade, because he thought advisors knew from past parades that they were to accompany their classes' floats at all times. Kolden did not accompany the seventh-grade float at all during the parade. Fore accompanied the float for part of the parade, but left it to help with what he decided were safety problems relating to another float and did not return. Therefore, from some point during the parade through its conclusion, no school district personnel supervised the seventh-grade float.

Chad Parsley, a 22-year-old volunteer, used his car to tow the seventh-grade float in the parade. Salberg instructed him only to watch his speed and drive carefully.

Chervestad, a 12 year old, and 20 of her classmates rode on the seventh-grade float. Before the parade, Salberg told students riding on the floats not to dangle their feet over the sides of the floats and not to jump on or off during the parade. The students, with the permission of the school district, had candy to throw from the floats to the spectators during the parade. However, before the parade began, students on the floats began to throw candy at students on other floats.

Parsley followed the float in front of him throughout the parade and did not drive faster than five miles per hour. At the end of the parade route, Parsley was confused about where floats were to go and made a slow U-turn to position the seventh-grade float in front of the school. During the turn, Chervestad jumped from the float and fell under a wheel, which rolled along the entire left side of her body. Chervestad went into cardiac arrest on the way to the hospital and died shortly thereafter.

Appellant brought this wrongful death action against respondents school district and Parsley. Respondents moved for summary judgment, arguing that because the accident was not foreseeable, respondents were not negligent. The district court granted respondents' motion, finding that it was not foreseeable that Chervestad would jump from the float while it was still moving, and, further, that vicarious official immunity barred suit against the school district. This appeal followed.

The common-law test of duty is the probability or foreseeability of injury to the plaintiff. As expressed by Chief Judge Cardozo, "[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension."

Connolly v. Nicollet Hotel, 254 Minn. 373, 381, 95 N.W.2d 657, 664 (1959) (quoting Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99, 100 (1928)).

A. Chad Parsley

The district court concluded that because "Parsley could not have foreseen that the decedent would suddenly jump off the trailer," Parsley breached no legal duty and was not negligent as a matter of law. We disagree.

On the day of the accident, many children were either walking in the parade or riding on floats. Some, including Chervestad, were riding on floats for the first time. Although the students were told not to jump on or off the floats during the parade, the evidence shows that the seventh-grade float was not supervised by the time it reached the end of the parade. We conclude that it was error for the district court to determine, as a matter of law, that it was unforeseeable that a seventh-grade child would jump from the float before it came to a complete halt and be injured.

B. The School District

Because of its conclusion that it was not foreseeable that a seventh-grade child would jump from the float, the district court found that the school district breached no duty "because the harmful occurrence was not a direct and reasonably foreseeable consequence of the failure to supervise." Because of the circumstances of the parade described above, we conclude this was error.

A school district is required to exercise ordinary care to prevent foreseeable misconduct of students. In order to recover damages, a plaintiff need only prove that a general danger was foreseeable and supervision would have prevented the accident.

Hamilton v. Independent Sch. Dist. No. 114, 355 N.W.2d 182, 185 (Minn. App. 1984) (citation omitted). Additionally, there are fact questions here relating to the adequacy of supervision provided during the parade and of the instructions given to the supervisors. We have concluded that it was not unforeseeable, as a matter of law, that a student might jump from a moving float and be injured. Whether appropriate supervision would have prevented the accident is an issue for trial.

A district court may not decide fact issues on a motion for summary judgment; its function is to determine whether genuine issues of material fact exist. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981). Facts, and the inferences and conclusions that may be drawn from those facts, are matters that may not be resolved by the district court on summary judgment. Hamilton, 355 N.W.2d at 184.

Proximate cause is usually a question of fact and seldom can be disposed of on a motion for summary judgment. Summary judgment should be granted in a negligence case only if the facts are undisputed and the evidence is so clear that it will leave no room for honest differences of opinion among reasonable people.

Id. (citations omitted).

A. Chervestad's Actions

The district court found that the sole cause of the accident was "[Chervestad's] suddenly jumping off the float." There is nothing in the record to suggest that Chervestad fell or was pushed. Because it would be impossible for a jury to arrive at any other finding, the district court did not err in concluding that Chervestad jumped from the float. However, whether that was the sole cause of the accident is a genuine issue of material fact for trial.

B. Parsley's Actions

The district court determined that Parsley's U-turn with the float at the end of the parade did not cause the accident. Nothing in the record suggests that it was inappropriate for Parsley to make a U-turn or that the U-turn was executed at excessive speed. However, we conclude that there are genuine issues of material fact regarding matters such as: (1) whether Parsley maintained an appropriate lookout while making the U-turn and (2) whether the manner of executing the U-turn was appropriate under the circumstances. Whether the U-turn was a cause of the accident is an issue for trial.

C. Supervision

Whether appropriate supervision by the school district would have prevented Chervestad's accident is a question for the jury. Id. at 185. Considering the evidence of a lack of supervision of the seventh-grade float, a causation issue exists that should be decided at trial. See id. (concluding that because of evidence of earlier assault by student involved and lack of supervision by school district, fact issue on causation existed).

In addition to supervising the seventh-grade float, Kolden and Fore, as teachers in the School District, had an obligation to supervise all of the students and take care of any discipline problems. Kolden and Fore made decisions as to how they would supervise the float. Kolden did not follow the float and her whereabouts during the course of the parade is unknown. At any given time, she would likely be less than three blocks away from the float. Fore followed the float to a point. Exactly when he quit following the float is undetermined. The reason Fore left the float was because he made a decision that safety concerns involving students on another float required him to go over and assist. This was an exercise of his judgment as to supervision of the students at the parade. The Court will not second-guess such a decision as it calls for judgment as to where his supervision was most needed. * * * The decision to leave the float because of other safety concerns involving other students is governed by official immunity.

The supreme court has defined official immunity as follows:

[O]fficial immunity protects from personal liability a public official charged by law with duties that call for the exercise of judgment or discretion unless the official is guilty of a wilful or malicious wrong.

Rico v. State, 472 N.W.2d 100, 106-07 (Minn. 1991). Official immunity protects judgment or discretion that is exercised on an operational level. Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996).

Official immunity does not, however, protect public officials from liability for the performance of ministerial tasks. Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992). A duty is ministerial "'when it is absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.'" Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988) (citation omitted). The focus is on the nature of the act undertaken. Larson v. Independent Sch. Dist. No. 314, 289 N.W.2d 112, 120 (Minn. 1979). In deciding if an act is ministerial, the court must consider whether the nature, quality, and complexity of the decision-making process justifies granting immunity to the official. Id.

Whether official immunity applies is a legal question. Elwood, 423 N.W.2d at 675. "In analyzing any immunity question it is essential to identify the precise governmental conduct at issue." Olson v. Ramsey County, 509 N.W.2d 368, 371 (Minn. 1993).

The record here shows that it was the school district's policy that each float would be supervised by two class advisors at all times during the parade. Superintendent Salberg did not specifically communicate this policy to class advisors, assuming they were aware of the policy because of their experience with past parades. The conduct at issue here is Salberg's failure to communicate the school district's established policy to the class advisors who would supervise the students during the parade. While establishment of the policy involved application of Salberg's judgment and discretion, communication of the policy to those who were to effectuate it was a ministerial act. A failure to communicate the policy is therefore not protected by official immunity.

Because Salberg's failure to communicate the policy is not protected by official immunity, the school district is not entitled to vicarious official immunity. See Pletan, 494 N.W.2d at 42 (holding that vicarious official immunity extends official immunity of governmental employee to governmental employer).

A respondent may obtain review of a judgment or order entered in the same action which may adversely affect him by filing a notice of review with the clerk of the appellate courts.

Minn. R. Civ. App. P. 106. Because the school district did not file a notice of review, we do not address the issue of statutory immunity.

Reversed and remanded.