Sylvester J. Eischens and Joan P. Eischens, as trustees for the heirs and next-of-kin of Nancy Joan Eischens Theide, decedent, Appellants, vs. Scott County, Respondent. C6-97-786, Court of Appeals Unpublished, October 14, 1997.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-97-786

Sylvester J. Eischens and Joan P. Eischens, as trustees for the

heirs and next-of-kin of Nancy Joan Eischens Theide, decedent,

Appellants,

vs.

Scott County,

Respondent.

Filed October 14, 1997

Affirmed

Short, Judge

Scott County District Court

File No. C966140

David L. Stowman, 1100 West Lake Drive, P.O. Box 845, Detroit Lakes, MN 56502 (for appellant )

James R. Andreen, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Bloomington, MN 55431 (for respondent).

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

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

SHORT, Judge

While driving eastbound on County Road 68, Nancy Joan Eischens Theide lost control of her vehicle at a curve in the road. The vehicle left the road and landed upside down in a creek bed. Although her passenger was able to escape, Theide drowned. The decedent's parents (Sylvester J. and Joan P. Eischens) brought a wrongful death action against Scott County alleging negligence in failing to properly design, construct, or maintain County Road 68. Claiming immunity from civil tort liability, the county moved for summary judgment. The trial court granted summary judgment in favor of the county on the basis of immunity. On appeal, the Eischens argue: (1) notice is not a prerequisite to maintaining their claim, and in the alternative, the county had notice of the defective and inherently dangerous condition; and (2) the county's actions are not protected by either statutory or common law official immunity. We affirm.

D E C I S I O N

On appeal from a grant of summary judgment, we determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988); see Minn. R. Civ. P. 56.03 (judgment shall be rendered forthwith if pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and either party is entitled to judgment as a matter of law). While we view the evidence in the light most favorable to the party opposing the motion, the nonmovant must produce specific facts that create an issue for trial. Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn. 1995). Whether a municipality has received notice of a defective condition is a question of fact. Kopveiler v. Northern Pac. Ry. Co., 280 Minn. 489, 493, 160 N.W.2d 142, 146 (1968). Governmental immunity from tort liability presents a question of law, which we review de novo. Snyder v. City of Mpls., 441 N.W.2d 781, 786 (Minn. 1989).

The Eischens argue "notice" is not a prerequisite to maintaining their negligence claim against the county. We disagree. Counties have a statutory duty to construct, improve, and maintain county highways. Minn. Stat. § 163.02, subd. 1 (1996); see Johnson v. Nicollet County, 387 N.W.2d 209, 211 (Minn. App. 1986) (holding counties have common law duty to maintain streets and sidewalks in reasonably safe condition). However, a municipality's liability is limited to those cases where it has actual or constructive notice of a defective condition that is inherently dangerous. Hansen v. City of St. Paul, 298 Minn. 205, 210, 214 N.W.2d 346, 348 (1974); but see Nguyen v. Nguyen, 565 N.W.2d 721, 724 (Minn. App. 1997) (implying issues relating to hazardous conditions and notice are not germane to immunity analysis because they are "only meaningful in defining a defendant's duty for negligence law purposes").

In the alternative, the Eischens argue the county was on notice of a dangerous condition. They offer affidavit evidence in an attempt to create a triable fact issue. However, the proffered affidavit is insufficient because it: (1) is not signed or notarized; and (2) contains information about two prior fatalities involving cars that hit fixed objects near the same curve. See Minn. R. Civ. P. 56.05 (describing form of affidavits); Kay v. Fairview Riverside Hosp., 531 N.W.2d 517, 520 (Minn. App. 1995) (holding police reports not admissible in opposition to summary judgment because they were not affidavits), review denied (Minn. July 20, 1995). The Eischens failed to offer any evidence that the existence of a creek bed below a curve on Highway 68 created a hazard requiring a guardrail. See Seaton v. Scott County, 404 N.W.2d 396, 399 (Minn. App. 1987) (holding county immune where no evidence of knowledge that lack of guardrail is dangerous condition), review denied (Minn. June 25, 1987). Under these circumstances, there is no disputed fact on the question of the county's lack of notice.

II.

The Eischens also argue the county's failure to install a guardrail is not protected by either statutory or official immunity. We disagree. The record demonstrates: (1) the county adopted the Minnesota Department of Transportation's policy governing the installation of guardrails; (2) the state's policy provides guidelines and methodologies to be considered when deciding whether to erect a guardrail; (3) a guardrail is considered a hazard under certain circumstances; (4) the county engineer balanced safety and economic factors in deciding not to erect a guardrail; (5) a driveway enters the roadway just west of where the accident occurred, so a guardrail necessarily would have to bend abruptly to accommodate access to that property; (6) since its construction in 1964, Highway 68 has never had a guardrail at the accident site; and (7) there are safety signs near the accident site warning drivers to reduce speed due to a curve in the road ahead. Given these undisputed facts, the county engineer's decision is a planning decision protected by statutory discretionary immunity. See Nusbaum v. Blue Earth County, 422 N.W.2d 713, 723 (Minn. 1988) (holding state protected by statutory immunity because adoption by state of Manual Uniform Traffic Control Devices, 2B-13 was policy decision and challenge to state engineers who followed manual was challenge to policy itself); see also Zank v. Larson, 552 N.W.2d 719, 722 (Minn. 1996) (holding city entitled to statutory immunity because determining duration of all red clearance signal involved balancing competing safety considerations); Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995) (holding county entitled to statutory immunity because decision to adhere to established repair schedule was made after assessing risks and costs of changing schedules). In addition, official immunity operates to protect the engineer's decisions or omissions, and extends vicariously to shield the county from liability. See Johnson v. State, 553 N.W.2d 40, 47-8 (Minn. 1996) (holding state's agents entitled to official immunity because state balanced protected official policy considerations in setting up warrant process and then followed applicable policy, procedure, and administrative rule in issuing warrant); see also Pletan v. Gaines, 494 N.W.2d 38, 41-2 (Minn. 1992) (holding official immunity extends vicariously to city because police officer's decision to engage in car chase and to continue chase involves weighing of many factors, and failing to extend immunity may cause police officers to think their own employment performance is being evaluated and consequently may decline to engage in pursuit when pursuit is indicated); Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, 273 (Minn. App. 1996), review denied (Minn. Sept. 20, 1996) (holding official immunity extends vicariously to the county because traffic engineer's decision to place "stop ahead" sign demonstrates exercise of judgment and failing to extend immunity would result in chilling effect on traffic engineer's decision to place "stop ahead" signs).

Affirmed.