Daniel Moulton, Moulton Law Office, 976 14th Avenue S.W., Rochester, MN 55902 (for respondent) Barbara R. Hatch, Daniel L. Scott, King & Hatch, P.a., 1500 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102 (for appellants)

Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.

The opinion of the court was delivered by: Willis, Judge

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).

Affirmed

Willis, Judge

MINORITY OPINION(S) dissenting, Short, Judge

Steele County District Court File No. C79720

In a negligence action arising from a motorcycle accident on a recently repaired road, appellant Steele County challenges the district court's determination that it is entitled to neither statutory immunity nor common-law official immunity. We affirm.

FACTS

On June 8, 1994, appellant Steele County applied a new seal coat to County Road 16 at the edge of the town of Blooming Prairie. At the relevant time, the county had no written seal-coating policy and its established methods differed somewhat from those recommended by a state manual. The county's regular procedure was to (1) sweep the road with a power sweeper; (2) apply tar; (3) apply gravel based on the amount of tar per square yard, although the maintenance supervisor was entitled to make a "field adjustment" to the ratio; (4) press the gravel into the tar with a power roller; and (5) make another "light pass" with the power sweeper to remove excess gravel to the shoulder of the road. The road would be swept again after two weeks. County policy in 1994 was to post warning signs during the seal-coating process and to remove them at the end of the day that the road was resurfaced, after the maintenance supervisor inspected the road and pronounced it safe.

Todd Anderson, the maintenance supervisor for the June 1994 resurfacing of County Road 16, testified at deposition that he inspected the road and pronounced it safe on June 8, 1994. County records show that Richard Vaith was the sweeper operator that day, but Vaith did not recall any specifics of that particular resurfacing. The parties agree that any warning signs would have been removed on the afternoon of June 8.

At approximately 7:00 p.m. on June 9, 1994, respondent Stanley VanDeWalker rode his motorcycle onto County Road 16. VanDeWalker testified that after slowing to avoid potholes around a set of railroad tracks, he accelerated while rounding a curve. Approximately 15 to 20 feet past the railroad tracks, VanDeWalker drove onto loose gravel that he said did not look different from the rest of the road. The motorcycle slid out of control and VanDeWalker was thrown, suffering several bone fractures and other injuries that resulted in the removal of his spleen.

A deputy sheriff and a Blooming Prairie police officer responded to a 911 call from an unidentified motorist. A deposition, the police officer stated that loose gravel was unevenly spread over the road but reached a depth of two inches in places, and the deputy testified that there appeared to be one and one-half to two inches of loose gravel covering the entire road. The district court noted that the record includes police photographs showing a considerable amount of gravel on the road.

In February 1996, VanDeWalker sued the county for negligence based on the depth of gravel on the road and the absence of warning signs. Numerous depositions were taken. Anderson testified that in 1994 the county used less gravel than the state recommended and that if gravel had been spread according to normal procedures, there could have been a depth of as much as one-half inch before use of the roller. He also testified that the gravel spreader is left on the same setting for the entire season. Both Vaith and Anderson's supervisor, Lee Amundson, testified that the county would not have laid gravel an inch deep because of cost considerations and because it would be ineffective for seal-coating. All three county employees testified that some loose gravel would remain after rolling and sweeping, but Amundson testified that the amount should be "minimal" and Vaith estimated that 95% of the loose rock was swept to the shoulder. Amundson and Vaith both testified that 24 hours' worth of migration of gravel from the shoulder or loosening of gravel from the tar by passing traffic should not produce even an inch of depth; Anderson testified that he "can't see it going over an inch, but I can't say it wouldn't."

Anderson was not asked what procedure he follows in determining whether a road is safe enough to remove warning signs after a seal-coating. The only information he provided is a series of statements that the signs are removed when "we feel" the road is safe. VanDeWalker's ex-sister-in-law, whose home is approximately 200 yards from the accident scene, testified that she was outdoors during the seal-coating, had a clear view of the road, and saw no warning signs at any time.

The county moved for summary judgment on grounds of immunity. The district court granted summary judgment on VanDeWalker's negligence claims challenging the county's policy of removing signs at the end of the seal-coating process, but it denied summary judgment on the other claims on the grounds that (1) there was a genuine issue of material fact as to whether the county had applied more gravel than its policies allowed, which would preclude application of statutory immunity, and (2) that the record contained insufficient information about the process by which Anderson decided whether to remove warning signs to allow the court to determine if it was conduct protected by common-law official immunity. The county filed this interlocutory appeal, and we affirm.

DECISION

The question of the applicability of either statutory or common-law official immunity is one of law, which this court reviews de novo. Davis v. Hennepin County, 559 N.W.2d 117, 120 (Minn. App. 1997), review denied (Minn. May 20, 1997). In reviewing a denial of summary judgment based on a claim of immunity, we presume the truth of the facts alleged by the nonmoving party. Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997).

Immunity Generally

The county here claims both statutory immunity and common-law official immunity. Statutory immunity derives from Minn. Stat. § 466.03, subd. 6 (1996), which grants local government entities immunity from tort liability for "[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Courts interpret this provision narrowly in accordance with its purpose "to preserve the separation of powers by insulating executive and legislative policy decisions from judicial review through tort actions." Rico v. State, 472 N.W.2d 100, 104 (Minn. 1991).

Common-law official immunity derives from the notion of sovereign immunity and provides that "a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong." Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)). This doctrine "primarily is 'intended to insure that the threat of potential liability does not unduly inhibit the exercise of discretion required of public officers in the discharge of their duties.'" Rico, 472 N.W.2d at 107 (quoting Holmquist v. State, 425 N.W.2d 230, 233 n.1 (Minn. 1988)). Because the two types of immunity have different purposes, their protections are not coextensive:

[S]tatutory immunity protects what might be termed policy judgments (which may take into account competing policy factors), while [common law] official immunity protects more individual, professional judgment (wherein the judgment necessarily reflects the factors of a situation and the professional goal * * * ).

Janklow v. Minnesota Bd. of Examiners, 552 N.W.2d 711, 716 (Minn. 1996) (citations omitted).

Statutory immunity applies "only where the state produces evidence that the conduct was of a policy-making nature involving social, political or economical considerations." Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988). But where a government employee simply implements an established policy, the conduct may be protected by statutory immunity because the challenge is, in effect, to the policy itself. See Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 412-13 (Minn. 1996) (summarizing precedent). Common-law official immunity "involves the kind of discretion which is exercised on an operational rather than a policymaking level." Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992). But the exercise of judgment or discretion does not necessarily confer official immunity. Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997) (denying official immunity to decisions involved in treating mentally ill patients). If a public employee is entitled to official immunity, his employer may be vicariously immune. Id. "[W]hether to extend official immunity to the governmental employer is a policy question." Pletan, 494 N.W.2d at 42.

Because both forms of immunity are exceptions to the general rule of liability, both are construed narrowly. Johnson v. Nicollet County, 387 N.W.2d 209, 211 (Minn. App. 1986) (statutory immunity); Larson v. Independent Sch. Dist. No. 314, 289 N.W.2d 112, 121 (Minn. 1979) (official immunity). The defendant bears the burden of establishing its immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

Application in Instant Case

"A court reviewing immunity issues must examine with particularity the nature of the conduct the plaintiff alleges as the basis of a negligence claim." Watson, 553 N.W.2d at 411. VanDeWalker alleges that (1) the county placed more gravel on the road than county policy allowed and (2) Anderson either did not inspect or negligently inspected the road, so that if warning signs were in fact placed, they were improperly removed. The district court correctly concluded that a public employee has no discretion to violate an established policy, whether or not the policy is written, and that statutory immunity therefore does not apply where an allegation of negligence is based on a violation of policy. See Snyder v. City of Minneapolis, 441 N.W.2d 781, 787 (Minn. 1989) (denying statutory immunity where city officials issued building permit in violation of unwritten city policy, resulting in damages to landowner who had permit revoked after demolishing existing building). Similarly, official immunity applies only where public officials "do not exceed the discretion granted them by law." Janklow, 552 N.W.2d at 716. On the record before us, we agree with the district court that the county failed to meet its burden of establishing that its conduct is protected either by statutory immunity or by official immunity. There is no evidence that any of Anderson's conduct involved the balancing of social, political, or economic factors, and statutory immunity would therefore not apply. See Nusbaum, 422 N.W.2d at 722.

To determine the applicability of official immunity, we must examine the nature of the process by which a government official made a challenged decision in order to determine whether it involved the type of discretion protected by immunity. See Schaeffer v. State, 444 N.W.2d 876, 880-81 (Minn. App. 1989) (affirming denial of statutory immunity where record contained no evidence as to how disputed decision was made). If the official has discretion in making a decision, we must determine whether the challenged decision was within the scope of that discretion. See Janklow, 552 N.W.2d at 716. But the exercise of discretion does not necessarily give rise to official immunity and official immunity does not necessarily give rise to vicarious immunity. See Terwilliger, 561 N.W.2d at 913. Therefore, even if it has been determined that the challenged conduct is of a nature that provides immunity for the individual official, we must decide the policy question of whether a grant of vicarious immunity would further the purposes of official immunity. See Pletan, 494 N.W.2d at 42.

Here, VanDeWalker claims that Anderson lacked the discretion to deviate from standard county practice to an extent that would allow the placement of sufficient gravel that there would be one and one-half to two inches on the roadway a day after the seal-coating and he compounded this alleged violation of policy by either (1) failing to inspect the road prior to removal of warning signs or (2) inspecting the road negligently. VanDeWalker has provided no evidence to contradict Anderson's assertion that he inspected the road. But the record provides no information as to what procedures Anderson was required to follow, what factors he was required to consider, and how much discretion he had. And we cannot determine on the record before us whether Anderson would have exceeded his discretion in pronouncing the road safe if its condition was as VanDeWalker alleges. See Baker v. Chaplin, 517 N.W.2d 911, 916-17 n.8 (Minn. 1994) (noting that court may rule that defendant is not immune if facts are as asserted by plaintiff).

Immunity cannot attach where the facts necessary to establish the immunity are in dispute. See Gasparre v. City of St. Paul, 501 N.W.2d 683, 686-88 (Minn. App. 1993) (upholding denial of summary judgment based on qualified or official immunity where reasonableness of police officer's actions could not be established on record). Here, we know neither the process by which Anderson made the challenged decision nor whether the scope of Anderson's discretion was broad enough to encompass the decision allegedly made. Although Anderson's testimony implies that his inspection procedure involves some discretion and exercise of professional judgment, in the absence of record information describing the procedure, we cannot determine whether Anderson's safety determination with regard to the particular factor that allegedly caused VanDeWalker's injury, the depth of gravel on the road, is based purely on his personal impression or whether it is circumscribed by objective guidelines. And even if a decision as to road safety is purely within Anderson's professional judgment as a general matter, VanDeWalker has produced evidence that county policy would not allow the placement of enough gravel on the road to leave it in the condition to which the police officers testified. We have no information regarding whether Anderson's discretion to pronounce the road safe would have encompassed a decision to leave the road covered with loose gravel in an amount in excess of the amount the county would generally allow to be placed, that is, whether Anderson had the authority to depart to that extent from established county procedures. Cf. Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, 274 (Minn. App. 1996) (granting official immunity where state traffic control manual provided that its guidelines were non-binding and not intended to substitute for traffic engineers' judgment), review denied (Minn. Sept. 20, 1996).

Because we cannot determine the exact nature of the challenged conduct or the scope of discretion involved, we cannot establish whether Anderson's conduct is protected and, if so, whether granting the county vicarious immunity would further the purpose of official immunity. We therefore conclude that Anderson's statements that signs are removed when "we feel" the road is safe provides insufficient information to satisfy the county's burden of proof. ¹

On the present record, we affirm the district court's denial of both statutory and official immunity. We do not intend to preclude the possibility that immunity might properly be granted upon further development of the record. See Baker, 517 N.W.2d at 917-18 n.10 (noting that district court could find immunity upon resolution of disputed factual issues). But we conclude that the district court did not err in determining that the county failed to carry its burden of proof where the record does not contain sufficient evidence to permit an accurate determination of whether immunity applies.

Affirmed.

Short, Judge (dissenting)

I respectfully dissent. VanDeWalker is challenging the seal-coating of Highway 16 by the Steele County Highway Department. The trial court correctly found the county is immune on VanDeWalker's negligence per se claim. See Minn. Stat. § 466.03, subd. 6 (1996) (providing immunity against claims based on the performance or failure to exercise or perform a discretionary function, even if the discretion is abused). However, the trial court erred by denying immunity on VanDeWalker's claims of negligent failure to warn and negligent road maintenance. The undisputed facts show:

(1) in promulgating a road maintenance policy, Steele County balanced safety, roadway conditions, sign inventory and availability, cost, and past historical success

(2) Highway 16 was seal-coated on June 8;

(3) prior to that roadwork, Steele County placed three signs ("Road Work Ahead," "Be Prepared to Stop," and "Fresh Oil") to warn the public of the maintenance work;

(4) these signs remained up for the duration of the job;

(5) pursuant to its policy, the county removed those signs only after the maintenance supervisor made a decision that the seal-coating project was substantially completed and that the roadway was safe for travel; and

(6) on June 9, VanDeWalker was injured when his motorcycle tipped over after he slowed it to navigate a railroad crossing and then accelerated into a curve on Highway 16 near Blooming Prairie.

VanDeWalker's complaint about too much aggregate on the road challenges the county's signage policy and the maintenance supervisor's decision that the roadway was safe. To the extent VanDeWalker's lawsuit challenges the policy, the county is entitled to statutory immunity under Minn. Stat. § 466.03, subd. 6. See Zank v. Larson, 552 N.W.2d 719, 722 (Minn. 1996) (holding city entitled to statutory immunity because determining duration of red clearance signal involved balancing competing safety considerations). To the extent that VanDeWalker challenges the maintenance supervisor's exercise of professional judgment, vicarious official immunity protects the county's actions. See Johnson v. State, 553 N.W.2d 40, 48 (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); 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). Under these circumstances, the trial court erred as a matter of law. I would reverse the trial court's decision and grant the county immunity from suit.

¹ We therefore find this case distinguishable from cases such as Ireland, in which this court had before it a record sufficient to determine both that the challenged conduct was discretionary in nature and that application of immunity would further the purposes behind the official immunity doctrine. See Ireland, 552 N.W.2d at 273.