Christine L. Rathbun v. Fillmore County

• Court: Court of Appeals of Minnesota
• Decided: June 17, 2024
• Docket: a231831
• Status: Published

Opinion

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA IN COURT OF APPEALS A23-1831

Christine L. Rathbun, Respondent,

vs.

Fillmore County, Appellant.

Filed June 17, 2024 Affirmed Frisch, Judge

Fillmore County District Court File No. 23-CV-22-296

Andrew L. Davick, Derek I. Stewart, Meshbesher & Spence, Ltd., Rochester, Minnesota (for respondent)

Kenneth H. Bayliss, Elle M. Lannon, Quinlivan & Hughes, P.A., St. Cloud, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and

Frisch, Judge.

NONPRECEDENTIAL OPINION

FRISCH, Judge

Appellant-county challenges the district court’s summary-judgment determination

that the county is not immune from a personal-injury suit arising out of the county’s

allegedly negligent failure to maintain a road or warn of a roadway hazard. Because the county did not meet its burden to establish it is immune from suit based on vicarious official

immunity or statutory immunity as a matter of law, we affirm.

FACTS

The relevant facts in this appeal are undisputed. On June 8, 2020, respondent

Christine L. Rathbun stepped into a hole and fell while walking on County State-Aid

Highway 8 (Highway 8) in Fillmore County. Because Highway 8 does not have a sidewalk,

Rathbun was walking on the road near the curb. The hole measured approximately two

feet by one foot and was not marked as a hazard.

Rathbun sued appellant Fillmore County for negligence, alleging that the county

breached its duty to inspect and maintain Highway 8 and breached its duty to warn of a

dangerous condition. The county moved for summary judgment, arguing that it (1) did not

have actual or constructive notice of the hole, (2) was entitled to statutory immunity under

Minn. Stat. § 466.03 (2022), and (3) was entitled to vicarious common-law official

immunity. The county submitted deposition testimony from county engineer Ronald

Gregg and county maintenance superintendent Brent Kohn, both of whom explained their

duties relating to county roadway maintenance. Both Gregg and Kohn discussed the

county’s practice of not inspecting for roadway defects and the county’s response to

complaints of roadway defects. The county does not keep records of complaints or its

response to such complaints. Kohn typically responds to complaints by dispatching a team

to assess and potentially repair reported defects.

The county submitted a declaration from Gregg in which he set forth county policy

regarding general schedules for road repair and reconstruction and noted fiscal constraints

2 on the county resulting in “[o]bsolete roads requir[ing] more patching, pothole filling and

other maintenance as they age.” Gregg also noted the county’s practice of prioritizing road

repairs in driving lanes. Finally, Gregg averred that after Rathbun commenced this action,

he inspected the hole at issue and confirmed that it is “not the type of condition that the

County would repair prior to roadway reconstruction.” After a hearing, the district court

denied the county’s motion for summary judgment.

The county appeals.

DECISION

The county argues that the district court erred by concluding that Rathbun’s claims

against the county were not barred by statutory immunity or vicarious official immunity as

matters of law. Summary judgment is appropriate if the moving party shows that “there is

no genuine issue as to any material fact” and that the moving party is “entitled to judgment

as a matter of law.” Minn. R. Civ. P. 56.01. “[D]enial of a motion for summary judgment

is not ordinarily appealable, [but] an exception to this rule exists when the denial of

summary judgment is based on rejection of a statutory or official immunity defense.”

Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004).

We review de novo whether immunity applies to the relevant governmental entity and its

officials. Shariss v. City of Bloomington, 852 N.W.2d 278, 281, 284 (Minn. App. 2014)

(applying de novo review to an assertion of vicarious official immunity); Conlin v. City of

Saint Paul, 605 N.W.2d 396, 400 (Minn. 2000) (applying de novo review to an assertion

of statutory immunity). And the party asserting immunity bears the burden of proving it is

3 entitled to that immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). We

address each assertion of immunity in turn.

I. The district court did not err in determining that the county failed to meet its burden to prove that it is entitled to vicarious official immunity.

The county argues that the district court erred in concluding that the record did not

establish that the county was entitled to vicarious official immunity. Common-law official

immunity prevents a suit for damages against a public official when the alleged harm

resulted from actions by the public official requiring their judgment or discretion.

Schroeder v. St. Louis County, 708 N.W.2d 497, 505 (Minn. 2006). This protection may

extend to a government entity through vicarious official immunity, even where an

individual government official is not named in the suit. Wiederholt v. City of Minneapolis,

581 N.W.2d 312, 316-17 (Minn. 1998) (noting that to deny a government employer

vicarious immunity where the acting official was not named in the suit would allow

plaintiffs to defeat immunity by declining to name the official as a defendant).

To determine whether an individual is entitled to official immunity, we identify the

“the conduct at issue” and determine whether this conduct “is discretionary or ministerial.”

Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014). A ministerial duty

compels a public official to take a certain action under a given set of circumstances. Mumm

v. Mornson, 708 N.W.2d 475, 490 (Minn. 2006); see also Wiederholt, 581 N.W.2d at 315

(defining ministerial duties as those with no room for discretion and that are “absolute,

certain, and imperative” (quotation omitted)). A duty is discretionary “if it involves more

individual professional judgment that necessarily reflects the professional goal and factors

4 of a situation.” Mumm, 708 N.W.2d at 490-91 (quotation omitted). If a public official’s

conduct is discretionary, they are protected by official immunity provided they did not act

willfully or maliciously. See Schroeder, 708 N.W.2d at 505.

In her complaint, Rathbun challenges the county’s conduct in inspecting and

maintaining Highway 8. 1 The county argues that Gregg, the county engineer, is entitled to

official immunity—and the county vicarious official immunity—because he exercised

discretion in decisions regarding maintenance and inspection of Highway 8. We disagree

that the evidence presented by the county establishes that it is entitled to vicarious official

immunity.

The county presented no evidence that Gregg or any other county employee made

any decision regarding the road or pothole at issue. The record reflects that the county was

unaware of the defect in Highway 8, did not inspect that area for such defects, and

according to county practice, would not have done so unless a citizen complained about

the defect. Without any evidence showing that a county official engaged in any conduct

or made any decision with respect to the road or hazard at issue, the county failed to meet

its burden to show that it engaged in a discretionary act entitled to immunity.

1 We note that the complaint sets forth two negligence theories—the county’s failure to properly inspect and maintain Highway 8 and its failure to warn of a dangerous condition. Because the record does not reflect that the county had actual notice of the hole, we construe Rathbun’s failure-to-warn claim as a challenge to the county’s policy not to inspect roads to discover potential hazards and thus within the scope of her inspection-and- maintenance claim. See Zaske ex rel. Bratsch v. Lee, 651 N.W.2d 527, 532-33 (Minn. App. 2002) (construing a claim imputing notice to a county as a claim that a stop sign should have been inspected and therefore a “direct attack” on a county inspection policy), rev. denied (Minn. Dec. 17, 2002).

5 Even if a county official were to have made a decision about Highway 8 or the hole,

the undisputed record submitted by the county reflects that such a decision would not

involve the exercise of any discretion by a county official. In Gregg’s declaration, he

attested that, after Rathbun’s fall, he personally inspected the hole in Highway 8 and found

it to be “not the type of condition that the County would repair prior to roadway

reconstruction.” Stated differently, the county engineer’s explanation suggests that any

response by the county to the hole would have been predetermined and thus require no

exercise of individual professional judgment by a county official. Mumm, 708 N.W.2d at

490.

The county argues that it is entitled to vicarious official immunity even if we

conclude that its acts are ministerial because its employees carried out an act according to

policy and the adoption of the policy itself was discretionary. See Anderson, 678 N.W.2d

at 661 (concluding that official immunity applied to a teacher whose action was ministerial

but enactment of the policy making such a decision ministerial “involved the exercise of

the staff’s professional judgment as educators and woodworkers”). Even assuming that the

county has adopted a “policy,” the county is not entitled to such immunity here because it

presented no evidence that the adoption of its practices involved the exercise of any

professional judgment. The county presented no evidence as to how Gregg or any other

official made any decision that resulted in the adoption of its practices. It is true that Gregg

attested that “budgetary constraints have compelled [him] to make difficult decisions about

the allocation of resources between competing interests,” but he did not assert that such

decision-making led to the county’s practices. And although Gregg identified the county’s

6 practices, including that “[t]he County has a practice of filling potholes,” “does not have a

written policy” requiring “surveillance of roadways for defects,” and that his department

would have followed “[t]he County’s standard practice and procedure” regarding repairs,

none of these assertions evidence discretionary decision-making by county officials. 2

Finally, even if Gregg were entitled to official immunity, the county has not met its

burden to demonstrate that it is vicariously immune from suit. The purpose of vicarious

official immunity is to protect government officials from having to second-guess their

decisions for fear of exposing their employer to liability. Anderson, 678 N.W.2d at 664.

Vicarious immunity is generally afforded to municipal employers if the employee is

entitled to official immunity for their actions. Sletten v. Ramsey County, 675 N.W.2d 291,

300-01 (Minn. 2004). But in limited circumstances, a government entity can be held liable

despite the public official being immune. See S.W. v. Spring Lake Park Sch. Dist. No. 16,

592 N.W.2d 870, 877 (Minn. App. 1999) (refusing to extend vicarious immunity to school

district despite the discretionary actions of school employees because the district failed to

design a security policy that governed the employees’ responsibilities to protect children

from assault), aff’d, 606 N.W.2d 61 (Minn. 2000); Sletten, 675 N.W.2d at 306 (declining

to extend vicarious immunity to a county for the mixed ministerial and discretionary

2 To the extent that the county argues that it is entitled to vicarious official immunity through the existence of a policy or practice alone, this argument essentially suggests that the county is entitled to sovereign immunity—a common-law doctrine preventing lawsuits against the state and its subdivisions without its consent. But this doctrine does not apply to ministerial conduct of subdivisions of the state. Spanel v. Mounds View Sch. Dist. No. 621, 118 N.W.2d 795, 803 (Minn. 1962); see generally Nusbaum v. Blue Earth County, 422 N.W.2d 713, 717-18 (Minn. 1988) (detailing history of sovereign immunity in Minnesota).

7 actions of its workers where the lack of immunity “would not deter” the workers’

performance but would encourage compliance with “governmental permits, operating

requirements, and facility design limitations”). “Ultimately, the extension of vicarious

official immunity is a policy question for the court.” Schroeder, 708 N.W.2d at 508.

The county offers no principled basis as to why it is entitled to vicarious official

immunity. It instead simply claims that “there is no policy reason that official immunity

should not be extended to the County itself.” This assertion does not satisfy the county’s

affirmative burden to demonstrate its entitlement to immunity. See Rehn, 557 N.W.2d at

333 (noting that a defendant asserting immunity “bears the burden of proving [it] fits within

the scope of the immunity”). The county does not argue that the absence of immunity

could hinder the performance of county employees. See Schroeder, 708 N.W.2d at 508

(extending vicarious official immunity to the county because its staff used “collective

knowledge and experience” to craft policy, and failing to grant immunity would discourage

the county staff from doing so in the future). Nor does the county argue the absence of

immunity would “create a disincentive to use collective wisdom” in creating protocols and

policies. See Anderson, 678 N.W.2d at 664-65 (extending vicarious immunity to a school

to avoid bringing “stifling attention” to the actions of individual teachers (quotation

omitted)). Because the county failed to satisfy its burden to demonstrate its entitlement to

vicarious official immunity, we cannot conclude that the county is immune from Rathbun’s

suit on official immunity grounds.

8 II. The district court did not err in determining that the county failed to meet its burden to prove that it is entitled to statutory immunity.

The county contends that the district court erred in concluding that the county was

not entitled to statutory immunity. Generally, “every municipality is subject to liability for

its torts and those of its officers, employees and agents acting within the scope of their

employment or duties whether arising out of a governmental or proprietary function.”

Minn. Stat. § 466.02 (2022); see also Conlin, 605 N.W.2d at 400. But political

subdivisions are immune from 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.” Minn. Stat. § 466.03, subd. 6. This exception for discretionary functions is

interpreted narrowly. Conlin, 605 N.W.2d at 400; see also Cairl v. State, 323 N.W.2d 20,

23 (Minn. 1982) (noting that statutory immunity is narrowly construed because it is an

exception to the general rule of governmental liability).

“The purpose of statutory immunity is to protect the legislative and executive

branches from judicial second-guessing of certain policy-making activities through the

medium of tort actions.” Schroeder, 708 N.W.2d at 503. “Statutory immunity is extended

when there has been a planning-level decision; that is, social, political, or economic

considerations have been evaluated and weighed as part of the decision-making

process.” Id. at 504. “Statutory immunity does not extend to operational-level decisions,

those involving day-to-day operations of government, the application of scientific and

technical skills, or the exercise of professional judgment.” Id. The government must

“produce[] evidence that the conduct was of a policy-making nature.” Id.

9 The county argues that it produced evidence establishing that its decisions regarding

the maintenance and repair of Highway 8 “are policy level decisions requiring

consideration of social, economic, and political factors.” The county relies on Gregg’s

declaration in which he details county practices regarding roadway repair including that

“[t]he County has a practice of filling potholes,” “does not have a written policy” requiring

inspection of roadways for defects, and that his department would have followed “[t]he

County’s standard practice and procedure.” Gregg generally noted the effect of budgetary

constraints in his decision-making regarding roadway repair and reconstruction schedules,

but he did not assert that such decision-making resulted in any county practice.

The county failed to meet its burden to show that these decisions were of a policy-

making nature and the result of “the balancing of social, economic, or political

considerations.” Schroeder, 708 N.W.2d at 505. The evidence submitted by the county is

too conclusory to satisfy the county’s burden that it is entitled to immunity. See Conlin,

605 N.W.2d at 399, 402-03 (determining that affidavits detailing a city’s decision-making

process were conclusory where they “merely identif[ied] generalized concerns and

seemingly parrot[ed] back language for our case law without incorporating specific facts

demonstrating that a decision was in fact made”). The county submitted no evidence as to

its decision-making process, planning-level considerations, or whether or how county

officials weighed policy considerations. The record lacks any memoranda, letters, or

meeting minutes, for example, examining the county’s decisions, discussing alternatives,

or reflecting an assessment of the cost of enacting its procedures as compared to other

options. See Schroeder, 708 N.W.2d at 505. And the information offered by the county

10 does not include a system of rating roads for suitability or describe a committee decision-

making process like what we concluded demonstrated a balancing of competing political,

social, and economic factors in Minder v. Anoka County, 677 N.W.2d 479, 484-85 (Minn.

App. 2004).

Because the county produced no evidence as to any policy considerations and

procedures that guided the county’s actions, it did not meet its burden to show its

entitlement to statutory discretionary immunity. See Rehn, 557 N.W.2d at 333 (noting that

a defendant relying on an immunity “bears the burden of proving [it] fits within the scope

of the immunity”).

The district court did not err in denying the county’s motion for summary judgment

on vicarious official immunity or statutory immunity grounds. 3

Affirmed.

3 We understand that this matter is ongoing in the district court. Our opinion regarding the county’s entitlement to immunity is based on the limited record presented to the district court at summary judgment. We express no opinion as to whether the county may be able to later produce evidence in satisfaction of its burden to establish an entitlement to immunity.