This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0608
Nicole M. Spargur, Appellant,
vs.
Freeborn County, Respondent.
Filed October 20, 2014 Affirmed Bjorkman, Judge
Freeborn County District Court File No. 24-CV-12-1832
Donaldson V. Lawhead, Austin, Minnesota (for appellant)
Joseph J. Langel, Christian R. Shafer, Ratwik, Roszak & Maloney, P.A., Minneapolis, Minnesota (for respondent)
Considered and decided by Smith, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges summary judgment in favor of respondent county on the
basis of vicarious official immunity. Appellant argues that immunity does not apply because the signage policy at issue does not reflect any real exercise of discretion. We
affirm.
FACTS
On September 27, 2006, a road maintenance crew for respondent Freeborn County
closed a portion of County State Aid Highway (CSAH) 36 to traffic for a one-day
maintenance project, placing a single barricade in the middle of the road at either end of
the closure with a “Road Closed” sign. When appellant Nicole Spargur approached the
road closure early that afternoon, a truck and sudden rain obstructed her view, so she did
not see the “Road Closed” sign in time to stop safely.1 She swerved to avoid the
barricade and lost control of her vehicle, which went off the road and rolled over into the
ditch.
Spargur subsequently initiated this action, alleging that the county was negligent
by failing to erect and maintain adequate signage—specifically, an advance-warning
sign—about the road closure. The county moved for summary judgment on grounds of
statutory immunity, common-law vicarious official immunity, and lack of proximate
cause. The district court rejected the county’s arguments as to statutory immunity and
proximate cause but concluded that the county is entitled to vicarious official immunity
because Spargur’s suit essentially challenges the county’s signage policy, which reflects a
discretionary action. The district court granted summary judgment, dismissing Spargur’s
claims, and Spargur appeals.
1 For purposes of this appeal from summary judgment, we accept Spargur’s factual allegations regarding the circumstances of the accident.
2 DECISION
On appeal from summary judgment, we must determine whether there are any
genuine issues of material fact and whether the district court erred in its application of the
law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We review the evidence
de novo, in a light most favorable to the nonmoving party. Valspar Refinish, Inc. v.
Gaylord’s, Inc., 764 N.W.2d 359, 364 (Minn. 2009).
Whether immunity applies is a legal question, which we review de novo. Gleason
v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998). The party
asserting immunity has the burden of demonstrating entitlement to that defense. Rehn v.
Fischley, 557 N.W.2d 328, 333 (Minn. 1997).
Vicarious official immunity protects a municipality from suit based on the official
immunity of its employee. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316
(Minn. 1998). “Official immunity protects 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.” Gleason, 582 N.W.2d at 220 (quotation omitted). Because official
immunity is intended to protect public officials “from the fear of personal liability that
might deter independent action and impair effective performance of their duties,” it
generally 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) (quotation omitted). But we look to “the precise
governmental conduct at issue” in determining whether there is immunity. Gleason, 582
3 N.W.2d at 219 (quotation omitted). When a lawsuit challenges an official’s ministerial
compliance with an established policy, it is the policy itself that is at issue. Anderson,
678 N.W.2d at 660. In such a circumstance, the question is “whether the adoption of the
protocol was discretionary.” Id. at 661.
It is undisputed that the crew that closed CSAH 36 on the day of Spargur’s
accident followed the county’s signage policy for short-term road closures: When
maintenance required closure of a low-volume roadway for less than one day, the
maintenance crew was required to place a “Road Closed” sign in the middle of the road at
the nearest intersection point on each end of where the work was to take place but was
not required to place advance-warning signs.
The precise governmental conduct at issue here is the adoption of that policy.
County engineer Susan Miller, who joined the highway department in October 1998,
explained that the policy “had been our practice and . . . had worked extremely well for
many, many years prior to me coming to this department and since I have been in this
department.” She also testified that it was her “engineering judgment and the engineering
judgment of the previous engineer . . . that the road closed sign, as we had done for years
for these very short-term closures, was reasonable and appropriate for the work force that
we had and the amount of time and duration that we would be on those roads for those
type of projects.”
Spargur emphasizes these references to the policy’s long tenure, arguing that the
policy was not the result of meaningful judgment or analysis because Miller simply
followed the practice of the former county engineer. Spargur contends this adherence to
4 a prior practice amounts to a failure to exercise discretion and precludes immunity, as in
Larson v. Indep. Sch. Dist. No. 314, 289 N.W.2d 112 (Minn. 1979), and S.W. v. Spring
Lake Park Sch. Dist. No. 16, 580 N.W.2d 19 (Minn. 1998). We are not persuaded.
Neither Larson nor S.W. involved the type of common-law official-immunity
analysis at issue here. See Anderson, 678 N.W.2d at 657 (stating that Larson “mistakenly
relied on statutory immunity standards in an official immunity analysis”); S.W., 580
N.W.2d at 22-24 (rejecting claim of statutory immunity because school district did not
adopt a safety policy but remanding for separate analysis of common-law official
immunity). Official immunity is broader than the statutory immunity addressed in both
of those cases, protecting “discretion exercised at the operational level rather than at the
policy-making level.” S.W., 580 N.W.2d at 23. And undisputed evidence amply
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0608
Nicole M. Spargur, Appellant,
vs.
Freeborn County, Respondent.
Filed October 20, 2014 Affirmed Bjorkman, Judge
Freeborn County District Court File No. 24-CV-12-1832
Donaldson V. Lawhead, Austin, Minnesota (for appellant)
Joseph J. Langel, Christian R. Shafer, Ratwik, Roszak & Maloney, P.A., Minneapolis, Minnesota (for respondent)
Considered and decided by Smith, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges summary judgment in favor of respondent county on the
basis of vicarious official immunity. Appellant argues that immunity does not apply because the signage policy at issue does not reflect any real exercise of discretion. We
affirm.
FACTS
On September 27, 2006, a road maintenance crew for respondent Freeborn County
closed a portion of County State Aid Highway (CSAH) 36 to traffic for a one-day
maintenance project, placing a single barricade in the middle of the road at either end of
the closure with a “Road Closed” sign. When appellant Nicole Spargur approached the
road closure early that afternoon, a truck and sudden rain obstructed her view, so she did
not see the “Road Closed” sign in time to stop safely.1 She swerved to avoid the
barricade and lost control of her vehicle, which went off the road and rolled over into the
ditch.
Spargur subsequently initiated this action, alleging that the county was negligent
by failing to erect and maintain adequate signage—specifically, an advance-warning
sign—about the road closure. The county moved for summary judgment on grounds of
statutory immunity, common-law vicarious official immunity, and lack of proximate
cause. The district court rejected the county’s arguments as to statutory immunity and
proximate cause but concluded that the county is entitled to vicarious official immunity
because Spargur’s suit essentially challenges the county’s signage policy, which reflects a
discretionary action. The district court granted summary judgment, dismissing Spargur’s
claims, and Spargur appeals.
1 For purposes of this appeal from summary judgment, we accept Spargur’s factual allegations regarding the circumstances of the accident.
2 DECISION
On appeal from summary judgment, we must determine whether there are any
genuine issues of material fact and whether the district court erred in its application of the
law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We review the evidence
de novo, in a light most favorable to the nonmoving party. Valspar Refinish, Inc. v.
Gaylord’s, Inc., 764 N.W.2d 359, 364 (Minn. 2009).
Whether immunity applies is a legal question, which we review de novo. Gleason
v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998). The party
asserting immunity has the burden of demonstrating entitlement to that defense. Rehn v.
Fischley, 557 N.W.2d 328, 333 (Minn. 1997).
Vicarious official immunity protects a municipality from suit based on the official
immunity of its employee. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316
(Minn. 1998). “Official immunity protects 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.” Gleason, 582 N.W.2d at 220 (quotation omitted). Because official
immunity is intended to protect public officials “from the fear of personal liability that
might deter independent action and impair effective performance of their duties,” it
generally 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) (quotation omitted). But we look to “the precise
governmental conduct at issue” in determining whether there is immunity. Gleason, 582
3 N.W.2d at 219 (quotation omitted). When a lawsuit challenges an official’s ministerial
compliance with an established policy, it is the policy itself that is at issue. Anderson,
678 N.W.2d at 660. In such a circumstance, the question is “whether the adoption of the
protocol was discretionary.” Id. at 661.
It is undisputed that the crew that closed CSAH 36 on the day of Spargur’s
accident followed the county’s signage policy for short-term road closures: When
maintenance required closure of a low-volume roadway for less than one day, the
maintenance crew was required to place a “Road Closed” sign in the middle of the road at
the nearest intersection point on each end of where the work was to take place but was
not required to place advance-warning signs.
The precise governmental conduct at issue here is the adoption of that policy.
County engineer Susan Miller, who joined the highway department in October 1998,
explained that the policy “had been our practice and . . . had worked extremely well for
many, many years prior to me coming to this department and since I have been in this
department.” She also testified that it was her “engineering judgment and the engineering
judgment of the previous engineer . . . that the road closed sign, as we had done for years
for these very short-term closures, was reasonable and appropriate for the work force that
we had and the amount of time and duration that we would be on those roads for those
type of projects.”
Spargur emphasizes these references to the policy’s long tenure, arguing that the
policy was not the result of meaningful judgment or analysis because Miller simply
followed the practice of the former county engineer. Spargur contends this adherence to
4 a prior practice amounts to a failure to exercise discretion and precludes immunity, as in
Larson v. Indep. Sch. Dist. No. 314, 289 N.W.2d 112 (Minn. 1979), and S.W. v. Spring
Lake Park Sch. Dist. No. 16, 580 N.W.2d 19 (Minn. 1998). We are not persuaded.
Neither Larson nor S.W. involved the type of common-law official-immunity
analysis at issue here. See Anderson, 678 N.W.2d at 657 (stating that Larson “mistakenly
relied on statutory immunity standards in an official immunity analysis”); S.W., 580
N.W.2d at 22-24 (rejecting claim of statutory immunity because school district did not
adopt a safety policy but remanding for separate analysis of common-law official
immunity). Official immunity is broader than the statutory immunity addressed in both
of those cases, protecting “discretion exercised at the operational level rather than at the
policy-making level.” S.W., 580 N.W.2d at 23. And undisputed evidence amply
indicates that Miller exercised operational discretion in evaluating and continuing the
signage policy.
Miller testified that she exercises engineering judgment in determining the type of
signage to be used for a given traffic-control measure. She identified multiple factors
that influence that judgment, including the extent of the traffic disruption (full road
closure versus limited through traffic), the duration the traffic-control measure is in place,
the level of traffic on the affected roadway, and the available departmental resources.
Based on these considerations, Miller concluded that a single barricade sign at the nearest
intersection is sufficient warning for a short-term closure of a low-volume road because
“a reasonable person” can be expected to monitor cross traffic and weather conditions,
observe the sign as he or she approaches, and adjust speed and course accordingly.
5 Spargur argues that this conclusion cannot reflect discretionary judgment or
engineering analysis because it is contrary to the Minnesota Manual of Uniform Traffic
Control Devices. We disagree. First, the manual is a guide, not a mandate. It does not
preclude an official from exercising independent judgment and discretion. Ireland v.
Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 274 (Minn. App. 1996) (noting “the manual’s
express deference to the judgment of engineers in installing traffic control devices”),
review denied (Minn. Sept. 20, 1996). Second, Spargur’s argument implicates the
fundamental rationale for official immunity—to promote independent action and
effective performance of public officials by protecting them from liability. Even if the
manual in effect in 2006 called for advance-warning signs for all road closures, Miller
was entitled to and did exercise her discretion to continue the long-standing policy of
foregoing such signs in favor of other traffic-control measures for very short-term
closures of low-volume roadways. See id. (holding county entitled to vicarious immunity
for engineer’s signage decision contrary to the manual).
In sum, the record establishes that the challenged signage policy was based on
Miller’s operational discretion as county engineer. Accordingly, we conclude the district
court did not err by determining that the county is entitled to vicarious official immunity
and granting the county summary judgment.2
Affirmed.
2 The county urges the alternative argument that summary judgment is justified because there is no evidence as to proximate cause. Because we affirm based on immunity, we decline to address this argument.