Lommen v. City of East Grand Forks

• Decision Date: 27 September 1994
• Docket Number: No. C9-94-671,C9-94-671
• Citation: 522 N.W.2d 148
• Parties: Sherri LOMMEN, Appellant, v. The CITY OF EAST GRAND FORKS, et al., Respondents.
• Court: Minnesota Court of Appeals

Page 148

522 N.W.2d 148

Sherri LOMMEN, Appellant, v. The CITY OF EAST GRAND FORKS, et al., Respondents.

No. C9-94-671.

Court of Appeals of Minnesota.

Sept. 27, 1994.

Review Granted Dec. 2, 1994.

Syllabus by the Court

Minnesota's law of official immunity applies to Minnesota police officer pursuing fleeing suspect in North Dakota.

Richard A. Ohlsen, Moosbrugger, Ohlsen, Dvorak & Carter, Grand Forks, ND, for appellant.

Barry P. Hogan, Jeffries, Olson, Flom, Oppegard & Hogan, Moorhead, for respondent.

Considered and decided by DAVIES, P.J., SCHUMACHER and AMUNDSON, JJ.

OPINION

DAVIES, Judge.

Sherri Lommen appeals dismissal of her action based on a ruling that Minnesota immunity law, rather than North Dakota law, applies to a Minnesota police officer whose squad car injured her in North Dakota. We affirm.

FACTS

While on patrol in East Grand Forks, respondent Vernon Rasmusson became suspicious of a pickup truck. Officer Rasmusson called in the license number and was informed that the pickup was stolen. Rasmusson then pursued the pickup at high speed across the state line into Grand Forks, North Dakota. While proceeding through a controlled intersection in Grand Forks, Rasmusson collided with a vehicle in which appellant Lommen was a passenger, injuring her.

Lommen filed suit for damages in Minnesota against Rasmusson and his employer, respondent City of East Grand Forks (the City). Respondents moved for dismissal on the basis of immunity. The district court dismissed the suit, concluding that Minnesota immunity law--which would bar Lommen's suit--applies. This appeal followed.

ISSUE

Did the district court err in applying Minnesota's law of immunity?

ANALYSIS

The first issue is "whether the choice of one state's law over another's creates an actual conflict." Jepson v. General Cas. Co. of Wis., 513 N.W.2d 467, 469 (Minn.1994). In the absence of any conflict, the forum may apply its own law. Davis v. Outboard Marine Corp., 415 N.W.2d 719, 723 (Minn.App.1987), pet. for rev. denied (Minn. Jan. 28, 1988).

Under Minnesota law, Officer Rasmusson would be protected by official immunity unless his actions were "willful or malicious," whereas under North Dakota law an officer would be protected unless his actions constituted "gross negligence." ¹ We believe there is some potential (although slight) for the police officer immunity rules of the two states to affect appellant differently. Thus, a choice of law is advisable.

Perhaps more importantly, however, an officer's immunity extends to the employing municipality under Minnesota law. Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn.1992). But in North Dakota the municipality may be liable for a police officer's actions within the scope of employment regardless of the officer's immunity. Binstock v. Fort Yates Pub. Sch. Dist. No. 4, 463 N.W.2d 837, 842 (N.D.1990) (chapter 32-12.1 does not immunize municipalities from "injuries caused by employees acting within the scope of their employment"). Accordingly, we conclude that, as to municipal immunity, there is undoubtedly a conflict that makes a choice of law necessary.

The next consideration is whether "the law of both states can be constitutionally applied." Jepson, 513 N.W.2d at 469. Under existing constitutional restraints, to apply the law of a particular state,

that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.

Allstate Ins. v. Hague, 449 U.S. 302, 312-13, 101 S.Ct. 633, 640, 66 L.Ed.2d 521 (1981). Here, there are sufficient contacts with North Dakota and Minnesota to justify--against constitutional attack--applying the law of either state.

To make the actual choice of law, Minnesota has adopted Professor Robert A. Leflar's approach. Milkovich v. Saari, 295 Minn. 155, 161, 203 N.W.2d 408, 412 (1973). Leflar identified five choice-influencing considerations: (1) predictability of result, (2) maintenance of interstate order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interest, and (5) application of the better rule of law. Id. The relative importance among the five considerations will vary according to the particular legal issue. Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267, 282 (1966) [hereinafter, Leflar, Considerations ].

The Leflar approach requires courts to critically analyze each case and, "to be true to the method rather than to seek superficial factual analogies between cases." Jepson, 513 N.W.2d at 470. Thus, the task here is to identify and evaluate the meaningful contacts with respect to the actual issue (the rules in conflict). Although this case arises from an auto accident, the conflict concerns rules of governmental immunity.

1. Predictability of Result

The objective of the predictability factor is to fulfill the parties' justified expectations. Leflar, Considerations, supra, at 297. Tort actions generally do not implicate party expectations because torts stem from unplanned accidents. Jepson, 513 N.W.2d at 470. Lommen argues, however, that she had a valid expectation that North Dakota law would apply to accidents within North Dakota. This argument erroneously assumes that citizens plan their motoring activities with knowledge of, and reliance upon, doctrines of immunity and a territorialist choice-of-law methodology.

Lommen's related argument--based on North Dakota statutes concerning vehicular operation--that as a North Dakota citizen she had an "expectation" that she would not be exposed to dangerous police activities absent a means of recovery, is also meritless because North Dakota's own immunity law often precludes recovery.

In contrast, we believe that Rasmusson (and East Grand Forks) had a substantial expectation of on-the-job tort immunity. Police officers understand that they enjoy a certain amount of immunity in performing their jobs. We are reluctant to change the rules of immunity when officers cross state lines; to do so would compromise the efficacy of interstate pursuits.

Lommen argues that Rasmusson might have expected that North Dakota laws would apply once he knowingly entered North Dakota. But a police officer's willingness to pursue suspects across state lines should not be restricted by a rule that would subject the officer to differing standards of immunity based on the fortuitous fact of where someone is injured. Lommen's argument wrongly assumes that Minnesota police officers (and the employing municipality) expect that a strictly territorialist choice-of-law methodology will necessarily control any issue stemming from an accident in another state.

Thus, we believe that this consideration points toward application of Minnesota law.

2. Maintenance of Interstate Order

This next factor primarily concerns,

whether the application of Minnesota law would show manifest disrespect for North Dakota's sovereignty or impede the interstate movement of people and goods.

Jepson, 513 N.W.2d at 471.

In this case, application of Minnesota law would not affect the interstate flow of goods. Nor do we think that application of Minnesota law would constitute an affront to North Dakota's sovereignty; Minnesota's interest in providing limited immunity for its officials and cities is sufficiently apparent that North Dakota would not be offended by application of Minnesota law.

The dissent argues that application of Minnesota law ignores North Dakota's interest in the compensation of its injured residents. We recognize that North Dakota has a valid interest in the compensation of a North Dakota resident. But North Dakota's own immunity law already significantly limits North Dakota's compensatory interest. And application of Minnesota law would not license Minnesota officers to injure North Dakota residents with impunity; Minnesota's immunity doctrine is limited by the "willful and malicious" standard--one that is probably not that different from North Dakota's "gross negligence" standard. ²

It is interesting that North Dakota does not follow the territorialist ("lex loci") approach under which rules of the jurisdiction where the accident occurred are applied exclusively, but rather, makes choices issue-by-issue. And North Dakota, like Minnesota, employs the Leflar approach to make those issue-by-issue choices. Vigen Constr. v. Millers Nat'l Ins., 436 N.W.2d 254, 256 (N.D.1989). We believe a North Dakota court, applying the Leflar methodology, would likely also choose Minnesota immunity law. Thus, North Dakota should not be offended by our application of the Minnesota rule. And application of Minnesota law is not inconsistent with the Jepson directive to "strive to sustain, rather than subvert, each other's interests in areas where their own interests are less strong." Jepson, 513 N.W.2d at 471.

One particular concern in choice-of-law methodology is to minimize forum shopping designed to influence choice of law. Id. The City asserts that Lommen might have filed suit in Minnesota to avoid North Dakota's seat belt defense and because North Dakota does not provide for joint and several liability; the City argues that Minnesota law should thus apply simply because Lommen voluntarily chose the Minnesota forum. To the extent Lommen may have been forum shopping, we note that we do not prefer Minnesota law on any substantive issue simply because Minnesota is the forum. See Robert A. Leflar, American Conflicts Law § 90, at 182 (3d ed. 1977) ("Mere forum preference, as such and by itself, is not a valid reason for any choice-of-law result." (emphasis in original)). Choice of forum ought not determine choice of law.

3. Simplification of the Judicial Task

This next factor concerns the forum court's ability to discern and apply the law of another state as compared to its own law. This factor largely focuses on the necessity of allowing the forum state to apply its own...