Thompson v. City of Minneapolis, No. A04-1050 (MN 1/18/2005)

• Decision Date: 18 January 2005
• Docket Number: No. A04-1050.,A04-1050.
• Parties: Kristen Thompson, petitioner, Appellant, v. City of Minneapolis, et al., Respondents, Michael Litz, Respondent.
• Court: Minnesota Supreme Court

Page 1

Unpublished Opinion

Kristen Thompson, petitioner, Appellant, v. City of Minneapolis, et al., Respondents Michael Litz, Respondent.

No. A04-1050.

Court of Appeals of Minnesota.

Filed January 18, 2005.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).

Appeal from the District Court, Hennepin County, File No. PI 03-5005.

Wilbur W. Fluegel, Fluegel Law Office, and

Russell H. Crowder, Barna, Guzy & Steffen, Ltd., (for appellant)

Jay M. Heffern, Minneapolis City Attorney, James A. Moore, Assistant City Attorney, (for respondent City of Minneapolis, et al.)

Phillip Marron, (for respondent Litz).

Considered and decided by Shumaker, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.^*

UNPUBLISHED OPINION

HALBROOKS, Judge

Appellant Kristen Thompson challenges the district court's grant of summary judgment in favor of respondent police officers, contending that because the officers failed to perform a ministerial duty by not continuously operating their vehicle's emergency lights and siren during a vehicular pursuit, they are not entitled to official immunity. Alternatively, appellant argues that even if the officers' actions were discretionary, official immunity should not apply because their conduct was malicious and willful. She also challenges the district court's grant of summary judgment in favor of respondent city, arguing that because the officers are not protected by official immunity, the city is not protected by vicarious official immunity. Because the officers failed to perform a ministerial duty required by the departmental pursuit policy, we conclude that they are not protected by official immunity. We do not reach the question of whether the officers' actions were malicious and willful. Because the officers are not entitled to official immunity, the city is not entitled to vicarious official immunity. Accordingly, we reverse and remand to the district court for further proceedings.

FACTS

On November 29, 2001, Officer Thomas Schmid was driving a Minneapolis Police Department detox van in which Officer Gordon Blackey was a passenger.¹ While driving down Nicollet Avenue in downtown Minneapolis, the officers saw a Ford Bronco driven by Michael Litz run a red traffic light on 4th Street directly in front of them.² Because the officers decided to stop the Bronco, they turned onto 4th Street, and activated the detox van's emergency lights and sirens.

Schmid testified in his deposition that at this point Litz began to pick up speed and drive erratically, running more red lights. The officers followed Litz, but deactivated the detox van's lights and siren except when going through intersections. Both officers testified that they did not consider themselves to be "in pursuit" of Litz.³ Schmid stated that he believed that Litz was fleeing and did not want to be stopped. Schmid was trying to maintain visual contact with Litz's vehicle, get Litz to stop, and arrest him for a traffic violation. According to Blackey, "It was pretty obvious that something was going to happen the way [Litz] was driving. So [the officers] thought [they] would go on the route that [they] thought [Litz] had taken to see his results."

At the intersection of 4th Avenue and 7th Street, Litz ran a red light and struck Thompson, a pedestrian in the crosswalk. Schmid and Blackey arrived at the intersection a short time later. Blackey got out of the detox van and stayed at the scene while Schmid continued searching for Litz, who failed to stop after the accident. Litz was apprehended on foot a short time later after he crashed and abandoned the Bronco.

Thompson sued Schmid, Blackey, and the City of Minneapolis, alleging that, in their pursuit of Litz, the officers operated the detox van negligently and in violation of police-department policy. Respondents moved for summary judgment, contending that the officers are protected by official immunity and that the city is in turn protected by vicarious official immunity. The district court granted respondents' motion. This appeal follows.

DECISION

On appeal from summary judgment, this court asks (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The applicability of immunity is a question of law, which is reviewed de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). The party asserting immunity bears the burden of showing particular facts demonstrating an entitlement to immunity. Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 209 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

I.

A. Failure to Continuously Operate Lights and Siren

Thompson argues that the court erred in holding that the officers are protected from liability by official immunity when the officers did not follow police-department policy requiring continuous operation of their vehicle's emergency lights and siren during police pursuits.⁴ The purpose of official immunity is to "protect[] public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties." Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988). The first step in determining whether the officers are protected by official immunity is to ascertain whether they were performing a discretionary or a ministerial act. See Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998) (noting that the critical issue in official immunity claims is whether the conduct is discretionary or ministerial). A discretionary act "requires the exercise of individual judgment in carrying out the official's duties." Id. Ministerial duties are those that are "absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts." Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (quotation omitted). But if an act is ministerial, this court must determine whether or not the duty to perform that act was properly executed. See Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 660 (Minn. 2004) (stating that "[t]he ministerial-conduct bar to official immunity arises when the allegation is that a ministerial duty was either not performed or was performed negligently").

If an act is discretionary, official immunity attaches unless the conduct was malicious or willful. See Bailey v. City of St. Paul, 678 N.W.2d 697, 700-01 (Minn. App. 2004) (noting that public officials performing discretionary actions in the course of their official duties are protected from liability by official immunity unless those acts are malicious or willful), review denied (Minn. July 20, 2004).

At common law, official immunity protected public officials when they were charged with the execution of discretionary, but not ministerial, duties. Anderson, 678 N.W.2d at 655. In its recent decision in Anderson, the Minnesota Supreme Court held that officials are also sheltered by official immunity when they faithfully execute a ministerial duty.⁵ Id. at 659-60. It is well-established, however, that common law official immunity does not apply "when the liability is alleged to arise from the failure to perform or from the negligent performance of a ministerial duty." Id. at 660.

Respondents contend that the "decisions of police officers to engage in and to continue vehicular pursuit of fleeing criminal suspects are protected by official immunity." Respondents further argue that the failure of the officers to continuously use emergency lights and sirens does not alter the discretionary nature of their actions so as to defeat official immunity.

It is true that police responses in situations such as that presented here constitute emergency situations to which official immunity typically applies. See Nelson v. Wrecker Servs., Inc., 622 N.W.2d 399, 401 (Minn. App. 2001) (stating that police responses in circumstances similar to those here constitute emergency situations in which official immunity usually applies). When an official must make decisions with little time for reflection and on the basis of incomplete information, "[i]t is difficult to think of a situation where the exercise of significant, independent judgment and discretion would be more required." Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992). But such discretion may be conditioned on the performance of a ministerial duty. Nelson, 622 N.W.2d at 403.

In Nelson, this court held that a city policy governing emergency responses could create a ministerial duty for police vehicles to activate sirens and lights before proceeding through a red traffic light. Id. The discretion of officers to disregard traffic lights when responding to emergencies thus depended on the use of such emergency signals. Id. (holding that "the freedom to disregard a semaphore arises only in the event that the driver employs both the siren and lights"). "Without compromising the law in any respect regarding the importance of police discretion in emergency circumstances, there can be no question that immunity may be dependent on ministerial duties." Id. (emphasis added).

Respondents contend that applying the reasoning of Nelson to the present case would "ignore[] significant subsequent precedent to the contrary."⁶ But two of the three cases cited by respondents in support of this proposition actually predate Nelson.⁷ Moreover, all of these cases are distinguishable from the present situation.

In Kari, an ambulance responding to an emergency struck and injured the plaintiff as she attempted to cross a street in a crosswalk. 582 N.W.2d at 923. The plaintiff argued, among other things, that the paramedic driving the ambulance was not entitled to official immunity because he violated a statute requiring all vehicles, including emergency vehicles, to yield to pedestrians in crosswalks. Id. The supreme court found for ...