                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1448


                                  Lisa Miller, et al.,
                                    Respondents,

                                          vs.

                                 Dan Marosok, et al.,
                                    Defendants,

                         Forest Lake Area High School d/b/a
                          Independent School District #831,
                                     Appellant.


                                 Filed May 18, 2015
                                      Reversed
                                  Bjorkman, Judge


                          Washington County District Court
                             File No. 82-CV-13-5668

James A. Batchelor, Batchelor Law Firm, P.A., Minneapolis, Minnesota; and

Scott Wilson, Minneapolis, Minnesota (for respondents)

William L. Davidson, Timothy J. O’Connor, Peter D. Stiteler, Lind, Jensen, Sullivan &
Peterson, P.A., Minneapolis, Minnesota (for appellant)

      Considered and decided by Reyes, Presiding Judge; Hudson, Judge; and

Bjorkman, Judge.
                       UNPUBLISHED OPINION

BJORKMAN, Judge

      Appellant challenges a partial denial of summary judgment, arguing that it is

entitled to vicarious official immunity and recreational-use immunity with respect to

respondents’ negligent-supervision claim. Because we conclude that vicarious official

immunity extends to the claim, we reverse.

                                       FACTS

      In February 2011, respondent Lisa Miller’s 16-year-old daughter, respondent

McKenna Konze (together Konze), was playing “capture the flag” in a gymnasium

during physical-education class. Teachers Paul Kendrick and Jeff Wilson had combined

their respective classes and the students elected to play the game as a “transitional

activity.” Transitional activities may be used to fill time or accommodate for space

limitations, but are not part of the formal physical-education curriculum. During the

game, Konze collided with fellow student Dan Marosok and was knocked to the floor.

Konze sustained facial fractures and later developed severe headaches as a result of the

accident. Kendrick and Wilson were talking in a hallway connected to the gym when the

accident occurred.1

      Konze sued appellant Forest Lake Area High School (the school district) and

Marosok. She alleged that the school district was negligent in allowing teachers to


1
  Both teachers testified that they were supervising from a mezzanine above the gym.
But on appeal from a denial of summary judgment, we assume that the facts alleged by
the nonmoving party are true. Shariss v. City of Bloomington, 852 N.W.2d 278, 281
(Minn. App. 2014).

                                             2
combine classes, failing to provide adequate training on how to supervise class, and

failing to create a curriculum that limited the risk of transitional activities. Konze also

alleged that Kendrick and Wilson were negligent in combining their classes, allowing

their students to play capture the flag, and failing to supervise the class. The school

district moved for summary judgment, arguing that Konze’s claims are barred based on

statutory immunity, vicarious official immunity, and recreational-use immunity.2

       The district court granted the school district’s motion in part, concluding that the

claims arising from the school district’s conduct are barred by statutory immunity, and

that the claims based on the teachers’ decision to combine classes and choice of

transitional activity are subject to official immunity. But the district court denied the

school district’s motion to dismiss Konze’s negligent-supervision claim, concluding that

the duty to provide adequate supervision is ministerial. The school district appeals.

                                     DECISION

       On appeal from summary judgment, we determine whether there are genuine

issues of material fact and whether the district court erred in applying the law. Gleason v.

Metro. Council Transit Operations, 582 N.W.2d 216, 218-19 (Minn. 1998). 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 also review de novo.

Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). The party asserting immunity has the


2
 Marosok also moved for summary judgment. The district court granted his motion, and
Konze does not challenge that judgment on appeal.

                                             3
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 employees. Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678

N.W.2d 651, 663-64 (Minn. 2004).        Accordingly, we must first determine whether

Kendrick and Wilson are entitled to official immunity before examining whether

immunity also extends to the school district. Fear v. Indep. Sch. Dist. 911, 634 N.W.2d

204, 216 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). Official immunity is

meant to protect public officials “from the fear of personal liability that might deter

independent action and impair effective performance of their duties.” Anderson, 678

N.W.2d at 655 (quotation omitted). But official immunity does not extend to officials

charged with executing ministerial, rather than discretionary functions. Id. Ministerial

functions are “absolute, certain and imperative, involving merely the execution of a

specific duty arising from fixed and designated facts.” Mumm v. Mornson, 708 N.W.2d

475, 490 (Minn. 2006) (quotation omitted).      We look to “the precise governmental

conduct at issue” in determining whether official immunity applies.        Gleason, 582

N.W.2d at 219 (quotation omitted).

      Konze’s negligent-supervision claim is based on the conduct of the two physical-

education teachers. At issue is whether the claim implicates the decision to supervise or

the decision how to supervise. As the school district concedes, the decision to supervise

students is absolute, and not immune from liability. But decisions about how to supervise

students are inherently discretionary because they demand that teachers exercise their


                                           4
professional judgment in response to ever-changing classroom circumstances.            See

Weiderholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (holding

discretionary decisions involve “individual professional judgment that necessarily reflects

the professional goal and factors of a situation”). We turn to Konze’s allegations and the

record with this distinction in mind.

       Examination of Konze’s allegations reveals that they are premised on how the

teachers chose to supervise the students. The complaint alleges, upon information and

belief, that the teachers “did nothing” to supervise the game. But Konze subsequently

clarified her allegations, asserting that the teachers “failed to provide any meaningful

supervision” because they were not paying attention at the time Konze was injured.

Konze specifically alleges that the teachers were standing just outside of the gymnasium

and talking to each other at the time of the collision.

       The undisputed facts are that Kendrick and Wilson decided to combine their

classes and let their students play a game as a transitional activity on the day of the

accident. They helped the students select the game and provided instruction on how it

should be played, warning students to be attentive to their surroundings. The students

used the entire gymnasium floor and the teachers stood together in a hallway just outside

the gymnasium door during the game. Konze saw them talking from her position in the

gymnasium just before the accident, and she assumed that they could see her. The

teachers immediately responded to the accident, reaching Konze within seconds of the

collision.




                                              5
       The record also shows that physical-education teachers at the high school have

discretion regarding how to fulfill their mandatory duty to supervise. The school district

does not have an official protocol that defines how teachers must supervise physical-

education classes. Such a policy could have made the teachers’ supervisory decisions

ministerial. See Anderson, 678 N.W.2d at 659 (explaining sufficiently narrow policy or

protocol governing conduct may create a ministerial duty). And the school district gives

physical-education teachers the discretion to incorporate “transitional activities” into their

classes. Kendrick testified that transitional activities do not need to be approved by the

school district and teachers choose them based on their “experience.”

       Based on our review of Konze’s allegations and the evidence, we conclude that the

negligent-supervision claim implicates protected discretionary conduct. The discretion to

select alternative activities implies that, in the absence of a defined supervision policy,

teachers also have the discretion to choose how best to supervise those activities. Cf.

Fear, 634 N.W.2d at 216 (finding no official immunity in absence of evidence that

supervising teachers were responsible for making decisions regarding recess or playtime

activities). And the active and dynamic nature of physical-education classes requires

teachers to constantly exercise independent judgment regarding how best to supervise

students. The complexity and fluidity of this supervisory environment stands in marked

contrast to the “simple and definite” tasks facing a person charged with a ministerial

duty. Weiderholt, 581 N.W.2d at 316 (quotation omitted). In sum, how Kendrick and

Wilson chose to supervise class was a discretionary act that entitles them to official

immunity.


                                              6
       Having determined that the teachers are entitled to official immunity, we turn to

whether vicarious official immunity extends to the school district. Generally, if a public

official is immune from suit, his or her government employer also enjoys immunity.

Anderson, 678 N.W.2d at 663-64. The decision to grant vicarious official immunity is a

policy question. Olson v. Ramsey Cnty., 509 N.W.2d 368, 372 (Minn. 1993). It is well-

recognized that vicarious official immunity is appropriate when failure to grant it would

focus “stifling attention” on an official’s performance “to the serious detriment of that

performance.” Anderson, 678 N.W.2d at 664 (quotations omitted).

       The unpredictable nature of students and wide variety of activities included in

physical-education curricula demand that teachers have the latitude to choose how to

supervise without fear of second-guessing as to each individual supervisory decision. See

id. (noting vicarious official immunity appropriate “where officials’ performance would

be hindered” by second-guessing in anticipation that government employer would also

sustain liability). Indeed, the threat of legal liability for supervisory decisions could

prompt conscientious physical-education teachers to unnecessarily limit their curricula to

those activities with the lowest possible physical impact. See S.L.D. v. Kranz, 498

N.W.2d 47, 53 (Minn. App. 1993) (holding vicarious official immunity appropriate

where “threat of litigation” and “attendant judicial scrutiny of . . . decisions” could

detrimentally alter how public official carried out responsibilities). Such a response

would be at odds with the school district’s stated goals of encouraging fitness and regular

physical activity, and is the type of counter-productive outcome vicarious official

immunity exists to prevent.


                                            7
       Accordingly, we conclude that it is appropriate to extend vicarious official

immunity to the school district based on the official immunity of Kendrick and Wilson.

Having determined that the school district is entitled to vicarious official immunity, we

need not address whether it is also entitled to recreational-use immunity.

       Reversed.




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