                           This opinion will be unpublished and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
                                      A15-0694

                                   Justin K. Ayers, et al.,
                                        Respondents,

                                             vs.

                                 John William Kalal, et al.,
                                       Appellants.

                                 Filed December 21, 2015
                                        Affirmed
                                      Harten, Judge

                                Dakota County District Court
                                File No. 19HA-CV-14-2487

Christopher L. Goodman, Anderson, Helgen, Davis & Cefalu, P.A., Minneapolis,
Minnesota (for respondents)

Patrick L. Arneson, League of Minnesota Cities, St. Paul, Minnesota (for appellants)

         Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and Harten,

Judge.

                          UNPUBLISHED OPINION

HARTEN, Judge

         Appellants, a city and its employee, challenge the district court’s denial of their

motion for summary judgment dismissing the personal-injury claims arising out of the



 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
collision of a city snow plow with respondent’s van, based on the district court’s

conclusions that summary judgment is precluded by genuine issues of material fact and

that appellants are not entitled to summary judgment on the basis of common-law official

immunity and vicarious official immunity or to statutory snow and ice immunity as a matter

of law. Because we see no error of law in the district court’s conclusions, we affirm.

                                          FACTS

       About 6:45 a.m. on 11 January 2011, respondent Justin Ayers was driving south on

Highway 13. As he approached the intersection of Highway 13 with Horizon Drive to the

east and 117th Street to the west, a snow plow driven by appellant John Kalal, an employee

of appellant City of Burnsville (the city), stopped at the stop sign on Horizon drive, then

proceeded across the northbound lanes of Highway 13, across the median, and into the

southbound lanes, where it collided with respondent’s van. It is undisputed that the van

had the right of way.1

       Respondents brought this action against appellants, alleging that Kalal’s negligence

and violation of traffic laws caused the accident and that the city was vicariously liable for

Kalal’s acts. Appellants moved for summary judgment, alleging that they were protected

from liability under common-law official immunity and vicarious official immunity or, in



1
  The state patrol accident report reads: “Vehicle 1 (City of Burnsville plow) was
westbound on Horizon Drive and wanted to cross over Highway 13 to 117th st[reet].
Vehicle 1 attempted to go through the intersection and did not see vehicle 2 [respondent’s
van]. Vehicle 2 was southbound on Highway 13 in the right lane and had the right of way.
Vehicle 1 failed to yield the right of way and crashed into vehicle 2.” (Capitalization
omitted.)



                                              2
the alternative, under Minn. Stat. § 466.03, subd. 4 (2014) (conferring on municipalities

immunity from liability for claims “based on snow or ice conditions on any highway”).2

       Following a hearing, appellants’ summary judgment motion was denied. They

challenge the denial.

                                     DECISION

       This court reviews de novo a district court’s summary judgment decision,

determining “whether the district court properly applied the law and whether there are

genuine issues of material fact that preclude summary judgment.” Riverview Muir Doran,

LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010).

       Having found conflicting testimony as to “whether . . . Kalal saw [the van] before

proceeding across Highway 13” and as to “the road conditions at the time of the accident,”

the district court noted in its memorandum that

              [s]ummary judgment is therefore not appropriate at this time.
              There are numerous material facts in dispute, as set forth in the
              findings, which are suitable for the trier of fact. [Moreover,
              appellants] are not entitled to judgment as a matter of law. As
              a result, the court is compelled to deny [appellants’] motion for
              summary judgment.




2
  Appellants also sought summary judgment on the grounds that they were entitled to
discretionary immunity under Minn. Stat. § 466.03, subd. 6 (2014), and that they had no
duty to comply with traffic laws under Minn. Stat. § 169.035, subd. 1 (2014). The district
court denied summary judgment on these grounds, and appellants do not challenge the
denials.


                                             3
1.     Genuine Issues of Material Fact

       Genuine issues of material fact preclude summary judgment on the claims of

common-law official immunity and vicarious official immunity. First, there is a genuine

issue of material fact as to whether Kalal saw the van. The record reflects that, after the

accident, four witnesses, including the state trooper, heard him say that he did not see it,

but during the lawsuit he has consistently maintained that he did see it. There is another

genuine issue of material fact as to whether Kalal was engaged in sanding and salting the

road when the accident occurred. These fact issues preclude summary judgment. See

Thompson v. City of Minneapolis, 707 N.W.2d 669, 673 (Minn. 2006) (reversing summary

judgment based on official immunity because there were “competing versions” of the facts

as to what actually happened).

       A genuine issue of material fact also precludes summary judgment on the claim of

statutory ice and snow immunity. See Minn. Stat. § 466.03, subd. 4 (2010) (providing that

municipalities are immune from liability for claims “based on snow or ice conditions on

any highway . . . .”). Here, the facts as to the condition of Highway 13 have yet to be

developed. As the district court concluded, “there is a genuine fact dispute as to the

conditions of Highway 13 at the time of the accident.”3 Therefore, summary judgment on

the statutory-immunity claim is precluded. See J.E.B. v. Danks, 785 N.W.2d 741, 751




3
 Appellants assert in their brief that “the evidence shows that it was indeed snowing at the
time of the accident[,]” while respondents quote an eyewitness’s testimony that “it did not
start snowing until after the collision” and the road was “wet but very clear . . . [with] no
snow on it.”
                                             4
(Minn. 2010) (in the statutory-immunity context, reversing summary judgment because

there was a genuine fact dispute on whether a report of abuse had been filed in good faith).4

       The district court correctly determined that genuine issues of material fact precluded

summary judgment on both the claim of common-law official immunity/vicarious official

immunity and the claim of statutory snow and ice immunity.

2.     Judgment as a Matter of Law

       The district court also denied summary judgment on the common-law official

immunity/vicarious official immunity claims because “[appellants] are not entitled to

judgment as a matter of law.”

              Whether official immunity applies turns on (1) the conduct at
              issue; (2) whether the conduct is discretionary or ministerial
              and, if ministerial, whether any ministerial duties were
              violated; and (3) if discretionary, whether the conduct was
              willful or malicious. . . .
                     But common law immunity does not protect officials
              when they are charged with the execution of ministerial, rather
              than discretionary, functions.




4
  In arguing that they are entitled to statutory ice and snow immunity, appellants rely on In
re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 549 (Minn. App. 1997), review
denied (Minn. June 26, 1997), and Koen v. Tschida, 493 N.W.2d 126, 128 (Minn. App.
1992) (same), review denied (Minn. Jan. 28, 1993), both of which found snow and ice
immunity under Minn. Stat. § 446.03, subd. 4. But a claimant seeking to avoid statutory
snow and ice immunity “must show that a snow or ice condition leading to an accident was
‘affirmatively caused by [a] negligent act, rather than just nature.’” Alexandria, 561
N.W.2d at 549 (quoting Koen, 493 N.W.2d at 128). Appellants’ reliance is misplaced;
even though the facts as to the cause of the accident here have not been established, both
cases are distinguishable. In Alexandria, the accident was caused by white-out conditions
created by a snow plow. 561 N.W.2d at 545. In Koen, the accident was caused by a driver
losing control of his car on a patch of ice, sliding across the center line, and hitting another
car, which was then also hit by a pickup truck; no snow plow was involved. 493 N.W.2d
at 127. Nothing comparable has been alleged as the cause of this accident.
                                               5
Shariss v. City of Bloomington, 852 N.W.2d 278, 281 (Minn. App. 2014) (affirming

summary judgment denying official immunity and vicarious official immunity after

concluding that backing up a snow plow to give a school bus room to pass was a ministerial

function) (quotation marks and citations omitted). The district court concluded that Kalal’s

function in driving a snow plow across Highway 13 was ministerial: “Kalal faced the

simple task of crossing a road that require[d] him to yield . . . the right of way” and the city

“had a policy that require[d] all plow operators to obey all traffic laws.”

       “As we have said many times, immunity analysis must focus on the particular

conduct at issue.” Id. at 283 (quotation omitted). The particular conduct at issue here was

driving a snow plow from Horizon Drive across Highway 13 to 117th Street. Kalal was

not plowing Highway 13; it had already been plowed prior to the collision. Kalal had

driven snow plows across the intersection hundreds of times, and his supervisor testified

that deciding when to proceed across Highway 13 is a simple and definite task.

       “[The] mere existence of some degree of judgment or discretion will not necessarily

confer common law official immunity; rather, the focus is on the nature of the act at issue.”

Id. at 282 (quotation omitted). Here, the act at issue was not plowing the snow: it was

driving a snow plow across Highway 13. Every driver crossing a highway on a city street

must exercise some judgment as to when it is safe to cross a highway. See Schroeder v. St.

Louis Cnty., 708 N.W.2d 497, 506-08 (Minn. 2006) (concluding that a road grader

operator’s decision to operate after sunset without activating his lights was “clearly

ministerial,” although his decision to grade against traffic was discretionary).

Analogously, a snow plow operator’s decisions to operate after sunset without activating


                                               6
the vehicle’s lights or to cross a highway without waiting for oncoming traffic would be

“clearly ministerial,” although the decision to plow against traffic would be discretionary.

       Because driving a snow plow across a highway is not a discretionary act, appellants

are not entitled to judgment as a matter of law on the basis of common-law official

immunity and vicarious official immunity.

       Both because genuine issues of material fact preclude summary judgment and

because appellants were not entitled to judgment as a matter of law, we affirm the denial

of summary judgment.

       Affirmed.




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