                        This opinion will be unpublished and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
                                   A14-1624

                                   Gholamreza Kian,
                  Trustee for the Next of Kin of Sean Kian, Decedent,
                                       Appellant,

                                          vs.

                              City of Minnetonka, et al.,
                                    Respondents.

                                 Filed June 15, 2015
                                      Affirmed
                                   Chutich, Judge
                            Dissenting, Rodenberg, Judge

                           Hennepin County District Court
                             File No. 27-CV-13-18976

Steven Meshbesher, Richard Student, Meshbesher & Associates, P.A., Minneapolis,
Minnesota (for appellant)

Paul D. Reuvers, Andrea B. Smith, Iverson Reuvers Condon, Bloomington, Minnesota
(for respondents)


      Considered and decided by Smith, Presiding Judge; Rodenberg, Judge; and

Chutich, Judge.

                       UNPUBLISHED OPINION

CHUTICH, Judge

      While responding to an emergency call, Minnetonka Police Officer Daniel

Aschenbrener speeded through a red light and struck Sean Kian’s car. The collision
killed Kian. Appellant Gholamreza Kian, trustee for the next of kin of Sean Kian,

brought a wrongful-death action against respondents City of Minnetonka (the city) and

Officer Aschenbrener.     The district court granted summary judgment to Officer

Aschenbrener under the doctrine of official immunity and to the city on vicarious official

immunity. Kian challenges the district court’s decision, arguing that a genuine issue of

material fact exists as to whether Officer Aschenbrener’s actions were not covered by the

doctrine of official immunity because they were willful and malicious. Because, as a

matter of law, the willful-and-malicious exception does not apply under the facts present

here, we affirm.

                                        FACTS

      The facts underlying the fatal car crash are as follows. At approximately 9:30

p.m. on December 4, 2012, police received a 911 call regarding a young male with a

history of aggression who was acting out of control and pushing family members.

Officer Aschenbrener responded to the call and en route to the emergency turned on his

police car’s emergency lights and the Opticom emitter.1

      While he was traveling westbound on Excelsior Boulevard to the emergency,

Officer Aschenbrener learned that the young male appeared to be on drugs, had been

committed to a psychiatric ward twice in the past year, and was looking for a gun to shoot

himself. This report prompted Officer Aschenbrener to increase his speed. Officer

Aschenbrener’s police car video showed cars pulling over to the side of the road upon his


1
   The Opticom emitter allows emergency vehicles to gain a temporary right of way
through intersections by communicating with traffic lights.
                                            2
approach, and it showed that the roadways were dry, the night was clear, and traffic was

relatively light.

       Excelsior Boulevard has a posted speed limit of 40 miles per hour, and Officer

Aschenbrener was traveling approximately 75 miles per hour six seconds before reaching

the Woodland Road/Excelsior intersection. When Officer Aschenbrener approached the

intersection, the video showed that the stoplight facing him was red, and the Opticom was

solid white, demonstrating that it had started the light change sequence.

       Sean Kian was traveling northbound on Woodland toward the intersection with

Excelsior.    A large church sign obscured the approach of Kian’s car from Officer

Aschenbrener’s view. As Kian approached the intersection, the light facing him turned

yellow, and the Opticom was flashing white. When Kian entered the intersection, the

stoplight turned red and the Opticom continued flashing. Officer Aschenbrener’s police

car then collided with Kian’s car, and Kian, who was not wearing a seat belt, was ejected

from the car and fatally injured.

       The parties dispute whether Officer Aschenbrener’s siren was on at the time of the

collision. A resident who lived near the intersection testified that he heard the crash but

no siren. The resident maintained that he would have heard a siren because they echo in

that area, and he has heard many in the past. Officer Aschenbrener testified that he

turned the siren on en route to the emergency and other evidence in the record suggested

that the siren was on before the crash.

       The Minnesota State Patrol issued a Crash Reconstruction Report (the report) after

the collision. The report stated that Officer Aschenbrener was “operating a fully marked

                                             3
Minnetonka Police squad car with the lights and siren activated.” It confirmed that

Officer Aschenbrener “applied the brakes and swerved to the right in an attempt to avoid

a collision as he entered the intersection on a red light.” Officer Aschenbrener also

testified that he tried to swerve out of the way when he saw Kian’s car. The report

further stated that Kian’s car sustained damage consistent with being struck broadside.

The report estimated that Kian’s car was traveling 26 miles per hour at the moment of

impact.    Data from the police car’s power-control module estimated that Officer

Aschenbrener was traveling at 77 miles per hour approximately 216 feet before impact.2

       The report concluded that Officer Aschenbrener caused the collision because

“[t]he speed which [the police car] was traveling did not allow sufficient time for the

traffic controller to complete the pre-emption cycle” and “[t]he point at which the BMW

(Kian) could have observed the approaching emergency vehicle (approximately 88 feet

from impact) would not have allowed sufficient time for Kian to perceive/react and avoid

the collision.”

       In August 2013, Gholamreza Kian sued Officer Aschenbrener and the city for

wrongful death, claiming willful disregard of duty, negligence, vicarious liability, and

negligent training. Officer Aschenbrener and the city moved for summary judgment,

arguing that Officer Aschenbrener was entitled to official immunity and the city was


2
   The report estimated that Officer Aschenbrener was traveling at 62 miles-per-hour
leading up to the crash but as the report noted, this estimate conflicts with data from the
squad car’s power-control module. Because we construe the facts in the light most
favorable to Kian in this summary judgment appeal, we assume that Officer
Aschenbrener’s police car was traveling at 77 miles-per-hour. See Frieler v. Carlson
Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008).
                                            4
entitled to vicarious official immunity. The district court granted summary judgment in

favor of Officer Aschenbrener and the city and dismissed all four counts with prejudice.

Kian appealed.

                                    DECISION

      In an appeal from summary judgment, this court examines whether genuine issues

of material fact exist and whether the district court’s application of the law was

erroneous. Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014). A

genuine issue of fact exists when the evidence permits “reasonable persons to draw

different conclusions.” Frieler, 751 N.W.2d at 564 (quotation omitted). The evidence is

viewed in the light most favorable to the nonmoving parties and all reasonable inferences

are drawn in their favor. Id. The applicability of official immunity is a question of law

that this court reviews de novo. Vassallo, 842 N.W.2d at 462.

      Official immunity is a common-law doctrine. Kari v. City of Maplewood, 582

N.W.2d 921, 923 (Minn. 1998). It acts as a shield to protect public officials who perform

duties that call for the exercise of judgment or discretion from being held personally

liable for damages. Schroeder v. St. Louis Cnty., 708 N.W.2d 497, 505 (Minn. 2006).

The purpose of the doctrine is “to enable public employees to perform their duties

effectively, without fear of personal liability that might inhibit the exercise of their

independent judgment.” Vassallo, 842 N.W.2d at 462. This doctrine is particularly

important in emergency situations because those responding to emergencies must often

make “quick decisions, often with imperfect information, in situations in which hesitation



                                            5
or inhibition may result in significant harm to the public.” Id. at 467 (Anderson, J.

dissenting).

       This court examines three factors to determine if official immunity applies:

“(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.” Id. at 462.

       Conduct at Issue

       To determine whether Officer Aschenbrener can assert official immunity, this

court must first identify the specific conduct at issue. Anderson v. Anoka Hennepin

Indep. Sch. Dist. 11, 678 N.W.2d 651, 656 (Minn. 2004).

       Viewing the conduct at issue here—Officer Aschenbrener’s driving—in the light

most favorable to Kian, including assuming that the car’s siren was not on, the record

shows the following facts: Officer Aschenbrener responded to an emergency call and

drove approximately 37 miles per hour over the speed limit; he turned on his Opticom

emitter and flashing red lights; he approached an intersection with a red light and did not

slow down; the Opticom emitter was flashing at Kian but had not yet completely changed

the light; when Officer Aschenbrener approached the intersection where the crash

occurred, a church sign obscured Kian’s car from Officer Aschenbrener’s view; when

Officer Aschenbrener saw Kian’s car, he braked and tried to avoid the collision; and

Officer Aschenbrener’s car broadsided Kian’s car, ejecting Kian from the car and fatally

injuring him.



                                             6
       Discretionary or Ministerial

       We next turn to whether Officer Aschenbrener’s conduct was discretionary or

ministerial. “Whether a particular statute or policy creates a ministerial duty is ordinarily

a question of law.” Vassallo, 842 N.W.2d at 463. To determine whether an official’s

conduct is discretionary or ministerial, we must focus on the nature of the act. Id. at 462.

“A discretionary duty involves individual professional judgment that necessarily reflects

the professional goal and factors of a situation.” Id. (quotation omitted). A ministerial

duty “is absolute, certain, and imperative, involving merely the execution of a specific

duty arising from fixed and designated facts.” Anderson, 678 N.W.2d at 656 (quotation

omitted).

       Kian argues that Minnesota Statutes section 169.03, subdivision 2 (2014),

Minnesota Statutes section 169.17 (2014), and Minnetonka Police Department Policy

Manual Directive 305 (Minnetonka Police Directive 305) create a discretionary yet

mandatory duty for Officer Aschenbrener to operate his police car with due regard for

public safety.

       The relevant statutes provide as follows. Section 169.03, subdivision 2, states:

                 The driver of any authorized emergency vehicle, when
                 responding to an emergency call, upon approaching a red or
                 stop signal or any stop sign shall slow down as necessary for
                 safety, but may proceed cautiously past such red or stop sign
                 or signal after sounding siren and displaying red lights, except
                 that a law enforcement vehicle responding to an emergency
                 call shall sound its siren or display at least one lighted red
                 light to the front.




                                                7
          Similarly, section 169.17 states that posted speed limits do not apply to drivers of

authorized emergency vehicles when responding to an emergency call but acknowledges

that this exception does not “relieve the driver of an authorized emergency vehicle from

the duty to drive with due regard for the safety of persons using the street, nor does it

protect the driver of an authorized emergency vehicle from the consequence of a reckless

disregard of the safety of others.”

          The relevant departmental policy, Minnetonka Police Directive 305, states:

                 The judicial system has often determined that even if an
                 officer has been responding to an emergency situation, the
                 officer is not relieved of the responsibility of operating an
                 emergency vehicle with due regard for the safety of others
                 using the road way. While allowed to violate certain traffic
                 laws, officers must do so in a manner that will not jeopardize
                 the safety of others. Exceeding the speed limit must be done
                 with the utmost caution.

          Kian’s argument—that these statutory and departmental authorities create

discretionary yet mandatory duties—appears to ask this court to construe these authorities

as creating a ministerial duty for an officer to operate his car with due regard for public

safety.      But the parties stipulated that Officer Aschenbrener was exercising a

discretionary duty. Most importantly, in Vassallo, the supreme court examined similar

departmental3 and statutory authorities4 and concluded that an officer’s decision to slow

down as necessary for safety was a “textbook example of the exercise of discretion.” 842


3
  The departmental policy at issue in Vassallo, Hennepin County Sheriff’s Office Policy
6-402, states, “Deputies are required to drive with due regard for the safety of all
persons.” 842 N.W.2d at 461 n.3.
4
   Vassallo specifically examined section 169.03, subdivision 2—the same statute that
Kian cites here. 842 N.W.2d at 463.
                                               8
N.W.2d at 463-64. In addition, Vasallo held that the relevant statute did not require both

the use of a siren and flashing red lights; rather, the use of one of these methods was

sufficient.5     Id.   We therefore conclude that Officer Aschenbrener’s conduct was

discretionary.

       Our inquiry does not end here, however. We must also determine whether a

genuine issue of material fact exists as to whether Officer Aschenbrener acted willfully or

maliciously.

       Willful or Malicious

       When an official undertakes a discretionary action, he “is not personally liable to

an individual for damages unless he is guilty of a willful or malicious wrong.” Vassallo,

842 N.W.2d at 462 (quotation omitted). Malice is “the intentional doing of a wrongful

act without legal justification or excuse, or, otherwise stated, the willful violation of a

known right.” Id. at 465 (quotation omitted). The terms willful and malicious are

synonymous in the context of official immunity. Rico v. State, 472 N.W.2d 100, 107

(Minn. 1991).

       Generally, whether malice exists is a question of fact for the jury. Kelly v. City of

Minneapolis, 598 N.W.2d 657, 664 n.5 (Minn. 1999). But if no genuine issue of material

fact exists, the court may decide whether the officer acted maliciously as a matter of law.

See Vassallo, 842 N.W.2d at 465. “In order to find malice, the court must find that the




5
  Given this result, the factual issue of whether Officer Aschenbrener had turned on his
siren is not a genuine issue of material fact to preclude summary judgment.
                                             9
wrongful act so unreasonably put at risk the safety and welfare of others that as a matter

of law it could not be excused or justified.” Id. (quotation omitted).

       Kian argues that the district court erred in determining that no genuine issue of

material fact exists. Officer Aschenbrener and the city respond that Vassallo controls and

no genuine issue of material fact shows that Officer Aschenbrener acted willfully or

maliciously. After carefully examining the record and the police car video from the

accident, we agree with Officer Aschenbrener and the city.

       In Vassallo, a police officer was responding to an emergency call and traveling at

54 miles per hour in a 50 mile-per-hour speed zone. Id. at 460. Because of a recent

snowfall, road conditions were poor. Id. Shortly before entering an intersection, the

officer had turned off his siren to avoid alerting the suspects of his approach; his

emergency lights remained on. Id. The officer then entered the intersection on a red light

and collided with a car coming from the opposite direction. Id. The officer did not see

the car until the last minute and swerved to avoid it. Id.

       The district court granted summary judgment in favor of the officer, determining

that his actions were not willful or malicious as a matter of law. Id. at 465. The supreme

court affirmed, relying on the “undisputed facts” that the officer “simply failed to see [the

other] car until the last minute, and then made every effort to avoid [it].” Id. The

supreme court also noted that no evidence showed that the officer willfully or maliciously

violated a known right. Id. (citing Kari, 582 N.W.2d at 925).

       Here, similar to the officer in Vassallo, Officer Aschenbrener exceeded the speed

limit while responding to an emergency call, entered an intersection on a red light with

                                             10
his flashing red lights on and siren off, and collided with another car. And like the officer

in Vasallo, Officer Aschenbrener simply did not see Kian’s car until the last second and

tried to avoid the collision.

       Kian and the dissent contend that Vassallo is distinguishable because the

responding officer in Vassallo was only driving four miles per hour above the speed

limit, Officer Aschenbrener had been previously reprimanded in 2011 for driving too fast

when responding to a burglary report, and the officer in Vassalo had a good reason to

proceed without a siren through the intersection. But these distinctions are not persuasive

and attempt to lower the high bar of willful-and-malicious behavior to conduct that is

merely negligent.

       Negligence, however, is not malice; malice requires “proof of a wrongful invasion

of the rights of another.” Kelly, 598 N.W.2d at 663 (emphasis added). This bar is set

high in recognition of the difficult job that police officers perform. See Vassallo, 842

N.W.2d at 462-63. It is even more difficult to characterize an officer’s decision as willful

or malicious when the officer is performing a discretionary act that requires the exercise

of independent judgment and offers “little time for reflection.” Pletan v. Gaines, 494

N.W.2d 38, 41 (Minn. 1992).

       In rare cases, we have identified potentially willful or malicious conduct that has

created a genuine issue of material fact for a jury. See, e.g., Soucek v. Banham, 503

N.W.2d 153 (Minn. App. 1993). For example, in Soucek, Minneapolis police received

two separate reports from people claiming that they saw a wolf. Id. at 156. Later that

night, several officers located the “wolf” and within one-and-a-half minutes had shot the

                                             11
animal between 7 and 18 times. Id. The officers afterwards posed for trophy photos with

the animal, later identified as a German Shepard mix, and witnesses said that the officers

bragged about shooting a dog. Id. at 157-59. This court affirmed the denial of summary

judgment, concluding that a genuine issue of material fact remained regarding the

officers’ intent under the willful-and-malicious exception, and specifically whether the

officers truly believed the animal was a wolf, rather than a pet dog, when they shot it

many times. Id. at 160-61.

       Soucek stands in stark contrast to the circumstances here. Even when all the facts

are construed in favor of Kian, the record simply does not show that Officer

Aschenbrener’s actions could rise to the level of willful or malicious.             Officer

Aschenbrener made a discretionary judgment call to increase his speed when he learned

of escalating danger during a domestic dispute. But driving at high speeds in response to

an emergency is not by itself unreasonable. Cf. Pletan, 494 N.W.2d at 40-41 (holding

that an officer who pursued a shoplifting suspect in a high-speed car chase was protected

by official immunity).

       Nothing in the record suggests that Officer Aschenbrener intended to drive in a

manner that jeopardized public safety or that his response to a grave emergency so

unreasonably put at risk the safety of others that it could not be justified. Unlike in

Vassallo, where the officer entered at intersection against a red light at 54 miles per hour

under poor road conditions, 842 N.W.2d at 460, the road conditions for Officer

Aschenbrener were clear and dry. The officer turned on his flashing red lights and

Opticom emitter, his police car was never out of control, drivers were safely pulling to

                                            12
the side of the road in front of him, and the intersection that he was entering appeared

clear until the very last seconds before the crash.

       Officer Aschenbrener’s decision to speed to arrive at the scene of an emergency is

akin to an officer’s decision to engage in a high-speed car chase. And in the context of

high-speed car chases, the supreme court has said:

              Admittedly, a high-speed car chase can be dangerous, not
              only to the pursuer and the pursued, but also to uninvolved
              members of the public using the highways. Even so, the
              community imposes a duty on its . . . law enforcement
              officers to provide its citizens with security in person and
              property from lawless people, and this duty, on occasion,
              necessarily will involve high-speed car chases. Official
              immunity is provided because the community cannot expect
              its police officers to do their duty and then to second-guess
              them when they attempt conscientiously to do it.

Pletan, 494 N.W.2d at 41.

       Kian’s death was a tragedy, and our decision today does not suggest that an

officer’s driving in response to an emergency can never be willful or malicious. We are,

however, mindful of the discretion given to officers in these emergency-response

situations because “[t]o expose police officers to civil liability whenever a third person

might be injured would, we think, tend to exchange prudent caution for timidity in the

already difficult job of responsible law enforcement.” Id.

       Kian finally contends that the city cannot assert vicarious official immunity.

Given our conclusion above, we determine that vicarious official immunity extends to the




                                             13
city. See id. at 43 (holding that in high-speed police pursuits, the officer’s official

immunity extends to the officer’s public employer).

      Affirmed.




                                           14
RODENBERG, Judge (dissenting)

       Because there is a genuine issue of material fact concerning whether Officer

Aschenbrener’s driving conduct amounted to a willful violation of a known right, I

respectfully dissent. I would reverse the grant of summary judgment and remand this

case for trial.

       The majority correctly characterizes Officer Aschenbrener’s decision to drive

through the red light as discretionary and therefore proper for the application of official

immunity unless the officer was “guilty of a willful or malicious wrong.” Vassallo ex.

rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014) (quotation omitted). And the

majority rightly acknowledges that the question of whether malice exists is one of fact,

and therefore ordinarily a question for resolution by the jury.           Kelly v. City of

Minneapolis, 598 N.W.2d 657, 664 n. 5 (Minn. 1999); see also Elwood v. Rice City, 423

N.W.2d 671, 679 (Minn. 1988). Summary judgment on this issue is appropriate only if it

can be said as a matter of law that the officer’s conduct was not willful or malicious.

Vassallo, 842 N.W.2d at 465, citing Kari v. City of Maplewood, 582 N.W.2d 921, 925

(Minn. 1998). Respectfully, the conduct of Officer Aschenbrener is such that, viewing

the facts in the light most favorable to appellant, it cannot be said as a matter of law that

the officer’s conduct was not willful or malicious. On this record, the question is one of

fact, appropriate for resolution after trial.

       While I agree with the majority that the focus of our inquiry must be on the

officer’s driving conduct on the night in question, the determination of whether a

person’s conduct is willful or malicious cannot be made in a vacuum.                 Officer


                                                D-1
Aschenbrener had a history of driving at speeds that his own department determined to be

“extremely unsafe and unnecessary.” He was disciplined for excessively fast driving in

August, 2011, just 15 months before this crash.         The supervisor who issued that

disciplinary action testified in his deposition that Officer Aschenbrener “agreed that he

was simply driving too fast [in response to a burglary report] and at speeds that clearly

put himself and others at risk.” Officer Aschenbrener’s performance evaluations before

this collision also noted his involvement in an at-fault crash where the officer hit a

guardrail. His 2012 performance evaluation numerically evaluated his driving skills as

“1,” corresponding to “poor” driving skills. And the performance evaluation for the year

before rated his driving skills at only a “2.” This history of discipline for “extremely

unsafe” driving put Officer Aschenbrener on notice that his propensity to drive

dangerously would, if continued, put both himself and the driving public at unreasonable

risk.

        In Vassallo, a recent case from the Minnesota Supreme Court, an officer was

found entitled to official immunity after proceeding through a red light and crashing into

a motorist who had a green light and who apparently did not see the officer approaching

and entering the intersection. 842 N.W.2d at 460. But Vassallo is distinguishable from

this case in several important ways.

        Unlike the situation in Vassallo, Officer Aschenbrener was not driving just a few

miles per hour over the posted speed limit. Officer Aschenbrener’s testimony about

when and if he engaged his brakes before the collision conflicts with available crash data.

Further, Officer Aschenbrener’s version of what happened conflicts with testimony of a


                                           D-2
nearby resident concerning whether the officer was using his squad’s siren.          These

disparities could lead a fact-finder to conclude that Officer Aschenbrener’s recitation of

the incident is not credible. The evidence is conflicting concerning precisely how fast the

officer was driving at various points in time before the fatal crash. But viewing the

evidence in the light most favorable to the non-moving party, the officer was continuing

to accelerate as he approached the red light, reaching speeds as fast as 79 miles per hour

in a 40-mile-per-hour zone, and was still driving 77 miles-per-hour until he braked 1.2

seconds before impact. He was driving so fast that the Opticom did not have time to turn

his red light to green – and the dash-cam recording shows this to have been clearly visible

to the officer as he approached the intersection where Mr. Kiam was killed. Despite

having been discliplined earlier for creating unreasonable risks on account of excessively

fast driving, Officer Aschenbrener accelerated toward this intersection to speeds of close

to 80 miles per hour – nearly double the posted speed limit – so fast that he was

outdriving the Opticom. Since his light remained red, he knew that cross traffic would

proceed into this intersection with the right-of-way. And that is exactly what Mr. Kian

was doing when he was killed.         The Minnesota State Patrol reconstruction report

concluded that Mr. Kian approaced the intersection having a green light and “entered the

intersection on a yellow light.” Even after 22 feet of skidding through the red light,

Officer Aschenbrener was still travelling at 57 miles per hour at the time of the crash that

killed Mr. Kian.

       Another distinction between this case and Vassallo concerns the non-use of the

squad car’s siren. Unlike Vassallo, in this case there is a factual dispute about whether


                                            D-3
the officer was using his siren and the officer makes no claim that he made a

discretionary decision not to use the squad’s siren. Here, Officer Aschenbrener claims to

have been using the squad’s siren before the crash. But a citizen who lives near the crash

site heard the crash and went immediately to the intersection to render aid. That citizen

testified by deposition that he did not hear a siren before the crash, despite his house

being situated such that he can hear sirens when used by emergency vehicles at and

through that intersection. The squad car video – on which there is no audio – and the

other available objective data are insufficent to resolve this factual dispute concerning the

siren. Unlike Vassallo, where the officer had a reason not to be using the squad car siren

because he was getting close to the location where a security alarm had sounded and did

not want to alert burglars to his approach to the house, id., in this case there is no claim

that the officer made a discretionary decision not to use the squad car’s siren. As he

hurtled toward the intersection where Mr. Kian was killed, travelling at speeds

approaching those about which he had previously been warned as being “extremely

unsafe,” Officer Aschenbrenner claims to have had his siren on. But this fact issue is

very much in dispute. And the procedural posture of this appeal requires us to interpret

the factual record in the light most favorable to the party seeking summary adjudication.

See Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982) (requiring that, on an

appeal from summary judgment, the evidence be viewed in the light most favorable to the

non-moving party).

       Vassallo instructs that malice is “the intentional doing of a wrongful act without

legal justification or excuse, or, otherwise stated, the willful violation of a known right.”


                                            D-4
Id. at 465. Malice may be found in an officer’s actions that are such as to unreasonably

put at risk the safety of the driving public without excuse or justification. Id. There is

enough evidence in this record to support a jury finding that Officer Ashenbrener’s

conduct was more than negligent and amounted to a willful or malicious wrong.

      None of this is to say that a jury would find Officer Aschenbrener’s conduct to be

willful or malicious. To be sure, there is evidence from which a jury might well conclude

that there was no willful or malicious conduct and that Officer Aschenbrener and the city

are therefore entitled to official immunity.     The jury might well find that Officer

Aschenbrenner was using his siren. It might decide that the officer’s speed was not as

great as appellant claims. But that is what trials are for. Where the evidence would

support a finding that an officer who was previously disciplined for high-speed and

dangerous driving replicates that sort of high-speed driving in a circumstance where the

officer is driving so fast that the Opticom system cannot keep up with the speed of his

squad car, and the officer nevertheless, without using a siren, intentionally proceeds

through a red light at what is obviously an obscured intersection, I would reverse the

grant of summary judgment and remand for trial.




                                           D-5
