                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0608

                                   Nicole M. Spargur,
                                       Appellant,

                                           vs.

                                    Freeborn County,
                                      Respondent.

                                 Filed October 20, 2014
                                        Affirmed
                                    Bjorkman, Judge


                             Freeborn County District Court
                                File No. 24-CV-12-1832

Donaldson V. Lawhead, Austin, Minnesota (for appellant)

Joseph J. Langel, Christian R. Shafer, Ratwik, Roszak & Maloney, P.A., Minneapolis,
Minnesota (for respondent)

         Considered and decided by Smith, Presiding Judge; Larkin, Judge; and Bjorkman,

Judge.

                         UNPUBLISHED OPINION

BJORKMAN, Judge

         Appellant challenges summary judgment in favor of respondent county on the

basis of vicarious official immunity. Appellant argues that immunity does not apply
because the signage policy at issue does not reflect any real exercise of discretion. We

affirm.

                                           FACTS

          On September 27, 2006, a road maintenance crew for respondent Freeborn County

closed a portion of County State Aid Highway (CSAH) 36 to traffic for a one-day

maintenance project, placing a single barricade in the middle of the road at either end of

the closure with a “Road Closed” sign. When appellant Nicole Spargur approached the

road closure early that afternoon, a truck and sudden rain obstructed her view, so she did

not see the “Road Closed” sign in time to stop safely.1 She swerved to avoid the

barricade and lost control of her vehicle, which went off the road and rolled over into the

ditch.

          Spargur subsequently initiated this action, alleging that the county was negligent

by failing to erect and maintain adequate signage—specifically, an advance-warning

sign—about the road closure. The county moved for summary judgment on grounds of

statutory immunity, common-law vicarious official immunity, and lack of proximate

cause. The district court rejected the county’s arguments as to statutory immunity and

proximate cause but concluded that the county is entitled to vicarious official immunity

because Spargur’s suit essentially challenges the county’s signage policy, which reflects a

discretionary action. The district court granted summary judgment, dismissing Spargur’s

claims, and Spargur appeals.


1
  For purposes of this appeal from summary judgment, we accept Spargur’s factual
allegations regarding the circumstances of the accident.

                                               2
                                      DECISION

       On appeal from summary judgment, we must determine whether there are any

genuine issues of material fact and whether the district court erred in its application of the

law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). 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 review de novo. Gleason

v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998). The party

asserting immunity has the 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 employee. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316

(Minn. 1998). “Official immunity protects a public official charged by law with duties

that call for the exercise of judgment or discretion unless the official is guilty of a wilful

or malicious wrong.” Gleason, 582 N.W.2d at 220 (quotation omitted). Because official

immunity is intended to protect public officials “from the fear of personal liability that

might deter independent action and impair effective performance of their duties,” it

generally does not protect officials “when they are charged with the execution of

ministerial, rather than discretionary, functions, that is, where independent action is

neither required nor desired.” Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678

N.W.2d 651, 655 (Minn. 2004) (quotation omitted).            But we look to “the precise

governmental conduct at issue” in determining whether there is immunity. Gleason, 582


                                              3
N.W.2d at 219 (quotation omitted). When a lawsuit challenges an official’s ministerial

compliance with an established policy, it is the policy itself that is at issue. Anderson,

678 N.W.2d at 660. In such a circumstance, the question is “whether the adoption of the

protocol was discretionary.” Id. at 661.

       It is undisputed that the crew that closed CSAH 36 on the day of Spargur’s

accident followed the county’s signage policy for short-term road closures: When

maintenance required closure of a low-volume roadway for less than one day, the

maintenance crew was required to place a “Road Closed” sign in the middle of the road at

the nearest intersection point on each end of where the work was to take place but was

not required to place advance-warning signs.

       The precise governmental conduct at issue here is the adoption of that policy.

County engineer Susan Miller, who joined the highway department in October 1998,

explained that the policy “had been our practice and . . . had worked extremely well for

many, many years prior to me coming to this department and since I have been in this

department.” She also testified that it was her “engineering judgment and the engineering

judgment of the previous engineer . . . that the road closed sign, as we had done for years

for these very short-term closures, was reasonable and appropriate for the work force that

we had and the amount of time and duration that we would be on those roads for those

type of projects.”

       Spargur emphasizes these references to the policy’s long tenure, arguing that the

policy was not the result of meaningful judgment or analysis because Miller simply

followed the practice of the former county engineer. Spargur contends this adherence to


                                            4
a prior practice amounts to a failure to exercise discretion and precludes immunity, as in

Larson v. Indep. Sch. Dist. No. 314, 289 N.W.2d 112 (Minn. 1979), and S.W. v. Spring

Lake Park Sch. Dist. No. 16, 580 N.W.2d 19 (Minn. 1998). We are not persuaded.

       Neither Larson nor S.W. involved the type of common-law official-immunity

analysis at issue here. See Anderson, 678 N.W.2d at 657 (stating that Larson “mistakenly

relied on statutory immunity standards in an official immunity analysis”); S.W., 580

N.W.2d at 22-24 (rejecting claim of statutory immunity because school district did not

adopt a safety policy but remanding for separate analysis of common-law official

immunity). Official immunity is broader than the statutory immunity addressed in both

of those cases, protecting “discretion exercised at the operational level rather than at the

policy-making level.”     S.W., 580 N.W.2d at 23.        And undisputed evidence amply

indicates that Miller exercised operational discretion in evaluating and continuing the

signage policy.

       Miller testified that she exercises engineering judgment in determining the type of

signage to be used for a given traffic-control measure. She identified multiple factors

that influence that judgment, including the extent of the traffic disruption (full road

closure versus limited through traffic), the duration the traffic-control measure is in place,

the level of traffic on the affected roadway, and the available departmental resources.

Based on these considerations, Miller concluded that a single barricade sign at the nearest

intersection is sufficient warning for a short-term closure of a low-volume road because

“a reasonable person” can be expected to monitor cross traffic and weather conditions,

observe the sign as he or she approaches, and adjust speed and course accordingly.


                                              5
       Spargur argues that this conclusion cannot reflect discretionary judgment or

engineering analysis because it is contrary to the Minnesota Manual of Uniform Traffic

Control Devices. We disagree. First, the manual is a guide, not a mandate. It does not

preclude an official from exercising independent judgment and discretion. Ireland v.

Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 274 (Minn. App. 1996) (noting “the manual’s

express deference to the judgment of engineers in installing traffic control devices”),

review denied (Minn. Sept. 20, 1996).       Second, Spargur’s argument implicates the

fundamental rationale for official immunity—to promote independent action and

effective performance of public officials by protecting them from liability. Even if the

manual in effect in 2006 called for advance-warning signs for all road closures, Miller

was entitled to and did exercise her discretion to continue the long-standing policy of

foregoing such signs in favor of other traffic-control measures for very short-term

closures of low-volume roadways. See id. (holding county entitled to vicarious immunity

for engineer’s signage decision contrary to the manual).

       In sum, the record establishes that the challenged signage policy was based on

Miller’s operational discretion as county engineer. Accordingly, we conclude the district

court did not err by determining that the county is entitled to vicarious official immunity

and granting the county summary judgment.2

       Affirmed.



2
  The county urges the alternative argument that summary judgment is justified because
there is no evidence as to proximate cause. Because we affirm based on immunity, we
decline to address this argument.

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