This opinion will be unpublished and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
A15-1791
Delmer V. Fladwood, et al.,
Appellants,
vs.
City of St. Paul,
Respondent.
Filed May 9, 2016
Reversed and remanded
Kirk, Judge
Dissenting, Johnson, Judge
Ramsey County District Court
File No. 62-CV-14-7654
Elliot L. Olsen, PritzkerOlsen, P.A., Minneapolis, Minnesota (for appellants)
Samuel J. Clark, St. Paul City Attorney, Cheri M. Sisk, Assistant City Attorney, St. Paul,
Minnesota (for respondent)
Considered and decided by Kirk, Presiding Judge; Johnson, Judge; and Smith, John,
Judge. ∗
∗
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
KIRK, Judge
Appellant, Delmer V. Fladwood, was seriously injured by a log that hit him during
a City of St. Paul tree-removal project. The district court granted summary judgment in
favor of respondent, City of St. Paul, on the basis of vicarious official immunity. Fladwood
contends that the district court erred by granting summary judgment because the act of
removing a tree is a ministerial duty, not a discretionary duty. We reverse and remand.
FACTS
In January 2013, the City of St. Paul sent its forestry crew to remove a tree at the
corner of Randolph Ave. and Victoria St., across the street from the Spot Bar. The crew
removed the top portion of the tree and planned to fell the remaining trunk into the street.
The crew leader decided to use logs from the top portion of the tree, each weighing several
hundred pounds, to establish a “crash pad” for the trunk. A crash pad is a pile of logs
placed to cushion a tree’s fall in order to prevent damage to streets and sidewalks. The
crew routinely used crash pads at the time the tree was removed. The crew leader believed
that a crash pad was necessary to protect the street, and the crew constructed the crash pad
in the middle of the street where they expected the tree’s remaining trunk to fall.
Several bystanders watched as the forestry crew removed the tree. American
National Standards Institute tree-removal standards, which the City of St. Paul has adopted,
require bystanders to remain outside of a safe-work zone when a tree is removed. The safe-
work zone extends to a radius of twice the height of a tree when a tree is removed. The
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crew is responsible for keeping bystanders outside of the safe-work zone. The tree in this
case was approximately 27 feet tall when it was removed, thus the safe-work zone extended
54 feet from the base of the tree. Fladwood was at the Spot Bar for drinks with friends and
had stepped outside just before the tree fell. He was standing behind the crew leader and
outside of the safe-work zone. The crew leader knew Fladwood was behind him and
outside of the safe-work zone, and did not ask Fladwood to move further away because he
believed Fladwood was in a safe place.
The trunk fell onto the crash pad as expected. But a large log unexpectedly shot out
from the crash pad, striking both the crew leader and Fladwood and knocking them to the
ground. Although the log did not injure the crew leader, it seriously injured Fladwood.
Fladwood was taken to the hospital, where he underwent emergency surgery to repair an
artery in his leg. Fladwood spent more than three months in the hospital and underwent
five surgeries.
In October 2014, Fladwood sued the City of St. Paul alleging negligence. The City
of St. Paul moved for summary judgment, arguing that vicarious official immunity bars
Fladwood’s claim. The district court granted the City of St. Paul’s motion for summary
judgment, concluding that vicarious official immunity applies because the crew leader’s
decisions to construct the crash pad and to refrain from moving Fladwood any further from
the safe-work zone involved judgment and discretion.
Fladwood appeals.
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DECISION
On appeal from summary judgment, we review de novo whether there are any
genuine issues of material fact and whether the district court erred in applying the law.
Ruiz v. 1st Fid. Loan Servicing, LLC, 829 N.W.2d 53, 56 (Minn. 2013). “We view the
evidence in the light most favorable to the party against whom summary judgment was
granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn.
2002). A genuine issue of material fact exists when there is sufficient evidence that could
lead a rational trier of fact to find for the nonmoving party. DLH, Inc. v. Russ, 566 N.W.2d
60, 69 (Minn. 1997).
The doctrine of official immunity protects public officials against personal liability
for discretionary conduct unless the public official is guilty of a willful or malicious wrong.
Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014). The purpose of the
doctrine is to “enable public employees to perform their duties without fear of personal
liability that might inhibit the exercise of their independent judgment.” Id. The doctrine
“must be narrowly construed in light of the fact that it is an exception to the general rule
of governmental liability.” Cairl v. State, 323 N.W.2d 20, 23 (Minn. 1982) (quotations
omitted). A government entity may claim vicarious official immunity for the conduct of
its public officials when the official’s conduct requires judgment or discretion, even at an
operational level. Vassallo, 842 N.W.2d at 462; Schroeder v. St. Louis County, 708
N.W.2d 497, 508 (Minn. 2006). Examining whether official immunity applies requires the
district court to identify the conduct at issue and then to determine whether the conduct is
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discretionary or ministerial. Vassallo, 842 N.W.2d at 462. We apply a de novo standard
of review to a district court’s determination that official immunity applies. Id.
We begin by identifying the conduct at issue. Fladwood argues that the conduct at
issue is the “overall act” of “cutting down a tree.” The City of St. Paul contends that the
conduct at issue includes the crew’s (1) decision to construct a crash pad and (2) decisions
regarding where bystanders could stand outside of the safe-work zone.
The supreme court’s opinion in Williamson v. Cain, 310 Minn. 59, 245 N.W.2d 242
(1976), is instructive in identifying the conduct at issue. In Williamson, the supreme court
considered how to characterize the conduct of state employees tasked with removing a
house. 310 Minn. at 60-61, 245 N.W.2d at 243-44. Although the court acknowledged that
removing a house involves many individual discretionary decisions, the court characterized
the conduct at issue as the “simple and definite,” overall task of “remov[ing] a house.” Id.
at 61, 245 N.W.2d at 244. This case is analogous to Williamson. Here, as in Williamson,
the crew faced many individual discretionary decisions in determining how to remove the
tree. But the crew’s overall task was “simple and definite,” to remove the tree. See id. For
this reason, we conclude that the overall task of removing a tree is the appropriate
characterization of the conduct at issue.
We next consider whether the conduct at issue is discretionary or ministerial.
Discretionary conduct involves “individual professional judgment that necessarily reflects
the professional goal and factors of a situation.” Vassallo, 842 N.W.2d at 462 (quotations
omitted). Ministerial conduct “is absolute, certain, and imperative, involving merely the
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execution of a specific duty arising from fixed and designated facts.” Id. (quotations
omitted). 1 The City of St. Paul argues that the conduct at issue is discretionary because
removing a tree involves discretionary decisions based on the forestry crew’s professional
judgment. But the mere fact that conduct requires some discretionary decision-making
does not render the entire act to be discretionary. See Cairl, 323 N.W.2d at 23 (“[A]lmost
every act involves some measure of discretion, and yet undoubtedly not every act of
government is entitled to discretionary immunity.”); Williamson, 310 Minn. at 61, 245
N.W.2d at 244 (noting “almost any act involves some measure of freedom of choice” but
that did “not entitle [the officials] to immunity from suit”).
Further, “[o]fficial immunity typically protects the conduct of public officials
responding to uncertain circumstances that require the weighing of competing values on
the grounds that these circumstances offer little time for reflection and often involve
1
In examining the distinction between discretionary and ministerial acts in the application
of official immunity, the district court relied heavily on what it calls “the snowplow and
road grader cases.” See Schroeder, 708 N.W.2d 497; In re Alexandria Accident of Feb. 8,
1994, 561 N.W.2d 543 (Minn. App. 1997), review denied (Minn. June 26, 1997). Those
cases involved discretionary immunity at both the policy making level by the road authority
and the operational level by employees. See Schroeder, 708 N.W.2d at 505-08; Alexandria
Accident, 561 N.W.2d at 545, 547. At the operational level, the landscape was very
dynamic for the employees, involving quickly changing road, weather, or traffic
conditions. See Schroeder, 708 N.W.2d at 506; Alexandria Accident, 561 N.W.2d at
549. The present case involves a more static situation, with fixed and designated facts. The
tree, like the house in Williamson, was just standing there. See 310 Minn. at 60, 245
N.W.2d at 243. There was sufficient time to develop a plan and take the necessary steps
to make sure that there was no damage to other property in the area or injury to any person
in the vicinity. Thus, we conclude that Williamson is the more analogous case for purposes
of our official immunity analysis.
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incomplete and confusing information such that the situation requires the exercise of
significant, independent judgment and discretion.” Shariss v. City of Bloomington, 852
N.W.2d 278, 282 (Minn. App. 2014) (quotations omitted). Minnesota courts are more
likely to find official immunity in cases involving time pressure and quick decisions and
less likely to find immunity in cases where public officials have ample time for
consideration. Compare Vassallo, 842 N.W.2d at 462 (noting immunity protects police
officers responding to emergencies because there is “little time for reflection”), with
Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 220 (Minn. 1998)
(“Nothing about that decision requires the kind of split-second decision-making involved
in a police officer deciding, for instance, whether to begin or continue a high-speed
chase.”).
Viewing the facts in the light most favorable to Fladwood, we conclude that the
conduct in this case was ministerial. A forestry supervisor compiled a list of trees for the
crew to remove, which included the tree at issue. The crew met to formulate a plan before
removing the tree and had plenty of time to consider whether to use a crash pad, where to
place the crash pad, and where to position bystanders before letting the tree fall. The crew’s
task to remove the tree was “absolute, certain, and imperative,” requiring “merely the
execution of [that] specific duty.” Vassallo, 842 N.W.2d at 462 (quotations omitted).
Hence, the City of St. Paul is not protected by vicarious official immunity and the district
court erred by granting summary judgment on that basis.
Reversed and remanded.
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JOHNSON, Judge (dissenting)
I respectfully dissent from the opinion of the court. The district court correctly
concluded that the City of St. Paul is entitled to the protections of the doctrine of vicarious
official immunity.
A.
Approximately a quarter century ago, Justice Simonett wrote that, in determining
whether the doctrine of official immunity applies, “it is essential to identify the precise
governmental conduct at issue.” Olson v. Ramsey County, 509 N.W.2d 368, 371 (Minn.
1993) (emphasis added) (citing Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722
(Minn. 1988)). In the intervening years, the supreme court consistently has reiterated that
statement and applied that method of analysis when determining whether challenged
governmental conduct is discretionary or ministerial in nature. See Mumm v. Mornson,
708 N.W.2d 475, 490-91 (Minn. 2006); Thompson v. City of Minneapolis, 707 N.W.2d
669, 673-74 (Minn. 2006); Sletten v. Ramsey County, 675 N.W.2d 291, 306-07 (Minn.
2004); Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 219 (Minn.
1998); S.W. v. Spring Lake Park Sch. Dist. No. 16, 580 N.W.2d 19, 23-24, 23 n.20 (Minn.
1998); Watson by Hanson v. Metropolitan Transit Comm’n, 553 N.W.2d 406, 415 (Minn.
1996); Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994).
In this case, the district court properly applied the supreme court’s well-established
caselaw by identifying two precise types of governmental conduct: (1) “Teske’s decision
as to whether or not to use a crash pad and how it should be constructed,” and (2) “Teske’s
determination as to where bystanders should be allowed to stand outside of the safe work
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zone.” In light of the detailed evidence in the summary-judgment record, the proper
analysis leads to the conclusion that the precise governmental conduct at issue in this case
is discretionary in nature.
With respect to the first type of challenged conduct, the City’s policies and practices
neither require nor forbid the use of a crash pad but, rather, allow crew leaders to decide,
based on the particular circumstances, whether a crash pad is appropriate to protect the
surface of a street and to maintain control of a felled tree and, if so, how to construct a
crash pad. Teske, the crew leader, decided to use a crash pad on January 4, 2013, after
considering the location and angle of the tree, the location of surrounding structures, the
weather, the available equipment, and the goal of ensuring the safety of the crew and
bystanders.
With respect to the second type of challenged conduct, the City’s long-standing
policy is to follow a national industry standard (specifically, ANSI Z133), which calls for
a circular safe zone whose radius is two times the length of the tree trunk being felled.
Teske complied with this standard by ensuring that Fladwood and all other persons were
more than 54 feet from the base of the 27-foot tree trunk.
Fladwood cannot defeat the city’s assertion of vicarious official immunity because
he cannot identify a duty that Teske failed to perform that was “absolute, certain, and
imperative, involving merely the execution of a specific duty arising from fixed and
designated facts.” See Vassallo by Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014)
(quotation omitted). Thus, the challenged governmental conduct is discretionary in nature,
which means that the city is protected by the doctrine of vicarious official immunity.
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B.
A contrary conclusion does not follow from Williamson v. Cain, 310 Minn. 59, 245
N.W.2d 242 (1976) (per curiam). The Williamson opinion predates the line of cases cited
above and, accordingly, does not anticipate the need “to identify the precise governmental
conduct at issue.” See Olson, 509 N.W.2d at 371 (emphasis added). In addition, the
Williamson opinion does not discuss any factors that might have guided the governmental
employees’ exercise of discretion, likely because no such evidence or argument was
offered or because the governmental employees’ conduct could not have been justified by
any discretionary decisionmaking. See 310 Minn. at 60-62, 245 N.W.2d at 243-44. For
whatever reason, the Williamson opinion does not contain the analysis that is required by
the supreme court’s more recent opinions. Furthermore, the facts of Williamson have no
more than a superficial similarity to the facts of this case. The demolition of the house in
Williamson did not involve the use of a crash pad and did not involve any decision about
where bystanders should stand during the demolition process. See id. at 60, 245 N.W.2d
at 243. In short, Williamson does not preclude or curtail the analysis that is prescribed by
the supreme court’s opinions in Olson and subsequent cases.
Fladwood also contends, in part, that official immunity does not apply because the
challenged governmental conduct did not require split-second decisionmaking.
Fladwood’s contention is contrary to the purpose of official immunity, which is “to protect
public officials from the fear of personal liability that might deter independent action and
impair effective performance of their duties.” Anderson v. Anoka Hennepin Indep. Sch.
Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004) (quotation omitted). This purpose may be
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served in cases that do not involve split-second decisionmaking. Indeed, both the supreme
court and this court have applied the doctrine of official immunity in cases in which the
challenged governmental conduct did not involve split-second decisionmaking. See, e.g.,
Sletten, 675 N.W.2d at 300-08 (maintenance and regulation of compost site that allegedly
contaminated groundwater); Olson, 509 N.W.2d at 371-72 (formulation of case plan for
child in need of protection); Semler v. Klang, 743 N.W.2d 273, 277-79 (Minn. App. 2007)
(notification of presence of sex offender), review denied (Minn. Feb. 19, 2008); Meier v.
City of Columbia Heights, 686 N.W.2d 858, 863-66 (Minn. App. 2004) (abatement of
“garbage house”), review denied (Minn. Dec. 14, 2004); Huttner v. State, 637 N.W.2d 278,
284-86 (Minn. App. 2001) (monitoring of compliance with treatment plan to control mental
illness), review denied (Minn. Nov. 13, 2001). I would not alter the analysis prescribed by
Olson and subsequent opinions on the ground that Teske’s conduct did not require split-
second decisionmaking.
In sum, I would affirm the well-reasoned decision of the district court.
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