(dissenting).
I respectfully dissent, and would remand to the district court for trial on genuine issues of material fact arising from the question of whether Officer Yates’s actions were willful or malicious. See Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 n. 5 (Minn.1999) (“[wjhether an action is discretionary or ministerial is a question of law for the court, but whether an officer acted maliciously is usually a.question of fact for the jury”). (citing Elwood v. Rice County, 423 N.W.2d 671, 679 (Minn.1988)). I agree with the majority that if Yates’s actions are covered by official. immunity the City of Anoka is protected by vicarious official immunity. However, I cannot go along with the majority’s conclusion that, on this set of facts, the issue is ripe for summary judgment in favor of Anoka. I suggest the district court properly denied respondent’s motion for summary judgment, and set the case for trial on contested fact issues.
A determination of Yates’s official immunity (and, hence, Anoka’s vicarious official immunity) requires a two-step inquiry: (1) whether the act required the exercise of judgment and discretion and is therefore the sort of conduct covered by official immunity; and. (2) whether the alleged act, even though of the sort generally .covered by official immunity, was willful or malicious and therefore not, entitled to protection. Kelly, 598 N.W.2d at 664; Elwood, 423 N.W.2d at 677 (noting that there are two exceptions to the general rule precluding official liability).
*510As stated above, the question of whether an officer’s actions were willful or malicious is one for the jury. Kelly, 598 N.W.2d at 664 n. 5. Here, the district court refused to grant summary judgment on the official immunity question because it determined that “several fact issues remain,” including “whether the other officers present were aware that Chips had seized [respondent] and whether Chips would follow a release command if given by another officer;” and “whether once Officer Yates realized that Chips had seized [respondent] he released Chips immediately or knowingly allowed Chips to continue to maul [respondent].” These factual issues are unresolved and should not be determined by appellate review.
If the other officers stood by and watched while Chips mauled respondent, and they could have done something about it, it would be hard to say that those officers did not engage in conduct they knew to be prohibited, i.e., allowing a police dog to harm an innocent bystander. See id. at 663 (“[m]alice in the context of official immunity means intentionally committing an act that the official has reason to believe is legally prohibited”). If Yates knowingly allowed Chips to continue to maul respondent, he also engaged in prohibited conduct. A large, unresolved question lingers out there. In general, K-9 police/attack dogs are specifically trained to answer to only one officer, that dog’s master. The rationale is to avoid conflicting signals and allow the dog, in serious situations, to have a clear line of command. Yates was this dog’s controller. If he was the only one who could control the dog, the factual question arises as to whether there was willful conduct in Yates intentionally pursuing Hyatt’s husband and running out of the room after him, knowing that Chips was still attacking Hyatt, and knowing that the remaining officers at the scene could not do anything about that, short of drawing their pistols or batons and shooting or clubbing Chips. As the record shows, Hyatt’s husband jumped out a window, and Yates went through the window after him. As the majority points out, he “caught himself, before he fell two stories to the ground.” This is not a speculative scenario. This is a real scenario. What if Yates does not “catch” himself and falls two stories to the ground and is knocked unconscious or otherwise incapacitated. You still have Chips upstairs mauling Lena Hyatt, and you have two Anoka officers standing around who are helpless to do anything about it if Chips has been trained to respond to commands from only Yates. In that situation, the dog could easily have inflicted egregious injuries on Hyatt or caused her death, absent the other two officers using whatever they could find to stop the dog’s attack.
Respondent alleges willfulness; determination of the ultimate answers to these questions, as the district court properly held, is not appropriate at the summary judgment stage. Accordingly, I would remand for a trial on the factual issue of whether the officers on the scene engaged in willful or malicious behavior.