Killen v. Independent School District No. 706

OPINION

LANSING, Judge.

In a wrongful death action, the district court concluded that a school district and its guidance counselor were immune from liability for a student’s at-home suicide. We affirm the application of discretionary function immunity to the district’s lack of a suicide prevention policy and the application of official immunity to the guidance counselor’s decision on when to tell parents that a student expressed suicidal thoughts.

FACTS

A ninth grade student in the Virginia, Minnesota school district, who had stayed home from school, obtained a loaded gun from her parents’ basement and fatally shot herself in the chest. The student, Jill Dib-ley, had first expressed suicidal thoughts to her school guidance counselor, Frank Fabish, five months earlier in September 1993. The guidance counselor informed the student’s parents that the student had expressed suicidal thoughts and recommended professional counseling.

The parents obtained professional counseling for the student. A psychologist diagnosed the student as suffering from clinical depression. The psychologist told the parents that progress was being made but warned that the student was not out of danger of suicide. This information was not provided to the school district or the guidance counselor.

In December 1993 the student wrote an essay for her English class about a teenage girl committing suicide by shooting herself in the chest. The student’s English teacher, Mary Strasser, questioned her about the essay and reported it to the guidance counsel- or. This information was not provided to the student’s parents.

On the evening of January 6,1994, another school counselor, Kathy Neff, received a telephone call from a friend of the student. The friend told Neff she had received a letter from the student that said she intended to get a gun from the basement of her home and kill herself. The next morning, January 7, Neff contacted the guidance counselor about the telephone call.

Late in the afternoon on Friday, January 7, the guidance counselor spoke to the student about her suicidal statements. The student told the counselor that she only considered suicide when she was fighting with a parent and that she was not thinking about it now. The student also told the guidance counselor that she was in counseling. The guidance counselor spent about fifteen minutes with the student and told her he wanted to see her the following week. The guidance counselor did not contact the student’s parents about the letter or the conversation.

*116With her parents’ knowledge, the student stayed home from school on Monday, January 10 and Tuesday, January 11. On January 11 the student fatally shot herself with a loaded gun kept in the basement of her home.

The school district had no policy on student suicide prevention. The district maintained a “Student Manual” and a “Faculty Manual” that discussed issues relating to student dress, behavior, and discipline, but neither manual specifically addressed suicidal students.

ISSUES
I. Is the school district entitled to discretionary function immunity from claims alleging failure to develop and implement a suicide prevention policy?
II. Is the guidance counselor entitled to official immunity for decisions on when to notify parents of a student’s expressed suicidal thoughts?

ANALYSIS

The application of discretionary function immunity and common law official immunity is a question of law when the material facts are undisputed. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn.1989) (discretionary immunity); Carradine v. State, 494 N.W.2d 77, 80 (Minn.App.1992) (official immunity), affd in part, rev’d in part, 511 N.W.2d 733 (Minn.1994).

I

Discretionary function immunity protects a government entity from tort liability for a claim based on “the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” Minn.Stat. § 466.03, subd. 6 (1994); Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn.1992). The purpose of discretionary function immunity is to preserve the separation of powers by protecting executive and legislative policy decisions from judicial review through tort actions. Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 718 (Minn.1988).

The critical question in determining whether discretionary function immunity applies is whether the specific conduct involves the balancing of policy objectives. Id. at 722. A protected, planning level decision involves a question of public policy and the balancing of competing social, political, or economic considerations. Pletan, 494 N.W.2d at 43-44; Nusbaum, 422 N.W.2d at 719-20. Operational decisions, unlike planning level decisions, involve the day-to-day workings of a governmental unit, and these implementation decisions are not protected. Holmquist v. State, 425 N.W.2d 230, 232 (Minn.1988).

The governmental unit, in this ease the school district, bears the burden of proving that its actions are immune from liability. Nusbaum, 422 N.W.2d at 722. When determining whether immunity applies, we identify and focus on the precise governmental conduct being challenged. Id.

The trustee challenges the school district’s failure to develop and promulgate a suicide prevention policy. A school district’s policymaking is a protected discretionary function. Pletan, 494 N.W.2d at 44 (immunizing a school district’s policymaking when it necessarily involved consideration of costs, safety, and educational goals). The decision whether to create a policy on student suicide would require the district to carefully weigh considerations about the role and function of guidance staff, the financial resources available for training, privacy of students, intimacy of student-teacher relationships, district involvement with mental health-care providers, educational methods, public attitudes, and the efficacy of particular approaches. Because development of a suicide prevention policy involves questions of public policy and the balancing of competing interests, the development of a suicide prevention policy is a protected discretionary function.

The district did not develop a suicide prevention policy. Discretionary function immunity protects both the development and the nondevelopment of a policy. Minn.Stat. § 466.03, subd. 6 (immunity extends to performance or failure to perform a discretionary function). Discretionary function immu*117nity protects the school district’s failure to adopt a suicide prevention policy.

II

A public official charged by law with duties that call for the exercise of judgment or discretion is not personally liable to an individual for damages unless the official’s actions are willful or malicious. Elwood v. Bice County, 423 N.W.2d 671, 677 (Minn.1988). This common law official immunity protects an individual’s acts that call for the exercise of judgment and discretion. Pletan, 494 N.W.2d at 40. Acts that are nondiscre-tionary, imperative, or prescribed by policy, are not protected. Rico v. State, 472 N.W.2d 100, 107 (Minn.1991).

The trustee alleges that the guidance counselor negligently failed to notify the student’s parents that the student was contemplating suicide.1 The trustee has made no allegation that the guidance counselor committed a willful or malicious wrong, and no evidence exists that even suggests that the counselor’s actions were willful or malicious.

The counselor’s responses to the student’s statements were necessarily based on an exercise of his professional judgment, taking into consideration his knowledge about the student’s problems, his observations of her, his education and training, and his experience dealing with troubled teenagers. The tragedy of the student’s death is even more painful with the possibility that more communication or differently timed communication might have prevented it. But the facts demonstrate the many factors that affect such a decision, and the issue is not whether, in hindsight, a different decision might have averted the tragedy. The question is whether the alleged failure to act is discretionary, to which official immunity applies, or ministerial, to which immunity does not apply. We think this is a situation requiring the exercise of significant, independent judgment and discretion. Official immunity protects the guidance counselor’s decision on whether or not to immediately inform the student’s parents about her statements.

DECISION

Because we conclude that the school district and the guidance counselor are entitled to immunity, we affirm the district court’s summary judgment.

Affirmed.

. The trustee agrees that if the guidance counsel- or is entitled to official immunity, the school district is vicariously immune for the counselor’s actions and decisions. Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn.1993); Pletan, 494 N.W.2d at 43.