(concurring in part, dissenting in part).
I concur with the majority on issue one, namely appellant’s claim that certain railroad crossing devices were inadequate. I agree with the majority that Minn.Stat. § 219.402 (Supp.1985) supports the trial court’s dismissal.
The second issue, the question of statutory immunity, based on a claim that the state negligently delayed the repainting of pavement markings, is closer. I agree the *318arguments by the state as to why they waited a certain number of days before repainting a railroad crossing warning sign which had been obliterated by freshly laid tar appear reasonable and are premised on a sensible balancing of considerations such as availability of work crews in isolated areas of the state.
However, when all is said and done, the real policy decision-making process and the conduct at the protected planning level had all been done in the past. At some point long ago in time, the decision was made to paint a pavement marking on the road leading up to the Dugdale crossing. The initial decision to paint or not paint a warning would be a type of discretionary function protected by the statute. As mentioned, however, it had been decided a long time ago to put down a warning painting, and maintain and resurface it as needed. There was no engineering report stating the pavement crossing warning should be removed. The record reflects no dispute that it had to be repainted after the road was blacktopped. The record is clear that for previously decided safety reasons, respondent was intent on replacing the destroyed markings with new paint.
The state knew that the paint had disappeared when they resurfaced the road, and knew that it should be and was to be repainted. The reason given for the time interval before repainting is that the asphalt repair project needs to weather a week to two weeks in order for the freshly laid pavement to cure. If not properly cured, the paint may soak into the pavement and obliterate the words, thus necessitating another painting.
The road had been resurfaced on June 25, 1986. The markings were not repainted until July 9th. The pavement may have been ready to repaint as soon as July 4th (10 days). Appellant argues it was negligence for the state to wait another five days before putting down an important warning. The fatal accident happened on July 5th, and thus, appellant claims there is a causal relationship between the accident and the lack of the warning.
The state argues the painting crew was on vacation and holiday leave over the July 4th weekend and July 9th was its highest and best use of limited resources, citing the fact of having to hire extra personnel or pay overtime wages to have done the painting on a holiday weekend.
Although it could be argued either way, protected planning level policy making or unprotected, ministerial operational level work, I suggest it is closer to unprotected operational level conduct. There is a generally recognized distinction between planning level decisions, which are protected, and operational level decisions, which are unprotected. Schaeffer v. State, 444 N.W.2d 876, 879 (Minn.App.1989).
Protection does not extend to professional or scientific judgment which does not involve a balancing of policy objectives. See Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 719 (Minn.1988). To establish immunity, the governmental entity must produce “evidence that the conduct was of a policy-making nature involving social, political, or economical considerations.” Id.
The decision to wait so many days 1 before repainting fresh asphalt so that it has cured properly and will accept fresh paint seems to be nothing more than the professional or scientific judgment of someone who is familiar with the chemical makeup and physical characteristics of asphalt and of fresh paint. Elected or appointed officials discuss policy and then make protected discretionary decisions as to which road or crossing gets signals. Once those decisions are made, I suggest an engineer or foreman on the job makes the on-the-spot professional judgment as to such operational decisions as whether you use oil based paint or water based paint, or how many crew members to send, and when to send them.
*319As the courts have stressed, the determination of what is protected discretionary governmental policy-making decisions versus unprotected decisions at the operational level is often difficult to make because so many decisions at both levels have characteristics of each type of conduct. When stripped to its essence, I suggest the decision of the painting crew as to when to repaint a warning they had been told to repaint was operational. Therefore, this claim should survive the motion for summary judgment based on the doctrine of discretionary immunity. This is not meant to cast strength on appellant’s claim of negligence. Although the record before us is limited, it could well be that the decision to wait an extra three or four days was within the bounds of professional judgment. Further, the question of causation is not firm for appellant and has yet to be settled. The state’s conduct will rise or fall on the factfinder’s determination of negligence.
If the evidence at trial does not change, respondent may well prevail on a motion for a directed verdict on negligence and/or causation at the close of evidence. The trial court will decide that at that time. I simply suggest the label “policy” does not logically extend all the way from the top down to the most mechanical decision made by the person on the job required to do the actual work. As stated in Nusbaum, discretionary protection does not cover professional judgment where it does not involve the balancing of policy objectives.
I dissent on issue two and would find that appellant at least survives the motion on summary judgment on his negligence claim where summary judgment was based on the assertion of discretionary immunity. The issues of negligence and causation should move on to determination by the factfinder.
. See Hansen v. City of Saint Paul, 298 Minn. 205, 214 N.W.2d 346 (1974) (where city officials had knowledge that two dangerous dogs were loose, the decision of the dogcatchers not to capture the dogs until after lunch was at an operational level and therefore, was not protected conduct).