Kristen Thompson, petitioner, Appellant, vs. City of Minneapolis, et al., Respondents, Michael Litz, Respondent.

Kristen Thompson, petitioner, Appellant, vs. City of Minneapolis, et al., Respondents, Michael Litz, Respondent. A04-1050, Court of Appeals Unpublished, January 18, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1050

 

 

Kristen Thompson, petitioner,

Appellant,

 

vs.

 

City of Minneapolis, et al.,

Respondents,

 

Michael Litz,

Respondent.

 

 

Filed January 18, 2005

Reversed and remanded

Halbrooks, Judge

 

 

Hennepin County District Court

File No. PI 03-5005

 

 

Wilbur W. Fluegel, Fluegel Law Office, 150 South 5th Street, Suite 3475, Minneapolis, MN 55402; and

 

Russell H. Crowder, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433 (for appellant)

 

Jay M. Heffern, Minneapolis City Attorney, James A. Moore, Assistant City Attorney, 333 South 7th Street, Suite 300, Minneapolis, MN 55402 (for respondent City of Minneapolis, et al.)

 

Phillip Marron, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for respondent Litz)

 

            Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Kristen Thompson challenges the district court's grant of summary judgment in favor of respondent police officers, contending that because the officers failed to perform a ministerial duty by not continuously operating their vehicle's emergency lights and siren during a vehicular pursuit, they are not entitled to official immunity.  Alternatively, appellant argues that even if the officers' actions were discretionary, official immunity should not apply because their conduct was malicious and willful.  She also challenges the district court's grant of summary judgment in favor of respondent city, arguing that because the officers are not protected by official immunity, the city is not protected by vicarious official immunity.  Because the officers failed to perform a ministerial duty required by the departmental pursuit policy, we conclude that they are not protected by official immunity.  We do not reach the question of whether the officers' actions were malicious and willful.  Because the officers are not entitled to official immunity, the city is not entitled to vicarious official immunity.  Accordingly, we reverse and remand to the district court for further proceedings.

FACTS

            On November 29, 2001, Officer Thomas Schmid was driving a Minneapolis Police Department detox van in which Officer Gordon Blackey was a passenger.[1]  While driving down Nicollet Avenue in downtown Minneapolis, the officers saw a Ford Bronco driven by Michael Litz run a red traffic light on 4th Street directly in front of them.[2]  Because the officers decided to stop the Bronco, they turned onto 4th Street, and activated the detox van's emergency lights and sirens. 

            Schmid testified in his deposition that at this point Litz began to pick up speed and drive erratically, running more red lights.  The officers followed Litz, but deactivated the detox van's lights and siren except when going through intersections.  Both officers testified that they did not consider themselves to be "in pursuit" of Litz.[3]  Schmid stated that he believed that Litz was fleeing and did not want to be stopped.  Schmid was trying to maintain visual contact with Litz's vehicle, get Litz to stop, and arrest him for a traffic violation.  According to Blackey, "It was pretty obvious that something was going to happen the way [Litz] was driving.  So [the officers] thought [they] would go on the route that [they] thought [Litz] had taken to see his results." 

            At the intersection of 4th Avenue and 7th Street, Litz ran a red light and struck Thompson, a pedestrian in the crosswalk.  Schmid and Blackey arrived at the intersection a short time later.  Blackey got out of the detox van and stayed at the scene while Schmid continued searching for Litz, who failed to stop after the accident.  Litz was apprehended on foot a short time later after he crashed and abandoned the Bronco. 

            Thompson sued Schmid, Blackey, and the City of Minneapolis, alleging that, in their pursuit of Litz, the officers operated the detox van negligently and in violation of police-department policy.  Respondents moved for summary judgment, contending that the officers are protected by official immunity and that the city is in turn protected by vicarious official immunity.  The district court granted respondents' motion.  This appeal follows.

D E C I S I O N

            On appeal from summary judgment, this court asks (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The applicability of immunity is a question of law, which is reviewed de novo.  Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).  The party asserting immunity bears the burden of showing particular facts demonstrating an entitlement to immunity.  Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 209 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). 

I.

A.        Failure to Continuously Operate Lights and Siren

Thompson argues that the court erred in holding that the officers are protected from liability by official immunity when the officers did not follow police-department policy requiring continuous operation of their vehicle's emergency lights and siren during police pursuits.[4]  The purpose of official immunity is to "protect[] public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties."  Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988).  The first step in determining whether the officers are protected by official immunity is to ascertain whether they were performing a discretionary or a ministerial act.  See Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998) (noting that the critical issue in official immunity claims is whether the conduct is discretionary or ministerial).  A discretionary act "requires the exercise of individual judgment in carrying out the official's duties."  Id.  Ministerial duties are those that are "absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts."  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (quotation omitted).  But if an act is ministerial, this court must determine whether or not the duty to perform that act was properly executed.  See Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 660 (Minn. 2004) (stating that "[t]he ministerial-conduct bar to official immunity arises when the allegation is that a ministerial duty was either not performed or was performed negligently"). 

If an act is discretionary, official immunity attaches unless the conduct was malicious or willful.  See Bailey v. City of St. Paul, 678 N.W.2d 697, 700-01 (Minn. App. 2004) (noting that public officials performing discretionary actions in the course of their official duties are protected from liability by official immunity unless those acts are malicious or willful), review denied (Minn. July 20, 2004). 

At common law, official immunity protected public officials when they were charged with the execution of discretionary, but not ministerial, duties.  Anderson, 678 N.W.2d at 655.  In its recent decision in Anderson, the Minnesota Supreme Court held that officials are also sheltered by official immunity when they faithfully execute a ministerial duty.[5]  Id. at 659-60.  It is well-established, however, that common law official immunity does not apply "when the liability is alleged to arise from the failure to perform or from the negligent performance of a ministerial duty."  Id. at 660.

Respondents contend that the "decisions of police officers to engage in and to continue vehicular pursuit of fleeing criminal suspects are protected by official immunity."  Respondents further argue that the failure of the officers to continuously use emergency lights and sirens does not alter the discretionary nature of their actions so as to defeat official immunity. 

It is true that police responses in situations such as that presented here constitute emergency situations to which official immunity typically applies.  See Nelson v. Wrecker Servs., Inc., 622 N.W.2d 399, 401 (Minn. App. 2001) (stating that police responses in circumstances similar to those here constitute emergency situations in which official immunity usually applies).  When an official must make decisions with little time for reflection and on the basis of incomplete information, "[i]t is difficult to think of a situation where the exercise of significant, independent judgment and discretion would be more required."  Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992).  But such discretion may be conditioned on the performance of a ministerial duty.  Nelson, 622 N.W.2d at 403. 

In Nelson, this court held that a city policy governing emergency responses could create a ministerial duty for police vehicles to activate sirens and lights before proceeding through a red traffic light.  Id.  The discretion of officers to disregard traffic lights when responding to emergencies thus depended on the use of such emergency signals.  Id. (holding that "the freedom to disregard a semaphore arises only in the event that the driver employs both the siren and lights").  "Without compromising the law in any respect regarding the importance of police discretion in emergency circumstances, there can be no question that immunity may be dependent on ministerial duties."  Id. (emphasis added). 

            Respondents contend that applying the reasoning of Nelson to the present case would "ignore[] significant subsequent precedent to the contrary."[6]  But two of the three cases cited by respondents in support of this proposition actually predate Nelson.[7]  Moreover, all of these cases are distinguishable from the present situation.

            In Kari, an ambulance responding to an emergency struck and injured the plaintiff as she attempted to cross a street in a crosswalk.  582 N.W.2d at 923.  The plaintiff argued, among other things, that the paramedic driving the ambulance was not entitled to official immunity because he violated a statute requiring all vehicles, including emergency vehicles, to yield to pedestrians in crosswalks.  Id.  The supreme court found for the defendant, holding that

[f]or public employees driving on emergency missions, immunity should not turn on whether specific traffic regulations do or do not apply to public employees driving an emergency vehicle responding to an emergency, but rather on whether the wrongful act so unreasonably put at risk the safety and welfare of others that as a matter of law it could not be excused or justified.

 

Id. at 925.  In so ruling, however, the court focused on the specifics of the situation, and expressed concern that public officials not be subjected to second-guessing when required to make split-second decisions in the face of changing circumstances when responding to emergencies.  Id. at 923-24.

            The situation here is closer to that in Nelson.  The Minneapolis police pursuit policy states that "[o]fficers shall use red lights and siren in a continuous manner" when engaged in vehicular pursuit.  Pursuit Policy at § 7-405 (emphasis added).  The duty to activate emergency lights and siren does not involve a split-second choice between alternatives and is not subject to changing circumstances, but rather applies whenever officers initiate a pursuit. 

            The other cases cited by respondents, Bailey and Kelly v. City of Minneapolis, 598 N.W.2d 657 (Minn. 1999), are similarly distinguishable.  In Bailey, a woman died after being improperly intubated by an ambulance crew.  678 N.W.2d at 699.  The supreme court held that the crew was protected by official immunity despite the presence of departmental protocols governing intubation under certain circumstances, because "[i]n treating the unconscious [patient], the ambulance crew was not presented with ‘fixed and designated facts' giving rise to ‘absolute, certain and imperative' execution of a ‘specific duty.'"  Id. at 703 (citation omitted).  Likewise, in Kelly, a police officer's use of force in making an arrest was covered by official immunity, despite the presence of extensive regulations relating to police conduct, because the circumstances surrounding arrests "d[id] not involve the ‘fixed and designated facts' and ‘absolute, certain and imperative' duties of a ministerial act."  598 N.W.2d at 665.

            Here, in contrast, the circumstances do involve an "absolute, certain, and imperative" duty "arising from fixed and designated facts."  Wiederholt, 581 N.W.2d at 315 (quotation omitted).  Whether or not to operate a vehicle's emergency lights and siren does not "require[] the exercise of judgment by the officer based upon the objective circumstances of the moment."  Kelly, 598 N.W.2d at 665.  Instead, the duty arises whenever officers engage in a vehicular pursuit.[8]  See Pursuit Policy at § 7-405.  Thus, as in Nelson, the immunity of the officers is conditioned on their performance of a ministerial dutythe duty to continuously operate their lights and siren during the pursuit.

At oral argument, respondents suggested that a departmental policy can never create a ministerial duty.  We disagree.  In determining whether there was a ministerial duty for the officers to continually operate the detox van's red light and siren during the pursuit, it is not relevant that the duty arose from police-department policy rather than a statute or ordinance.  To hold otherwise would render meaningless duties imposed by such policies.  In Anderson, the supreme court explicitly noted that

in applying the [ministerial duty] standard, we have not required that a duty be imposed by law in order to be ministerial. . . . [I]t is inherent in the concept of ministerial duty that the duty must dictate the scope of the employee's conduct.  Because the common law official immunity analysis always involves evaluation of government employee conduct, that control will most often emanate from a statute, rule, ordinance or other official standard.  But there is no logical reason that a sufficiently narrow standard that does not meet an "imposed by law" criterion should not similarly make the conduct ministerial if the employee is bound to follow the standard.

 

678 N.W.2d at 659 (emphasis added) (citations omitted) (holding that a ministerial duty had been established by an unwritten school policy). 

The issue then becomes whether the officers were engaged in a vehicular pursuit.  The duty to operate a vehicle's emergency lights and siren begins when a vehicular pursuit begins and continues until that pursuit is terminated.  The Minneapolis police pursuit policy provides that "[a] vehicular pursuit occurs whenever an officer pursues a driver of a vehicle who has been given a signal to stop by the activation of red lights and siren, and the suspect or violator fails to comply and attempts to elude the officer by taking evasive action."  Pursuit Policy at § 7-404.  The Minneapolis police pursuit policy does not define "pursue."  Consequently, this court should apply the common usage.  See, e.g., State v. Hicks, 583 N.W.2d 757, 759 (Minn. App. 1998) (noting, in a statutory context, that where a term is not defined, the court should apply a "common and approved usage"), review denied (Minn. Oct. 20, 1998).  According to The American Heritage Dictionary 1471 (3d ed. 1992), pursue means "[t]o follow in an effort to overtake or capture[.]" 

Both Schmid and Blackey testified that they did not consider themselves to be in pursuit of Litz, but their actions indicate otherwise.  When Litz ran the red light, the officers signaled him to stop by activating their vehicle's lights and siren.  Litz did not stop, but instead speeded up and "continu[ed] to drive erratically."  Schmid testified that he believed that Litz was fleeing.  Schmid also testified that he was following Litz with the intention of making "a traffic law enforcement stop," and that his objective was to question or arrest Litz.  The officers were, therefore, pursuing Litz within the plain meaning of the term.  As a result, they were engaged in a vehicular pursuit of Litz, and had a ministerial duty to continuously operate the vehicle's emergency lights and siren until that pursuit ended.

Upon termination of pursuit, the officers "shall notify dispatch and: 1.  Reduce speed to the posted speed limits.  2.  Turn off emergency lights and sirens.  3.  Turn off the pursuit route at the next available intersection."  Pursuit Policy at § 7-408 (emphasis added).  A pursuit is not "considered to be terminated" until the officers take these actions.  Id. at § 7-404.  Both officers testified that they knew that police policy required them to turn off the pursuit route at the next available intersection to terminate the pursuit.  Nonetheless, the officers did not turn off the pursuit route, but continued to follow Litz in an attempt to arrest him.  The pursuit did not end until after Litz struck appellant.  Therefore, the officers had a ministerial duty to continuously operate their lights and siren at least until this time.  But the officers have admitted that they did not do so.  Because they failed to properly perform this duty, official immunity does not apply.[9]  See Anderson, 678 N.W.2d at 660 (noting that official immunity is inapplicable when liability is alleged to arise because "a ministerial duty was either not performed or was performed negligently.").  Consequently, the district court erred in granting summary judgment in favor of the respondent officers. 

B.        Failure to Call Off Pursuit

Appellant also argues that the officers violated the pursuit policy by failing to call off the pursuit after losing sight of Litz.  Respondents contend that this court should not consider this issue because appellant failed to raise it to the district court.

As a general rule, appellate courts will not consider issues that were not presented to or decided by the district court.  Watson v. United Servs. Auto. Ass'n, 566 N.W.2d 683, 687 (Minn. 1997); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  "An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below."  Thiele, 425 N.W.2d at 582-83.  Here, appellant's memorandum to the district court in opposition to summary judgment quotes, as part of a lengthy recital of the Minneapolis police pursuit policy, the portion of the pursuit policy requiring termination of pursuit when visual contact is lost for "approximately 10-15 seconds."  However, appellant points to no evidence in the record indicating that this issue was argued to the district court, or that any special relevance of this passage was noted by appellant.  Thus, we will not consider this issue.

II.

Where a public official is entitled to official immunity, a municipal employer is normally entitled to vicarious official immunity.  See Pletan, 494 N.W.2d at 42 (noting that "[g]enerally, if the employee is found to have immunity, the claim against the municipal employer has been dismissed without any explanation").  But where, as here, the officials are not entitled to official immunity, vicarious official immunity will not protect the city.  See Wiederholt, 581 N.W.2d at 316 (holding that because a city inspector was not entitled to official immunity, the city was not entitled to vicarious official immunity).  Thus, the district court erred in granting summary judgment in favor of the city.

            Reversed and remanded.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] The detox van is fully marked as a police vehicle. 

[2] It was later established that Litz had stolen the Bronco. 

[3] Officer Schmid said that he was "in pursuit" of Litz through the first two intersections because he could see Litz; however, "once [Schmid] lost sight of [Litz], . . . [Schmid] was not in pursuit."  

[4]Under the Minneapolis Police Department pursuit policy officers are to "use reasonable professional judgment" in deciding to initiate pursuits.  Minneapolis Police Dep't Special Order, No. S01-047, § 7-403 (Manual Revision, Nov. 20, 2001) [the "Pursuit  Policy"].  The policy provides that "[a] vehicular pursuit occurs whenever an officer pursues a driver of a vehicle who has been given a signal to stop by the activation of red lights and siren, and the suspect or violator fails to comply and attempts to elude the officer by taking evasive action."  Id. at § 7-404.  While engaged in a vehicular pursuit, "[o]fficers shall use red lights and siren in a continuous manner."  Id. at § 7-405.  The policy also requires officers to discontinue pursuit when they "lose[] visual contact of the offender for a significant period of time (approximately 10-15 seconds)."  Id.  Upon termination of pursuit, the officers "shall notify dispatch and: 1.  Reduce speed to the posted speed limits.  2.  Turn off emergency lights and sirens.  3.  Turn off the pursuit route at the next available intersection."  Id. at § 7-408.  A pursuit is "considered to be terminated when the officer discontinues the use of all emergency equipment and slows the squad car to the posted speed limit and turns off the pursuit route at the next available intersection."  Id. at § 7-404.

[5] Prior to Anderson, officials who faithfully executed a ministerial duty were protected from liability, not because of official immunity, but because their actions in properly carrying out such duties were not negligent as a matter of law.  See Anderson, 678 N.W.2d at 667 (Gilbert, J., dissenting) (citing Olson v. Ramsey County, 509 N.W.2d 368, 373 (Minn. 1993)).

[6] Citing Kari,582 N.W.2d at 923; Bailey, 678 N.W.2d at 702; Kelly v. City of Minneapolis, 598 N.W.2d 657, 665 (Minn. 1999). 

[7] One of the cases, Kari, was actually distinguished by Nelson.  See Nelson, 622 N.W.2d at 401€‘02 (noting that the driver in Kari had activated his emergency lights and siren).

[8] Both officers testified that they were familiar with this requirement. 

[9] Because we conclude that the officers had a ministerial duty to operate their lights and siren, we do not reach the issue of whether their actions were willful and malicious.