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Monnens v. Speeter12/28/2004
Following a single-vehicle accident, appellant Kristy Rae Monnens, as Trustee for the Heirs of Kristal Monnens, brought this wrongful-death action against respondent City of Orono, alleging that the city was negligent in failing to place warning signs at the accident scene and in leaving a dangerous drop-off between the road's pavement and shoulder. In this appeal from a summary judgment for the city based on immunity, appellant argues that (1) vicarious official immunity does not apply to the decision to leave the drop-off because an affidavit on which the district court relied was not properly before the court, the city did not identify the official who made the decision, and the defect was patently hazardous; and (2) discretionary immunity is not available for failure to properly place signs at the curve where the accident occurred because signage was mandatory and its placement was not discretionary. We affirm.
FACTS
Kristal Monnens (Monnens) was killed in a single-vehicle accident that occurred at night on North Arm Drive in the City of Orono in May 2001. Monnens had spent the evening with a group of friends, including Mark Speeter and Erica Ribe. Both Speeter and Ribe were driving cars, and Monnens was a passenger in Speeter's car.
Shortly before the accident, Ribe's car was ahead of Speeter's car on North Arm Drive. Then Speeter pulled into the oncoming traffic lane alongside Ribe's car, and Ribe accelerated for a second or two. Speeter also accelerated, passed Ribe, and pulled back into the right lane. A few seconds later, Speeter approached a curve in the road at the top of a small hill, veered off the roadway, and collided with a tree.
The road curved to the left over the top of the hill, but due to an opening in the shrubbery near the road and to pavement on a driveway, it appeared to Speeter that the road curved to the right. There was a five-inch drop between the pavement and the shoulder where the right side of the car left the pavement and a six-inch drop where the rest of the car left the road.
Orono Police Officer Bruce Anderson, who investigated the accident scene the night of the accident, determined that the accident was caused by a combination of Speeter's excessive speed and inexperience as a driver. Anderson calculated the speed of Speeter's car to be 64 m.p.h. when it left the pavement. Speeter was 16 years old and had obtained his license in March 2001.
Accident reconstructionist Jerry Kaproth opined that the five- to six-inch pavement height was "extremely dangerous" and that the height of the pavement lip was a "significant factor" in causing the accident. Kaproth stated in an affidavit that the high pavement edge caused Speeter to lose control of his vehicle and that, if Speeter had not lost control, he would have had sufficient time and distance to take appropriate corrective action and would have avoided hitting the tree. Kaproth also opined that " he relatively tight radius of the curve, the grade, rural setting, and lack of appropriate road markings made the site of this accident a hazardous situation." Kaproth calculated the speed of Speeter's vehicle at impact to be 45 to 50 m.p.h.
North Arm Drive is a rural residential street that travels in a semi-circle around Lake Minnetonka's North Arm Bay and Lakeview Golf Course and connects with Hennepin County Road 19 at both ends. The posted speed limit is 30 m.p.h. According to the City of Orono's community management plan and the Minnesota Manual of Uniform Traffic Control Devices (MMUTCD), North Arm Drive is considered a low traffic volume (less than 600 vehicles per day), rural collector street. One of the purposes of the community man
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