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Armstrong v. County of Sherburne12/12/2000
Maplewood, 582 N.W.2d 921, 923 (Minn. 1998). An act is ministerial, and thus not protected by official immunity, when it is "absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts." Id. (quotation omitted). A discretionary act, which is protected, is one in which an official must exercise judgment or discretion. Elwood, 423 N.W.2d at 677. Official immunity protects from liability the kind of discretion that is exercised on an operational level rather than a policymaking level. Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992).
A determination of official immunity requires a two-step inquiry: (1) whether the act required the exercise of judgment and discretion and is therefore the type of conduct covered by official immunity; and (2)áwhether the alleged act, even though of the type covered by official immunity, was malicious or willful and therefore not entitled to protection. See Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997). Armstrong does not allege that the county acted in a malicious or willful manner.
We conclude that the deputy's conduct at issue in this case required the exercise of his judgment and discretion and is, therefore, entitled to official immunity. Further, because the deputy is immune from liability, the county is vicariously immune from liability. Vicarious official immunity protects a governmental entity from a suit based on the acts of an employee who is entitled to official immunity. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998). The supreme court has concluded that "it would be anomalous" to impose liability on the government employer for the very same acts for which the employee receives immunity. Id. (quotation omitted).
The deputy testified that the person who normally served as the "agitator" had not shown up for the exercises on the day Armstrong was injured. He then had to determine whether to cancel the demonstration for the Girl Scouts or to go forward using a volunteer. The deputy's decision to go forward with the demonstration was discretionary, not ministerial. A discretionary decision is one involving individual professional judgment that reflects the professional goal and factors of a situation. Id. at 315. The deputy used his individual professional judgment in deciding to proceed using a volunteer in place of the agitator. Nothing in the record shows that the deputy made his decision based on a specific duty or policy.
The district court concluded that official immunity did not apply because no "emergency situation confronted [the deputy] at the time of the incident. He did not have to make a split-second judgment call * * * ." But the court cites no authority for its proposition that officials are only immune from liability if they are acting in emergency situations. To the contrary, this court has held that an emergency situation is not a necessary condition for official immunity to apply. Duellman v. Erwin, 522 N.W.2d 377, 380 (Minn. App. 1994), review denied (Minn. Dec. 20, 1994) (holding that police officer's decision to return to accident scene was discretionary because "it involved weighing some factors, albeit not in an emergency situation.").
Because we conclude that Sherburne County is entitled to vicarious official immunity, we need not determine whether Armstrong assumed the risk of her injuries. In light of our conclusion, it is also unnecessary for us to consider the county's argument that statutory immunity applies or Armstrong's argument that the county is liable under Minn. Stat. §á347.22 (1998), the "dog-bite" statute.
Affirmed.
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