U N P U B L I S H E D O P I N I O N
KIRK, Judge Appellant, Delmer V. Fladwood, was seriously injured by a log that hit him during a City of St. Paul tree-removal project. The district court granted summary judgment in favor of respondent, City of St. Paul, on the basis of vicarious official immunity. Fladwood contends that the district court erred by granting summary judgment because the act of removing a tree is a ministerial duty, not a discretionary duty. We reverse and remand. FACTS In January 2013, the City of St. Paul sent its forestry crew to remove a tree at the corner of Randolph Ave. and Victoria St., across the street from the Spot Bar. The crew removed the top portion of the tree and planned to fell the remaining trunk into the street. The crew leader decided to use logs from the top portion of the tree, each weighing several hundred pounds, to establish a “crash pad” for the trunk. A crash pad is a pile of logs placed to cushion a tree’s fall in order to prevent damage to streets and sidewalks. The crew routinely used crash pads at the time the tree was removed. The crew leader believed that a crash pad was necessary to protect the street, and the crew constructed the crash pad in the middle of the street where they expected the tree’s remaining trunk to fall. Several bystanders watched as the forestry crew removed the tree. American National Standards Institute tree-removal standards, which the City of St. Paul has adopted, require bystanders to remain outside of a safe-work zone when a tree is removed. The safework zone extends to a radius of twice the height of a tree when a tree is removed. The crew is responsible for keeping bystanders outside of the safe-work zone. The tree in this case was approximately 27 feet tall when it was removed, thus the safe-work zone extended 54 feet from the base of the tree. Fladwood was at the Spot Bar for drinks with friends and had stepped outside just before the tree fell. He was standing behind the crew leader and outside of the safe-work zone. The crew leader knew Fladwood was behind him and outside of the safe-work zone, and did not ask Fladwood to move further away because he believed Fladwood was in a safe place. The trunk fell onto the crash pad as expected. But a large log unexpectedly shot out from the crash pad, striking both the crew leader and Fladwood and knocking them to the ground. Although the log did not injure the crew leader, it seriously injured Fladwood. Fladwood was taken to the hospital, where he underwent emergency surgery to repair an artery in his leg. Fladwood spent more than three months in the hospital and underwent five surgeries. In October 2014, Fladwood sued the City of St. Paul alleging negligence. The City of St. Paul moved for summary judgment, arguing that vicarious official immunity bars Fladwood’s claim. The district court granted the City of St. Paul’s motion for summary judgment, concluding that vicarious official immunity applies because the crew leader’s decisions to construct the crash pad and to refrain from moving Fladwood any further from the safe-work zone involved judgment and discretion. Fladwood appeals.
D E C I S I O N On appeal from summary judgment, we review de novo whether there are any genuine issues of material fact and whether the district court erred in applying the law. Ruiz v. 1st Fid. Loan Servicing, LLC, 829 N.W.2d 53, 56 (Minn. 2013). “We view the evidence in the light most favorable to the party against whom summary judgment was granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). A genuine issue of material fact exists when there is sufficient evidence that could lead a rational trier of fact to find for the nonmoving party. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). The doctrine of official immunity protects public officials against personal liability for discretionary conduct unless the public official is guilty of a willful or malicious wrong. Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014). The purpose of the doctrine is to “enable public employees to perform their duties without fear of personal liability that might inhibit the exercise of their independent judgment.” Id. The doctrine “must be narrowly construed in light of the fact that it is an exception to the general rule of governmental liability.” Cairl v. State, 323 N.W.2d 20, 23 (Minn. 1982) (quotations omitted). A government entity may claim vicarious official immunity for the conduct of its public officials when the official’s conduct requires judgment or discretion, even at an operational level. Vassallo, 842 N.W.2d at 462; Schroeder v. St. Louis County, 708 N.W.2d 497, 508 (Minn. 2006). Examining whether official immunity applies requires the district court to identify the conduct at issue and then to determine whether the conduct is discretionary or ministerial. Vassallo, 842 N.W.2d at 462. We apply a de novo standard of review to a district court’s determination that official immunity applies. Id. We begin by identifying the conduct at issue. Fladwood argues that the conduct at issue is the “overall act” of “cutting down a tree.” The City of St. Paul contends that the conduct at issue includes the crew’s (1) decision to construct a crash pad and (2) decisions regarding where bystanders could stand outside of the safe-work zone. The supreme court’s opinion in Williamson v. Cain, 310 Minn. 59, 245 N.W.2d 242 (1976), is instructive in identifying the conduct at issue. In Williamson, the supreme court considered how to characterize the conduct of state employees tasked with removing a house. 310 Minn. at 60-61, 245 N.W.2d at 243-44. Although the court acknowledged that removing a house involves many individual discretionary decisions, the court characterized the conduct at issue as the “simple and definite,” overall task of “remov[ing] a house.” Id. at 61, 245 N.W.2d at 244. This case is analogous to Williamson. Here, as in Williamson, the crew faced many individual discretionary decisions in determining how to remove the tree. But the crew’s overall task was “simple and definite,” to remove the tree. See id. For this reason, we conclude that the overall task of removing a tree is the appropriate characterization of the conduct at issue. We next consider whether the conduct at issue is discretionary or ministerial. Discretionary conduct involves “individual professional judgment that necessarily reflects the professional goal and factors of a situation.” Vassallo, 842 N.W.2d at 462 (quotations omitted). Ministerial conduct “is absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.” Id. (quotations omitted).1 The City of St. Paul argues that the conduct at issue is discretionary because removing a tree involves discretionary decisions based on the forestry crew’s professional judgment. But the mere fact that conduct requires some discretionary decision-making does not render the entire act to be discretionary. See Cairl, 323 N.W.2d at 23 (“[A]lmost every act involves some measure of discretion, and yet undoubtedly not every act of government is entitled to discretionary immunity.”); Williamson, 310 Minn. at 61, 245 N.W.2d at 244 (noting “almost any act involves some measure of freedom of choice” but that did “not entitle [the officials] to immunity from suit”). Further, “[o]fficial immunity typically protects the conduct of public officials responding to uncertain circumstances that require the weighing of competing values on the grounds that these circumstances offer little time for reflection and often involve incomplete and confusing information such that the situation requires the exercise of significant, independent judgment and discretion.” Shariss v. City of Bloomington, 852 N.W.2d 278, 282 (Minn. App. 2014) (quotations omitted). Minnesota courts are more likely to find official immunity in cases involving time pressure and quick decisions and less likely to find immunity in cases where public officials have ample time for consideration. Compare Vassallo, 842 N.W.2d at 462 (noting immunity protects police officers responding to emergencies because there is “little time for reflection”), with Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 220 (Minn. 1998) (“Nothing about that decision requires the kind of split-second decision-making involved in a police officer deciding, for instance, whether to begin or continue a high-speed chase.”). Viewing the facts in the light most favorable to Fladwood, we conclude that the conduct in this case was ministerial. A forestry supervisor compiled a list of trees for the crew to remove, which included the tree at issue. The crew met to formulate a plan before removing the tree and had plenty of time to consider whether to use a crash pad, where to place the crash pad, and where to position bystanders before letting the tree fall. The crew’s task to remove the tree was “absolute, certain, and imperative,” requiring “merely the execution of [that] specific duty.” Vassallo, 842 N.W.2d at 462 (quotations omitted). Hence, the City of St. Paul is not protected by vicarious official immunity and the district court erred by granting summary judgment on that basis. Reversed and remanded.
