Dorene Larson, as Trustee for the heirs of Megan Marie Lehner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1861

Dorene Larson, as Trustee for the heirs of Megan Marie Lehner,
Appellant,

vs.

Joseph Robert Schramel,
Respondent,

Ashley Marie Gieseke,
Defendant,

State of Minnesota,
Respondent.

Filed June 10, 2019
Affirmed
Bjorkman, Judge

Wright County District Court
File No. 86-CV-17-3762

Michael A. Bryant, Bradshaw & Bryant, PLLC, Waite Park, Minnesota (for appellant)

Angela C. Shackleford, LaBore, Giuliani & Viltoft, Ltd., Hopkins, Minnesota (for
respondent Joseph Schramel)

Keith Ellison, Attorney General, Julianna F. Passe, Assistant Attorney Gen eral, St. Paul,
Minnesota (for respondent state)

Considered and decided by Florey, Presiding Judge; Connolly, Judge; and
Bjorkman, Judge.

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant, next-of-kin of a passenger killed in a head -on motor-vehicle collision,
challenges summary judgment dismissing negligence claims against the driver of the other
vehicle and the State of Minnesota. Because appellant did not produce competent evidence
of the other driver’s negligence and because the state is statutorily immune from liability,
we affirm.
FACTS
Ashley Marie Gieseke turned the wrong way onto divided Minnesota State Highway
23 (MN 23) after exiting from west-bound Interstate 94 (Highway 94) on the morning of
November 29, 2014. While proceeding in a southwesterly direction on MN 23 in what she
perceived to be the right-hand lane, she encountered respondent Joseph Robert Schramel ,
who was approaching from the opposite direction in the same lane. Neither driver saw the
other until it was too late. While they both attempted to steer out of the way, the vehicles
collided. Gieseke’s passenger, Megan Marie Lehner, died at the scene.
MN 23 is a four-lane highway divided by a wide median. As Gieseke approached
MN 23 from the Highway 94 off-ramp, she encountered several signs on both sides of the
intersection. A post to her right displayed a one -way sign, a stop sign, and a divided
highway sign; a post to her left displayed a one -way sign and a stop sign . A divided-
highway sign had been installed on the left side, but it disappeared in 2009 or 2010. In the
median to Gieseke’s left, there was a posted do-not-enter sign and a posted one-way sign.

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Despite these numerous warnings, Gieseke turned left before the median, directly into the
path of eastbound traffic.
Members of the Minnesota State Patrol spoke with both drivers at the scene and
investigated the circumstances of the collision. The lead investigator prepared an accident-
reconstruction report (report) in which he ruled out weather, speed, or the mechanical
condition of the vehicles as factors that contributed to the accident. The report concludes
that the collision was caused by Gieseke traveling the wrong way on MN 23 in violation
of Minn. Stat. § 169.18, subd. 6 (2018), and her operation of a vehicle in violat ion of her
instruction permit.
Lehner’s next of kin, appellant Dorene Larson, commenced this action alleging both
drivers were negligent and that respondent State of Minnesota was negligent because it did
not detect and replace the missing divided -highway sign at the entrance to MN 23.
Schramel and the state moved for summary judgment. 1 The district court granted the
motions. Larson appeals.
D E C I S I O N
Summary judgment is proper if “there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.0 1. In
opposing summary judgment, a party may not rely on “mere averments in the pleadings or
unsupported allegations but must come forward with specific facts to satisfy its burden of
production.” Id. We review de novo whether there are genuine fact issues and whether

1 Larson settled her claim against Gieseke and recovered underinsured-motorist benefits.

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the court erred in applying the law. Fenrich v. The Blake School , 920 N.W.2d 195, 201
(Minn. 2018).
I. Larson did not present competent evidence to establish that Schramel was
negligent.

To prevail on a negligence claim, a plaintiff must prove “(1) the existence of a duty
of care, (2) a breach of that duty, (3) an injury, and (4) the breach of that duty being the
proximate cause of the injury.” Id. Summary judgment is appropriate when the nonmoving
party fails to establish an essential element of a claim for which that party has the burden
of proof. Bebo v. Delander , 632 N.W.2d 732, 737 (Minn. App. 2001), review denied
(Minn. Oct. 16, 2001).
Minnesota d rivers have a duty to exercise reasonable care, including keeping a
proper lookout and keeping their vehicles under control. Fisher v. Edberg , 176 N.W.2d
897, 902 (Minn. 1970); see Sundeen v. Barthel, 63 N.W.2d 267, 272 (Minn. 1954) (“It is
. . . the duty of every operator of a motor vehicle upon the highways of this state to keep
his vehicle under control, to keep a proper lookout, and to exercise due care to avoid danger
or dangerous circumstances of which he has become aware . . . .”); Thompson v. Hill, 366
N.W.2d 628, 631 (Minn. App. 1985) (stating a driver owes a “duty to operate [a] car with
reasonable care”). Drivers also have a duty to comply with traffic laws, including obeying
traffic-control signs. Minn. Stat. § 169.06, subd. 4(a) (2018). Violation of a traffic law is
prima facie evidence of negligence. Minn. Stat. § 169.96(b) (2018); Marshall v. Galvez,
480 N.W.2d 358, 361 (Minn. App. 1992).

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At issue here is whether Larson produced evidence sufficient to defeat summary
judgment on the second element of her negligence claim—breach of duty. Normally, the
question of whether a driver exercised reasonable care is for the jury to decide . But
summary judgment is warranted when “the evidence as a whole discloses no reasonable
basis upon which the jury could have found [the driver] negligent.” Coble v. Lacey , 90
N.W.2d 314, 321 (Minn. 1958).
Larson’s sole claim is that Schramel breached his duty to keep a proper lookout at
the time of the collision.2 Larson argues that “where each of the vehicles came from before
the crash” and their locations after the accident demonstrate that Schramel should have
seen Gieseke’s vehicle approaching “from at least several hundred yards away.” But
Larson did not offer evidence establishing Schramel’s location when he saw Gi eseke’s
vehicle, the precise speeds of the two vehicles in the moments before the accident, or the
distance Schramel traveled after he observed Gieseke’s vehicle. Schramel testified that he
first saw Gieseke’s vehicle when it was on a bridge ahead of him. But he saw only the roof
and assumed the vehicle was driving in the same direction as he was. Nothing in his
deposition testimony, statements to investigators at the scene, nor the limited accident -
reconstruction evidence even hint at some thing Schramel could have done to avoid the
collision. Both drivers described the collision as occurring within seconds of seeing each

2 At oral argument, Larson suggested Schramel’s speed may have contributed to the
accident. But Larson did not make this argument to the district court nor did she offer any
other facts in her appellate briefs suggesting that Schramel failed to maintain proper control
of his vehicle. The posted speed limit on MN 23 is 65 miles per hour (mph), with a posted
55-mph advisory near the intersection with Highway 94. Schramel testified that he was
driving about 60 mph when he saw Gieseke’s vehicle.

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other. Gieseke described the time between when she first saw Schramel and when she
steered away to avoid the collision as “instantaneous.” And she testified that “from the
time I turned my wheel, I blinked, and when I opened my eyes, I was already in the ditch.”
On these facts, a jury could only speculate as to whether Schramel failed to keep a proper
lookout or otherwis e engaged in unreasonable driving conduct that contributed to the
collision. See Bob Useldinger & Sons, I nc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn.
1993) (stating that “[m]ere speculation, without some concrete evidence, is not enough to
avoid summary judgment”).
In Hastings v. United Pac. Ins. Co., we addressed a similar issue in a case involving
a head-on collision that occurred after a driver veered out of his lane and into the lane of
an oncoming intoxicated driver. 396 N.W.2d 682, 683 (Minn. App. 1986). We affirmed
summary judgment in favor of the intoxicated driver because the nonmoving party did not
demonstrate “material facts show ing actual negligence” or “that the intoxication
contributed to cause the injury.” Id. at 684 (quotations omitted). Likewise, this record
contains no evidence that Schramel breached his duty to keep a proper lookout , violated
traffic laws, or unreasonably responded to the danger represented by Gieseke’s oncoming
vehicle. Lehner’s tragic death does not change the fact that no competent evidence points
to Schramel’s negligence. Accordingly, he is entitled to summary judgment. 3

3 Larson asserts that “the trial court . . . completely overlooked the possibility that more
than one party can be at fault in a collision.” Larson is mistaken. The district court
considered various other possible causes of the collision but concluded that Larson offered
no material facts to support them.

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II. The state is immune from liability for claims arising from its failure to detect
and replace the missing divided-highway sign.

Under the Minnesota Tort Claims Act, the state may be liable for the “death caused
by an act or omission of an employee of the state while acting within the scope of office or
employment” under certain circumstances. Minn. Stat. § 3.736, subd. 1 (2018). But the
state is immune from liability for claims of “loss caused by the performance or failure to
perform a discretionary duty, whether or not the discretion is abused.” Minn. Stat. § 3.736,
subd. 3(b) (2018). Statutory immunity is grounded on the principle of separation of
powers. Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 718 (Minn. 1988). The party
asserting this statutory defense has the burden to demonstrate entitlement to immunity.
Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).
In assessing a claim of immunity, we first identify the challenged governmental
conduct. Zaske v. Lee , 651 N.W.2d 527, 531 (Minn. App. 200 2), review denied (Minn.
Dec. 17, 2002). We distinguish planning-level decisions involving questions of public
policy, which are immune from suit, from operational-level decisions involving questions
of government day-to-day operations, which are not. Holmquist v. State, 425 N.W.2d 230,
232 (Minn. 1988). Placement of traffic signs “is not inherently either discretionary or
operational; classification depends on the factors considered in making the decision.”
Christensen v. Mower County , 587 N.W.2d 305, 307 (Minn. App. 1998). Statutory
immunity applies when signage decisions “involv[e] a balancing of social, political, or
economic considerations.” Zaske, 651 N.W.2d at 531.

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Larson argues that the state was negligent in failing to detect and replace the
divided-highway sign that went missing on the left side of the MN 23 intersection.4 She
contends that “in exercising reasonable care[,] [the state] should have had a special plan
for looking for missing signs like this, signs that were critical but would not be noticed by
most people if they went missing.” We consider whether the state’s claimed failure to do
so implicates the exercise of discretion.
Minnesota Department of Transportation (MnDOT) policy permits regional
MnDOT districts to develop procedures for detecting and replacing damaged or missing
traffic-control signs. Maintenance Supervisor Chad Stang averred in his affidavit that
District 3 , the relevant district here, maintains 54,000 traffic -control signs and requires
inspection and replacement of signs every 1 5-20 years. During the period between
scheduled inspections, District 3 “relies on the observations of law enforcement and the
public to notify it about missing or damaged signs.” Traffic Engineer Thomas Dumont
explained in his affidavit that District 3 prioritizes sign maintenance and replacement based
“on a number of factors, including the severity of the problem, cost effectiveness, safety
concerns, and available resources .” Dumont and Stang each stated that MnDOT has
insufficient funds to constantly inspect signs and that MnDOT necessarily relies on reports
of the public and law enforcement to identify signs that need to be replaced outside of the
normal replacement cycle. According to Dumont, District 3 adopted “[t]he response-to-

4 We note that the state was required to place a divided -highway sign at the right side of
the MN 23 intersection. 2011 Minnesota Manual on Uniform Traffic Control Devices ,
section 2B.42. But the state has the “option” to install an additional divided-highway sign
on the left-hand side of the intersection.

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complaint policy [as] a cost effective means of ensuring the prompt replacement or repair
of traffic control signs that appropriately balances safety concerns.”
In Zaske, this court affirmed summary judgment in favor of a county against
allegations that the county was negligent in failing to detect and replace a missing stop
sign. 651 N.W.2d at 529, 533. As in this case, the county adopted a sign detection-and-
replacement policy that “involved a balancing of budgetary, safety, and personnel
considerations.” Id. at 533. We rejected the argument that the county received constructive
notice of the missing sign as a direct attack on “the county’s conduct in formulating its
policy to detect problems with traffic-control devices.” Id. at 532. And we concluded the
county’s policy is protected by statutory immunity. Id. at 533; see also McEwen v.
Burlington N. R.R. , 494 N.W.2d 313, 317 (Minn. App. 1993) ( holding that statutory
immunity applies to claim of inadequate warning signs at a railroad crossing because the
state’s decision involved a “priority rating system that balances financial constraints,
limited funding, and safety considerations”), review denied (Minn. Feb. 2 5, 1993);
Wornson v. Chrysler Corp., 436 N.W.2d 472, 474-75 (Minn. App. 1989) (upholding a grant
of immunity on the state’s prioritization of placement of highway traffic signals as a
discretionary decision based on “balancing economic policy (available resources) with
safety conditions”), review denied (Minn. Apr. 26, 1989).
As in Zaske, the undisputed evidence here demonstrates that the state’s failure to
immediately replace the missing divided -highway sign was the result of a policy -making
decision. This balancing of budgetary and safety concerns is precisely the sort of policy
decision that is entitled to statutory immunity under Minn. Stat. § 3.736, subd. 3(b).

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Because the state has established that its failure to detect and replace the missing divided-
highway sign prior to the accident was the result of a policy decision, the state is entitled
to statutory immunity against Larson’s negligence claim.
Affirmed.