Douglas W. Wenker, et al., Respondents,

This opinion will be unpublished and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
A19-0011

Douglas W. Wenker, et al.,
Respondents,

vs.

Le Sueur County,
Appellant,

Shoreland Recreational Cooperative,
d/b/a Shoreland Country Club,
Defendant.

Filed July 22, 2019
Reversed
Johnson, Judge

Le Sueur County District Court
File No. 40-CV-18-145

Daniel J. Bellig, William S. Partridge, Joseph A. Gangi, Christopher A. DeLong, Farrish
Johnson Law Office, Chtd., Mankato, Minnesota (for respondents)

Joseph J. Langel, Nathan B. Shepherd, Ratwik, Roszak & Maloney, P.A., Minneapolis,
Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and
Peterson, Judge.

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

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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Douglas W. Wenker was injured while snowmobiling alongside County Road 21 in
Le Sueur County. He and his wife sued the county and a nearby landowner for negligence.
The county moved for summary judgment on the ground s of statutory discretionary
immunity, common-law official immunity, and statutory highway right-of-way immunity.
The district court denied the county’s motion with respect to each of the county’s immunity
defenses. We conclude that the county is not entitled to statutory discretionary immuni ty
but is entitled to common-law official immunity and statutory highway right-of-way
immunity. Therefore, we reverse.
FACTS
The Shoreland Country Club is located in Le Sueur County near the city of St. Peter.
The country club ’s golf course is bisected by County Road 21 , which runs along a
southwest-northeast axis at a slightly higher elevation than the golf course. In the 1980s,
the country club built a tunnel under County Road 21 to allow golfers to travel between the
two parts of the golf course without concern for vehicle traffic on the road. Because the
county owns a right-of-way easement on both sides of the county road, the country club
requested and received permission from the county to build the tunnel and install a concrete
culvert, with the county’s supervision and according to the county ’s specifications. The
concrete culvert is large enough for a golf cart. At both ends of the concrete culvert is a
paved cart path, which is below grade near the culvert but gradually conforms to the
elevation of the golf course.

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Since the 1970s, the county has maintained a standard policy of not marking objects
that are located in the rights-of-way along county roads. The county adopted this standard
policy for various reasons, inclu ding financial considerations and the safety of motorists.
The person who served as county engineer from the mid -1970s until 1993 described the
reasons for the standard policy as follows:
There are several culverts in every mile in Le Sueur County. It
would be a huge financial burden to try to mark each of these
culverts. Additionally, these objects are not marked because
everything you put in a ditch creates another hazard. Placing
hundreds of culvert markers in the ditches could create
distractions for the traveling public, including snowmobilers.
Such distraction poses a greater risk than the culvert itself.

The person who served as county engineer from 1999 to 2017 had discretion when
he began work in that position “to determine the County’s policy regarding whether to erect
or place a marker or delineator” at culverts in the county, without the need to discuss the
matter with the county’s board of commissioners. He explained his decision to retain the
county’s pre-existing policy as follows:
When I became County Engineer, I decided to continue
the County’s longstanding policy concerning culvert signage.
This was based on several common sense considerations,
including the sheer number of locations where such markers
or delineators would be needed (there are hundreds of culverts
that cross under County roads), the cost of placement and
maintenance of such markers or delineators, the hazards
created by such markers or delineators (generally speaking, the
fewer structures motorists can hit the better) , the risk of
distraction posed by such markers or delineators, the potential
for overuse of markers or delineators to dilute their
effectiveness and the effectiveness of other signs, the difficulty
of maintaining such markers or delineators, the difficult y of
maintaining the road and the road right-of-way if such markers
or delineators were used (they get in the way of snow plows),

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and the need to use the road right -of-way for non -road uses
such as utilities and drainage.

In 2000, there was a snowmobile a ccident at the tunnel and culvert under County
Road 21 that connects the two parts of the country club , and the accident gave rise to a
lawsuit that was appealed to this court and later was reviewed by the supreme court . See
Olmanson v. Le Sueur County, 673 N.W.2d 506 (Minn. App. 2004), aff’d, 693 N.W.2d 876
(Minn. 2005). The county engineer described the events following that accident as follows:
I was the County Engineer when the Olmanson accident
and subsequent lawsuit occurred. The issue whether t o install
markers at culverts was discussed within the County because
of allegations in that lawsuit. I determined that the rationale
for not signing that culvert or any other of the many culverts in
the County, had not changed. It simply is not good engineering
practice to do so, in my opinion. Furthermore, it is important
to understand that a road authority signs for the benefit of the
public travelling on the road. We do not sign or mark every
potential hazard in the ditches that may be problematic f or
people driving snowmobiles or ATVs. There are signed,
maintained snowmobile routes for use by snowmobiles;
County ditches are not designed or maintained for that purpose.

After the Olmanson accident, the country club asked the county to install a fence or sign at
the culvert, and the county declined the request because of its standard policy.
In the late afternoon of January 22, 2016, Wenker was driving his snowmobile along
the northwest side of County Road 21 in a southwesterly direction. He was thrown off the
snowmobile and was discovered by a passing motorist near the country club ’s culvert.
Because of his injuries, Wenker does not recall the incident or any event that occurred after
he left his home in the city of Elysian, approximately 20 miles away. A photograph of the
scene taken shortly after the incident shows a track in the snow indicating that he drove his

5
snowmobile to the right of the culvert but straight into the steep northeast -facing
embankment beside the cart path.
In February 2018, Wenker and his wife commenced this action against the county
and the Shor eland Recreational Cooperative, which owns and operates the country club
and its golf course. The Wenkers asserted a claim of negligence against each defendant.
They alleged that the county had a “duty to inspect and maintain the property subject to the
easement to ensure entrants are not exposed to unreasonable risks of harm,” which required
the county to “repair [dangerous] conditions, or provide [entrants] with adequate warnings
of the actual conditions or the risks involved in entering the property,” and that the county
breached its duty.
In September 2018, the county moved for summary judgment , arguing that it is
immune from suit on the grounds of statutory discret ionary immunity , see Minn. Stat.
§ 466.03, subd. 6 (2018) ; the common -law doctrine of vicarious official immunity ; and
statutory highway right-of-way immunity , see Minn. Stat. § 466.03, subd. 22 . In
November 2018, the district court issued a 15-page order in which it denied the county’s
motion with respect to each of the three immunities. With respect to statutory discretionary
immunity, the district court reasoned that the county was not immune because it did not
submit sufficient evidence that it engaged in a deliberative process resulting in a policy -
level decision. With respect to common-law official immunity, the district court reasoned
that the county was not immune from suit because it did not submit sufficient evidence that
it made a discretionary decision to not mark objects alongside county roads. With respect
to statutory highway right-of-way immunity, the district court reasoned that the county was

6
not immune from suit because of genuine issues of material fact concerning the county’s
knowledge of constant intrusions by snowmobilers and the inherent dangers posed by the
culvert. The county appeals.
D E C I S I O N
The county argues that the district court erred by denying its motion for summary
judgment and contends that it is entitled to three types of immunity.
As a general rule, a municipality “is subject to liability for its torts and those of its
officers, employees and agents acting within the scope of their employment or duties
whether arising out of a governmental or proprietary function .” Minn. Stat. § 466.02
(2018). But the general rule is subject to limitations and exceptions, including certain
immunities contained in chapter 466. See id.; Schroeder v. St. Louis County, 708 N.W.2d
497, 503 (Minn. 2006); Unzen v. City of Duluth, 683 N.W.2d 875, 882 (Minn. App. 2004),
review denied (Minn. Oct. 27, 2004). Because immunity from liability implies immun ity
from suit, a municipality may assert immunity in a pre -trial motion. Anderson v. City of
Hopkins, 393 N.W.2d 363, 363 -64 (Minn. 1986). A district court’s ruling on such a pre -
trial motion is immediately appealable because, if a case were to go to trial, a valid
immunity defense effectively would be lost. Id. at 364; see also Zank v. Larson , 552
N.W.2d 719, 721 (Minn. 1996).
A district court must grant a motion for summary judgment “if the movant shows
that 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. 56.01 (2018). A genuine issue of material fact exists
if a rational trier of fact, considering the record as a whole, could find for the nonmoving

7
party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008). This court
applies a de novo standard of review to the district court ’s legal conclusions on summary
judgment and views the evidence in the light most favorable to the party against whom
summary judgment was granted. Commerce Bank v. West Bend Mut. Ins. Co., 870 N.W.2d
770, 773 (Minn. 2015).
I. Statutory Discretionary Immunity
The county argues that the district court erred by denying its motion for summary
judgment with respect to its defense of statutory discretionary immunity.
Statutory discretionary immunity protects municipalities from liability for claims
“based upon the performance or the failure to exercise or perform a discretionary function
or duty, whether or not the discretion is abused. ” Minn. Stat. § 466.03, subd. 6. A
municipality is immune from liability for its “planning” decisions but not for its
“operational” decisions. Steinke v. City of Andover , 525 N.W.2d 173, 175 (Minn. 1994).
A p lanning decision is one that involves issues of public policy and the weighing of
competing social, economic, or political factors. Id. An operational decision is one that is
connected to the day -to-day operation of government. Id.; Watson ex rel. Hanson v.
Metropolitan Transit Comm’n, 553 N.W.2d 406, 412 (Minn. 1996).
In this case, the county contends that its decision to not mark the culvert was made
pursuant to its decades-long standard policy of not marking objects located in the rights-
of-way along all county roads. The county contends that its county engineer used
discretion when originally adopting the standard policy and that a successor county
engineer used discretion when deciding to retain the standard policy.

8
In Olmanson, the county made a very similar argument in support of its assertion of
statutory discretionary immunity in response to a very similar claim of negligence
concerning the very same culvert. But this court rejected the argument. The county argued
then that “its decision to leave off -road culverts unmarked was established by balancing
numerous policy considerations.” 673 N.W.2d at 514. The county submitted affidavits of
the then-current county engineer and two former county engineers, who collectively stated
that the county’s standard policy was based on multiple factors, which were summarized
by this court as follows:
(1) placing objects in a culvert or ditch creates a greater hazard;
(2) snow may cover the object and create a dangerous obstacle;
(3) off -road objects present a limited risk to pedestrians;
(4) overuse of signs can result in general disregard for all
traffic control devices; (5) the county ’s limited financial
resources; and (6) the culverts’ lack of impact on the width or
layout of the road.

Id. at 516. We reasoned that, in light of that evidence, the county
failed to produce even one specific fact concerning a
deliberative process that led to a “policy” decision to leave off-
road culverts unmarked. Instead, as counsel for respondent
conceded at oral argument, the engineer’s decision to leave off-
road culverts unmarked more closely resembles an established
practice merely passed down from one county engineer to the
next. This is borne out by current engineer Pettis’s deposition
testimony that he was told of this policy by the “sign man.” An
engineer’s action in following a practice because the county
has always followed that practice is not enough to prove that
the policy was established through a deliberative process
weighing social, economic, and political factors.

Id. a t 515. We concluded that the county was not entitled to statutory discretionary
immunity “because the county failed to produce evidence to prove when and how the

9
county went through a deliberative process balancing social, political, or economic
considerations and not merely professional or scientific judgments to establish its policy.”
Id. at 516.
In this case, the county’s evidence supporting its argument that it made a planning-
type discretionary decision to not mark culverts in 2016 is substantially the same as its
evidence in Olmanson. The same person was county engineer in 2000 and in 2016, and he
has stated in an affidavit that, after becoming county engineer in 1999 , he “decided to
continue the County’s longstanding policy concerning culvert signage” and did so because
“the rationale for not signing that culvert or any other of the many culverts in the County
had not changed. ” His deposition testimony is consistent with his affidavit: the county
maintained its standard policy after the Olmanson accident and lawsuit for the same reasons
that motivated the original adoption of the standard policy . The county ’s attorney asked
the former county engineer , “Was there thought given after the Olmanson case to do
anything different with that particular . . . crossing?” He answered simply, “No.” This
evidence fails to satisfy the legal standard we articulated in Olmanson because it is, as a
practical matter, nothing more than a reiteration of the evidence that was inadequate in
Olmanson, without any evidence of a different or an enhanced decision-making process.
For essentially the same reasons that were stated in our Olmanson opinion, we
conclude that the county is not entitled to statutory discretionary immunity.
II. Official Immunity
The county also argues that the district court erred by denying its motion for
summary judgment with respect to its defense of official immunity.

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The common -law doctrine of official immunity provides that “a public official
charged by law with duties which call for the exercise of his [or her] judgment or discretion
is not personally liable to an individual for damages. ” Vassallo ex rel. Brown v. Majeski ,
842 N.W.2d 456, 462 (Minn. 2014) (alteration in original) (quotation omitted). The
purpose of the official -immunity doctrine is to ensure that “individual government actors
[are] able to perform their duties effectively, without fear of personal liability that might
inhibit the exercise of their independent judgment. ” Kariniemi v. City of Rockford , 882
N.W.2d 593, 599-600 (Minn. 2016) (quotation omitted); see also Elwood v. County of Rice,
423 N.W.2d 671, 678 (Minn. 1988).
To determine whether a public official is entitled to official immunity, courts
conduct a three -step inquiry . A t the first step, courts identify “the conduct at issue. ”
Kariniemi, 882 N.W.2d at 600. At the second step, a public official ’s conduct will be
deemed discretionary in nature if it “requires the exercise of individual judgment in
carrying out the official’s duties.” Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn.
1998). A public official’s conduct will be deemed ministerial in nature if it arises from
duties that are “‘absolute, certain, and imperative, [and] involv[e] merely execution of a
specific duty arising fr om fixed and designated facts, ’” thereby “leaving nothing to the
discretion of the official.” Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 (Minn. 1999)
(alteration in original) (quoting Cook v. Trovatten, 274 N.W. 165, 167 (Minn. 1937)). At
the third step of the analysis, a public official who engaged in discretionary conduct will
be entitled to official immunity, unless his or her conduct was willful or malicious.
Kariniemi, 882 N.W.2d at 600; Kelly, 598 N.W.2d at 664. Meanwhile, a public official

11
who engaged in ministerial conduct will be entitled to official immunity unless the
ministerial duty “was either not performed or was performed negligently. ” Anderson v.
Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 660 (Minn. 2004). The doctrine
of vicarious official immunity sometimes, but not always, protects a municipality from
liability based on the conduct of an employee who is protected by official immunity. Id.
at 663-65; Wiederholt v. City of Minneapolis , 581 N.W.2d 312, 316 (Minn. 1998) ; Meier
v. City of Columbia Heights , 686 N.W.2d 858, 866 -67 (Minn. App. 2004), review denied
(Minn. Dec. 14, 2004).
In Olmanson, the county argued that its standard policy to not mark culverts in its
rights-of-way was protected by the doctrine of vicarious official immunity. Olmanson, 673
N.W.2d at 516. This court rejected the argument, stating that “the creation of a policy is a
planning-level decision and not operational conduct protected by official immunity. ” Id.
at 516-17. We explained, “Official immunity would protect the county official who makes
a discretionary operational decision while implementing the policy established at the
planning level” but that “the record does not reveal, and the county does not argue, that
any county employee made a discretionary decision in implementing the county’s practice
to leave off-road and small culverts unmarked.” Id. at 517.
In this case, the county argues that it is entitled to official immunity for two reasons.
First, it argues that its county engineer made discretionary decisions at the “operational
level.” Specifically, the county contends that its county engineer made a discretionary
operational decision when, shortly after the Olmanson accident, he declined the country
club’s request to mark the cul vert because, as the county asserts in its brief, “the specific

12
circumstances of this particular culvert did not warrant deviating from the County’s general
policy.”
This contention is not supported by the evidentiary record. The county’s evidence
describing its standard policy does not indicate that the standard policy is subject to
exceptions that may be made at the discretion of the county engineer. Rather, the county’s
evidence describing its standard policy indicates that the standard policy is not subject to
such exceptions. But even if we were to accept the county’s premise that its standard policy
permits discretionary exceptions, there simply is no evidence that the county engineer
actually exercised discretion when declining the country club’s request after the Olmanson
accident. An affidavit of a country club representative indicates that the county declined
the request solely because “the County had chosen not to place signs or markers at any of
the culverts in the County.” The county has no other evidence on that issue because its
then-county engineer has stated that he has no recollection of those communications
between the county and the country club. In fact, his statement tends to contradict the
county’s contention because he stated, “If a conversation took place . . . , that conversation
would be con sistent with County policy.” Thus, the county is not entitled to vicarious
official immunity based on a discretionary operational decision to not make an e xception
to its standard policy when responding to the country club’s request to mark the culvert.
Second, the county argues in the alternative that, even if its county engineer did not
engage in discretionary operational conduct, he engaged in ministerial conduct for which
he is entitled t o official immunity on the ground that he complied with the county’s
standard policy. In support of its alternative argument, the county cites Anderson, which

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was decided by the supreme cou rt four months after this court’s Olmanson opinion. The
supreme court held in Anderson that a public official may be protected by official immunity
for ministerial conduct “if that ministerial conduct was required by a protocol established
through the exercise of discretionary judgment that would itself be protected by official
immunity,” unless the ministerial duty “was either not performed or was performed
negligently.” Anderson, 678 N.W.2d at 660; see also Meier, 686 N.W.2d at 863-64. The
supreme court reasoned that a contrary rule would unfairly deny immunity to pu blic
employees who follow standard protocols and might discourage public entities from using
professional judgment in establishing standard protocols. See Anderson, 678 N.W.2d at
660. As a consequence, a claim that a public employee should be liable for engaging in
ministerial conduct by following a standard protocol “is in reality a challenge to the
protocol itself,” which raises the question “whether the adoption of the protocol was
discretionary in the sense necessary” for official immunity. Id. at 661.
Applying Anderson to the county’s alternative argument, we note that the evidence
shows that the county engineer followed the county’s standard policy at all relevant times
with respect to the culvert at issue in this appeal. As far as the record revea ls, he did so
simply because the standard policy had been established. Accordingly, the county
engineer’s conduct must be deemed ministerial. See Wiederholt, 581 N.W.2d at 316. As
the supreme court stated in Anderson, a municipal official or employee “does not forfeit
official immunity because his or her conduct was ministerial if that ministerial conduct was
required by a protocol established through the exercise of discretionary judgment that
would itself be protected by official immunity.” 678 N.W.2d at 660. A municipal official

14
or employee is not entitled to official immunity for his or her ministerial conduct only if “a
ministerial duty was either not performed or was performed negligently.” Id. In this case,
there is no such evidence.
According to Anderson, t he Wenkers’ claims are, in reality , a challenge to the
standard policy itself. See id. at 661. “The question then is whether the adoption of the
protocol was discretionary in the sense necessary to give rise to common law official
immunity.” Id. In Anderson, the supreme court took pains to emphasize that the relevant
question was “whether the adoption of the protocol involved operational -level discretion
sufficient for common law official immunity,” which is distinct from the question whether
the protocol was a policy-level decision deserving of statutory discretionary immunity. Id.
at 661 n.10. The supreme court answered that question in Anderson by reasoning that “both
the decision to establish a protocol and the decision regarding the substance of the protocol
. . . involved the exercise of . . . professional judgment .” Id. at 661. “Therefore,
professional judgment was required . . . .” Id. In essence, the operational -level decision,
which otherwise might appear to be a ministerial action in light of an established protocol,
is deemed to be discretionary in nature because of the discretionary nature of the
formulation of the protocol. See id. at 661. The supreme court concluded that the employee
was entitled to official immunity. Id. at 663. Similarly, this court in Meier applied
Anderson toward the same end by reasoning that “the discretionary nature of adopting or
creating” certain policies “is more than sufficient to satisfy the application of official
immunity.” 686 N.W.2d at 865.

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To reiterate, “[t]he question . . . is whether the adoption of the [county’s standard
policy] was discretionary in the sense necessary to give rise to common law official
immunity.” Anderson, 678 N.W.2d at 661. To answer that question , we are naturally
inclined to refer to our Olmanson opinion, in which we rejected the county’s argument that
it was entitled to vicarious official immunity. See Olmanson, 673 N.W.2d at 516-17. But
our Olmanson opinion was issued before the supreme court’s opinion in Anderson. The
county suggests that this court would have decided Olmanson differently if we had had the
benefit of Anderson, which, the county asserts, “clarified the nature of official immunity
when acting in compliance with a governmental policy.” The point is well taken. In fact,
in Meier, this court recognized that Anderson made a significant cha nge in the caselaw.
We stated that “the supreme court expanded the application of official immunity to include
ministerial duties, unless an employee fails to perform, or negligently performs, such a
duty.” 686 N.W.2d at 864. We also stated that “ Anderson shifts the focus to the policy
itself, not its application.” Id.
In both Anderson and Meier, the discretionary adoption of a policy clothed a
ministerial action made in conformance with the policy with the discretion necessary for
the protection of the official-immunity doctrine. See Anderson, 678 N.W.2d at 660; Meier,
686 N.W.2d at 864. That reasoning is inconsistent with our reasoning in Olmanson, in
which we stated that “the creation of a policy is a planning -level decision and not
operational conduct protected by official immunity.” Olmanson, 673 N.W.2d at 516 -17.
In effect, that part of our Olmanson opinion was overruled by Anderson. Consistent with
Anderson and Meier, the county’s adoption of its standard policy of not marking culverts

16
is sufficiently discretionary to protect the otherwise ministerial action of implementing the
standard policy without exception, including the decision to not install a marker at the
culvert when the country club requested it. See Anderson, 678 N.W.2d at 660; Meier, 686
N.W.2d at 864. Accordingly, the county engineer’s ministerial conduct is entitled to
official immunity.
The question remains whether the county is entitled to vicarious official immunity.
See Anderson, 678 N.W.2d at 663 -65. In Anderson, the supreme court decided that the
school district was entitled to vicarious official immunity because it had proactively taken
steps to adopt a protocol “based on the collective knowledge and experience of the staff.”
Id. at 664. Similarly, the county engaged in a discretionary process of establishing and
maintaining a standard policy of not marking culverts in its rights -of-way based on
identified factors. Even if the forma tion of that standard policy did not involve the
“balancing [of] social, political, or economic considerations ,” Olmanson, 673 N.W. 2d at
516, it is sufficiently discretionary to warrant the application of vicarious official
immunity, see Anderson, 678 N.W.2d at 660.
Thus, the county is entitled to vicarious official immunity.
III. Statutory Highway Right-of-Way Immunity
The county argues that the district court erred by denying its motion for summary
judgment with respect to its defense of statutory highway right-of-way immunity.
One of the statutory exceptions to municipal liability is highway right -of-way
immunity, which provides as follows:

17
Any claim for a loss involving or arising out of the use
or operation of a recreational motor vehicle, as def ined in
section 84.90, subdivision 1, within the right-of-way of a road
or highway as defined in section 160.02, subdivision 26, except
that the municipality is liable for conduct that would entitle a
trespasser to damages against a private person.

Minn. Stat. § 466.03, subd. 22. The term “recreational motor vehicle” is defined in section
84.90, subdivision 1, to expressly include snowmobiles. Mi nn. Stat. § 84.90, subd. 1
(2018).
In this case, the parties dispute the applicability of the last clause of the statute,
which refers to conduct that would allow a trespasser to recover damages . The liability-
to-trespassers standard is incorporated into othe r statutory immunities , including the
statutory immunity for the construction, operation, and maintenance of municipal parks
and recreational areas. See Minn. Stat. § 466.03, subd. 6e (2018). In applying the liability-
to-trespassers exception in subdivision 6e, the supreme court has adopted section 335 of
the Restatement (Second) of Torts. See Steinke, 525 N.W.2d at 176; Johnson v. Washington
County, 518 N.W.2d 594, 599 (Minn. 1994). Section 335 provides:
A possessor of land who knows, or from facts within his
knowledge should know, that trespassers constantly intrude
upon a limited area of the land, is subject to liability for bodily
harm caused to them by an artificial condition on the land, if

(a) the condition

(i) is one which the possessor has created or
maintains and

(ii) is, to his knowledge, likely to cause death
or serious bodily harm to such trespassers and

18
(iii) is of such a nature that he has reason to
believe that such trespassers will not discover it, and

(b) the possessor has failed to exercise reasonable
care to warn such trespassers of the c ondition and the risk
involved.

Steinke, 525 N.W.2d at 176-77 (quoting Restatement (Second) of Torts § 335 (1965)).
The district court rejected the county’s argument for statutory highway right-of-way
immunity on the ground that there were genuine issues of material fact with respect to “the
County’s knowledge of the frequency of snowmobile traffic” and “the County’s knowledge
with regard to the inherent dangers concerning this particular culvert. ” On appeal, the
county cha llenges the district court ’s analysis of th ose two issues , and the county also
renews its argument that the culvert was obvious and visible.
We begin with the county’s argument that it had no knowledge that trespassers
constantly intruded on its highway right -of-way. The county contends that there is no
evidence in the summary-judgment record that the county knew of constant intrusions by
snowmobiles in the location of the culvert or knew of facts that should have caused the
county to know of con stant intrusions . In response, the Wenkers contend that “[f]acts
within the County’s knowledge establish, at minimum, constructive knowledge of constant
intrusion by snowmobilers. ” We note that constructive knowledge is not the applicable
standard. The term “constructive knowledge” generally means the “[k]nowledge that one
using reasonable care or diligence should have, and therefore that is attributed by law. ”
Black’s Law Dictionary 1004 (10th ed. 2014 ). To apply the constructive-knowledge
standard would impose on the county a duty to inquire into whether snowmobilers were

19
constantly in truding on its highway right -of-way near the culvert and to impute to the
county knowledge of any such constant intrusions, even if the county was not actually
aware of constant intrusions and not actually aware of facts from which constant intrusions
may be inferred. Such a duty is inconsistent with the statute and the caselaw interpreting
the statute. Section 335 of the Restatement does not impose a duty to inquire but, rather,
is concerned only with actual knowledge . The relevant inquiry is whether a possessor of
land “‘knows, or from facts within [its] knowledge should know, that trespassers constantly
intrude upon a limited area of the land .’” Steinke, 525 N.W.2d at 176 -77 (quoting
Restatement (Second) of Torts § 335 (1965)). The two standards are different. See Ariola
v. City of Stillwater , 889 N.W.2d 340, 355 -56 (Minn. App. 2017) , review denied (Minn.
Apr. 18, 2017).
The Wenkers contend that, in several ways, the record contains evidence sufficient
to create a genuine issue of mat erial fact on this issue. Their primary contention is that
personnel associated with the country club were aware of constant intrusions by
snowmobilers and that, “if Shoreland was well aware, the county had every reason to be
well aware too. ” This contention stretches the evidence too far. Regardless what
knowledge Shoreland had concerning constant intrusions by snowmobilers on the county’s
highway right -of-way at the culvert tunnel, there is no basis for imputing Shoreland ’s
knowledge to the county without evidence that Shoreland actually informed the county of
constant intrusions or facts from which constant intrusions should have been inferred. As
the county argues, there is no evidence that Shoreland personnel did so. During
depositions, the Wenkers’ counsel asked one Shoreland employee, the head

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superintendent, whether he had informed the county of constant snowmobile intrusions,
and he answered in the negative. To be sure, the county was aware of one intrusion, which
led to the Olmanson lawsuit. But one intrusion in a 16-year period is an insufficient basis
from which to prove constant intrusions. The Wenkers simply do not have any evidence
that the country club informed the county of constant intrusions by snowmobilers or
informed the county of facts from which such constant intrusions should have been
inferred.
The Wenkers also contend that the county had the requisite knowledge on t he
ground that the ditches alongside County Road 21 are “open to view from the roadway ”
such that “any County officer or employee travelling, snowplowing, or otherwise
maintaining the road” would know of constant intrusions by snowmobilers. The mere fact
that it is possible for county personnel to observe the ditches along County Road 21 does
not mean that they actually did so. The Wenkers’ contention would require a factfinder to
speculate as to whether county personnel driving on County Road 21 actually looked at the
ditches and to further speculate about what such persons might have observed.
The Wenkers contend further that the county is aware that snowmobilers in general
often travel on ditches alongside county roads. But the Wenkers must prove that the county
knew or should have known that “‘trespassers constantly intrude upon a limited area of the
land,’” which means the particular place at which Wenker was injured, not any and all
highway rights -of-way throughout the county. See S teinke, 525 N.W.2d at 176 -77
(emphasis added) (quoting Restatement (Second) of Torts § 335 (1965)). The Wenkers
cannot satisfy their burden with evidence that is only generally concerned with

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snowmobiling along county roads throughout the county . If that were so, counties rarely
would receive the benefits of the statutory highway right-of-way immunity.
Thus, the Wenkers do not have evidence sufficient to create a genuine issue of
material fact as to whether the county “kn[ew], or from facts within [its] knowledge should
[have] know[n], that trespassers constantly intrude[d] upon a limited area of the land,” i.e.,
that snowmobilers constantly used the ditch alongside County Road 21 in the location of
the country club ’s culvert tunnel. See Johnson, 518 N.W.2d at 599 (quot ation omitted).
That is a sufficient basis for the conclusion that the county is entitled to statutory highway
right-of-way immunity. Accordingly , we need not consider the county ’s arguments that
the culvert was not inherently dangerous or that the culvert was obvious and visible.
In sum, the district court did not err by denying the county ’s summary-judgment
motion with respect to its assertion of statutory discretionary immunity . But the district
court erred by denying the county’s summary-judgment motion with respect to its assertion
of common-law official immunity and statutory highway right-of-way immunity.
Reversed.