Zane Vanschaick, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0705

Zane Vanschaick,
Respondent,

vs.

Jacob Letourneau, et al.,
Appellants.

Filed February 8, 2021
Reversed and remanded
Bjorkman, Judge

Wabasha County District Court
File No. 79-CV-19-599

Jeremy L. Lampman, Patterson Dahlberg, Rochester, Minnesota (for respondent)

Keith Ellison, Attorney General, Leah M. Tabbert, Assistant Attorney General, St. Paul,
Minnesota (for appellants)

Considered and decided by Bjorkman, Presiding Judge; Johnson, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellants, a state trooper and the Minnesota State Patrol, challenge the denial of
summary judgment, arguing that they are entitled to official immunity and vicarious
official immunity in this personal -injury action arising out of a motor -vehicle accident.

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Because the trooper’s conduct involved the performance of discretionary duties and was
not malicious, we reverse and remand for entry of judgment in favor of appellants.
FACTS
The morning of August 8, 2016, Trooper Jacob Letourneau was on patrol on
Highway 247. At approximately 7:20 a.m., he observed a vehicle driving toward him that
appeared to be speeding. His squad car’s radar confirmed the vehicle was traveling at 84
miles per hour in the 55 -mile-per-hour zone. Concerned that the vehicle presented a
“significant hazard to others,” he decided to turn around and initiate a traffic stop. And he
reasoned he would have to do so quickly or else “travel at close to 100 mph for a significant
distance to catch up with the speeding driver.”
Trooper Letourneau saw a driveway to his right and decided to pull into the mouth
of it to perform a U -turn. He braked to s low down, pulled into the driveway, and turned
on his emergency lights. Trooper Letourneau glanced in his side -view mirror and saw a
vehicle approaching from behind. He perceived that the vehicle was slowing down and
believed the driver, respondent Zane Vanschaick, was ceding the right of way, so he pulled
out from the driveway to complete the U-turn. Vanschaick was unable to stop and crashed
into the side of the squad car.
Vanschaick sued Trooper Letourneau and the state patrol , alleging the trooper was
negligent in attempting the U-turn in front of him. Trooper Letourneau and the state patrol
moved for summary judgment on the grounds of official immunity and vicarious official
immunity. The district court denied the motion , reasoning that the undisput ed facts
demonstrate that Trooper Letourneau was subject to a state patrol policy requiring him to

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comply with traffic laws, the policy created a ministerial duty, and he violated that duty by
violating two traffic statutes—Minn. Stat. § 169.19, subd. 2 (2018), governing U-turns, and
Minn. Stat. § 169.13, subd. 2 (2018), prohibiting careless driving. Trooper Letourneau and
the state patrol appeal.
DECISION
An order denying summary judgment generally is not appealable, but an exception
to this rule permits review when the denial is based on rejection of a n immunity defense.
Hoff v. Surman, 883 N.W.2d 631, 633 (Minn. App. 2016). Our role is to determine whether
any genuine issues of material fact exist and “whether the district court erred in applyi ng
the law.” Mumm v. Mornson, 708 N.W.2d 475, 481 (Minn. 2006). We view the evidence
in the light most favorable to the nonmoving party. Id. “The application of immunity is a
legal question that we review de novo. ” Briggs v. Rasicot, 867 N.W.2d 217, 2 20 (Minn.
App. 2015), review denied (Minn. Sept. 15, 2015).
I. Trooper Letourneau is entitled to official immunity.
Common-law official immunity precludes a suit for damages against a public
official arising from duties that require the exercise of discretion, unless the official acted
maliciously. Id. That protection “enables public employees to perform their duties
effectively, without fear of personal l iability that might inhibit the exercise of their
independent judgment.” Mumm, 708 N.W.2d at 490. The party asserting immunity bears
the burden of proof. Shariss v. City of Bloomington , 852 N.W.2d 278, 281 (Minn. App.
2014). In determining whether official immunity applies, we consider: “(1) the conduct at
issue; (2) whether the conduct is discretionary or ministerial and, if ministerial, whether

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any ministerial duties were violated; and (3) if discretionary, whether the conduct was
willful or malicious. ” Vasallo ex rel. Brown v. Majeski , 842 N.W.2d 456, 462 (Minn.
2014). We address each factor in turn.
A. The Conduct at Issue
Our first task is to “identify the precise governmental conduct at issue.” Raymond
ex rel. Kelley v. Pine Cty. Sheriff’ s Office , 915 N.W.2d 518, 525 (Minn. App. 2018)
(quotation omitted), review denied (Minn. July 17, 2018) . Precisi on is essential because
“the doctrine of official immunity is a complex and difficult area of law that must be
applied to ever-changing fact patterns and governmental policies.” Mumm, 708 N.W.2d at
492. Even if an official’s decision to undertake a task is discretionary, ministerial duties
may govern how the official completes the task. Thompson v. City of Minneapolis , 707
N.W.2d 669, 674 (Minn. 2006). The nature of a plaintiff’s claim informs our assessment
of what specific conduct is at issue. Raymond, 915 N.W.2d at 525.
Vanschaick’s complaint and his argument opposing the application of immunity
demonstrate that the conduct at issue is not Trooper Letourneau’s decision to stop a
speeding vehicle b ut his actions in doing so —attempting a sudden U-turn in front of
Vanschaick’s vehicle in order to stop the speeding driver.
B. Discretionary or Ministerial
When determining whether the conduct at issue involves discretionary or ministerial
duties, we look to “the nature of the act.” Shariss, 852 N.W.2d at 281 (quotation omitted).
A discretionary act is one that “requires” the exercise of judgment. Briggs, 867 N.W.2d at
221 (quotation omitted). It “involves individual professional judgment that necessarily

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reflects the professional goal and factors of a situation.” Vasallo, 842 N.W.2d at 462
(quotation omitted). By contrast, a ministerial duty is “ absolute, certain, and imperative,
and involve[s] merely execution of a specific duty arising from fixed and designated facts.”
Briggs, 867 N.W.2d at 221 (quotation omitted). It is “simple and definite, leaving nothing
to the discretion of the official.” Id. (quotation omitted).
The work of a law-enforcement officer requires considerable discretion. Elwood v.
Rice County, 423 N.W.2d 671, 678 (Minn. 1988). This is particularly true in “emergency
conditions,” where “little time for reflection” and “incomplete and confusing information”
require “ the exercise of significant, independent judg ment and discretion.” Pletan v.
Gaines, 494 N.W.2d 38, 41 (Minn. 1992) . And it is the reason official immunity “ is
regularly applied to the judgment required of police officers in discharging their duties. ”
Gleason v. Metro. Council Transit Operations , 582 N.W.2d 216, 220 ( Minn. 1998). But
our supreme court has expressly declined to hold that all police conduct, or even all police
conduct in emergency situations , is discretionary. Mumm, 708 N.W.2d at 492.
“[G]overnmental entities have the authority to eliminate by policy the discretion of their
employees in emergency situations.” Vasallo, 842 N.W.2d at 462-63. A policy or statute
that “sets a sufficiently narrow standard of conduct” that a law -enforcement officer is
“bound to follow,” creates a ministerial duty. Id. at 463.
This c ase involves both a policy and statutes. State patrol policy provides that
troopers “shall obey all traffic laws and shall not assume any special privileges, except
while responding to an emergency call or involved in a pursuit situation.” Similarly, Minn.
Stat. § 169.03, subd. 5 (2018), states: “No driver of any authorized emergency vehicle shall

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assume any special privilege under [traffic laws] except when such vehicle is operated in
response to any emergency call or in the immediate pursuit of an actual or suspected
violator of the law .” Both plainly establish a standard of conduct applicable to Trooper
Letourneau—he must comply with traffic statutes.
Trooper Letourneau and the state patrol argue that (1) this standard of conduct did
not apply at the time of the accident because the trooper was pursuing a speeding motorist,
and (2) even if he was not exempt from this standard, the relevant traffic statutes are not
sufficiently narrow to create ministerial dut ies. Because their sec ond argument is
dispositive, we begin our analysis there.
Assuming, without deciding, that Trooper Letourneau was required to comply with
traffic laws, we consider the specific statutes at issue. We first note that s ome traffic
statutes impose a specific obligation—stop at a red light, Minn. Stat. § 169.06,
subd. 5(a)(3)(i) ( 2018); do not exceed the speed limit , Minn. Stat. § 169.14, subd. 2(a)
(2018); drive in the indicated direction on a one-way street, Minn. Stat. § 169.18, subd. 6(a)
(2018). Other tr affic statutes are less definite, including the two Vanschaick contends
Trooper Letourneau violated. The first traffic statute provides that a driver must not “turn
the vehicle to proceed in the opposite direction unless the movement can be made safely
and without interfering with other traffic. ” Minn. Stat. § 169.19, su bd. 2. The second
traffic statute prohibits driving “carelessly or heedlessly in disregard of the rights of others,
or in a manner that endangers or is likely to endanger any property or any person.” Minn.
Stat. § 169.13, subd. 2.

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Compliance with such less-definite statutes requires a driver to exercise judgment,
as the supreme court recognized in Vasallo. There, the court considered the duties of an
officer responding to an emergency cal l to “slow down as necessary for safety” when
approaching a red or stop signal, then to “proceed cautiously.” 842 N.W.2d at 463 (quoting
Minn. Stat. § 169.03, subd. 2 (2012)) . It explained that the first duty “ is conditioned on
the driver’s . . . determination of the level of speed appropriate for safety under the
circumstances,” which “is a textbook example of the exercise of discretion.” Id. And the
duty to “proceed cautiously” calls for the exercise of “due care,” which “ also calls for the
exercise of independent judgment .” Id. The supreme court contrasted these duties with
the statutory requirement that emergency vehicles activate their sirens and light, which “is
absolute, certain, and imperative, and therefore ministerial.” Id.; see also Briggs , 867
N.W.2d at 221 (holding that city ordinance requiring persons to lock unattended running
vehicles imposed a ministerial duty).
The traffic statutes at issue here are nearly identical in imposing the discretionary
duties of safety and due care at issue in Vasallo.1 Accordingly, the district court erred by
concluding that Trooper Letourneau’s conduct violated ministerial duties.

1 Vanschaick also points to Trooper Letourneau’s duty under state patrol policy to
“demonstrate exemplary driving behavior ,” to drive “with due regard for the safety of
persons using the highways,” and similar driving duties. Because all involve discretionary
considerations of safety or care, none imposes a ministerial duty. Similarly, Vanschaick
emphasizes that the state patrol reprimanded Trooper Letourneau for careless driving. But
the reprimand indicates, at most, that he violated a discretionary duty to drive safely and
with due care—conduct for which he is entitled to official immunity unless he acted with
malice.

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Vanschaick argues that even if the traffic statutes Trooper Letourneau allegedly
violated do not create ministerial duties, his conduct did not involve a significant enough
exercise of discretion to warrant application of official immunity . He points to our
statement in Shariss that official immunity protects “the exercise of significant,
independent judgment and discretion.” 85 2 N.W.2d at 282 (quoting Pletan, 494 N.W.2d
at 41)). We are not persuaded. Shariss involved a snowplow driver who, while waiting in
line to perform his plowing duties, backed up his snowplow to let a school bus pass, striking
another vehicle. Id. at 280. In concluding that the driver’s simple act of backing up his
snowplow was ministerial, we e mphasized that the driver “was not actively engaged in
snow-removal operations” that implicate the exercise of discretion. Id. at 283. Shariss did
not create a threshold degree of discretion required for official immunity to apply, nor have
we discovered any case that does. To the contrary, official immunity “can apply to any act
that involves an exercise of independent judgment.” Vasallo, 842 N.W.2d at 462 (emphasis
added).
As noted above, discretion is central to the work of law enforcement. Elwood, 423
N.W.2d at 678. An officer assessing how best to stop a driver suspected of violating the
law must consider myriad factors “with little time for reflection and often on the basis of
incomplete and confusing information.” Pletan, 494 N.W.2d at 41. As the supreme court
observed, “[i] t is difficult to think of a situation where the exercise of significant,
independent judgment and discretion would be more required.” Id.
The undisputed evidence indicates that Trooper Letourneau exercised such
judgment and discretion at the time of the accident. He observed a speeding driver whom

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he believed posed a significant public-safety hazard. He determined that the safest way to
stop the driver was to perform a U-turn as quickly as possible. He activated his emergency
lights and scanned his surroundings . And he assessed that he would be able to complete
the maneuver before Vanschaick reached his location . He was wrong. But his complex
decision-making involved not only the exercise of judgment attendant to any driving
conduct, but also the weighing of competing public -safety considerations in an
environment that allowed no more than seconds for reflection. As such, Trooper
Letourneau’s conduct arose from the performance of dis cretionary duties; official
immunity applies unless he acted maliciously.2 See Vasallo, 842 N.W.2d at 465.
C. Malice
Malice is “the intentional doing of a wrongful act without legal justification or
excuse, or, otherwise stated, t he willful violation of a known right.” Rico v. State , 472
N.W.2d 100, 107 (Minn. 1991). It is not enough that an official committed an intentional
act later determined to be wrong. Id. Rather, “[t]he exception to immunity for malicious
acts allows liability only when an official intentionally commits an act that he or she then
has reason to believe is prohibited.” Vasallo, 842 N.W.2d at 465 (quotation omitted).
In light of its decision that Trooper Letourneau was subject to ministerial duties, the
district court did not address the issue of malice. Nonetheless, Trooper Letourneau and the
state patrol urge us to conclude as a matter of law that the trooper’s conduct was not

2 Because we conclude that the relevant traffic statutes create discretionary, not ministerial,
duties, we decline to address Trooper Letourneau’s alternative argument that he was not
required to comply with any traffic laws because he was responding to an emergency call
or pursuing a violator of the law.

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malicious. We generally will not address issues that the district court did not decide , but
we recognize an exception to that rule “ when the issue is plainly decisive of the entire
controversy on its merits, is raised prominently in the briefing, does not prejudice either
party, or involves a question of law not dependent on new or controverted facts.” Miller
v. Soo Line R.R. Co., 925 N.W.2d 642, 653 (Minn. App. 2019) (quotation omitted). Such
is the case here. A decision that the trooper’s conduct was not malicious would be plainly
decisive of this case. The parties thoroughly briefed the issue, both in the district court and
in this appeal. And although the issue whether an official’s conduct was malicious is often
a fact question, Kelly v. City of Minneapolis , 598 N.W.2d 657, 664 n. 5 (Minn. 1999), we
can decide the issue as a matter of law if there is no evidence that would support a finding
of malice, see Vassallo, 842 N.W.2d at 465.
Vanschaick argues that a jury could reasonably find Trooper Letourneau acted with
malice because (1) the trooper was involved in a similar collision in 2014; (2) several
aspects of the trooper’s driving conduct at the time of his collision with Vanschaick
indicate carelessness, such as his failure to signal his U -turn; and (3) the trooper
acknowledged that his driving conduct violated state patrol policy . We disagree. Even
viewing these undisputed facts in the light most favorable to Vanschaick, the nonmoving
party, Mumm, 708 N.W.2d at 481, we are not persuaded that any of them supports a finding
of malice.
First, the prior collision did not put Trooper Letourneau on notice that a U-turn was
prohibited; it reinforced that a U-turn can be dangerous. He was not reprimanded for the
collision or instructed not to make U -turns in the future. To the contrary, he and his

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colleagues undisputedly employ the maneuver regularly, generally without incident.
Second, the fact that Trooper Letourneau may have been negligent in multiple respects—
not only affording himself insufficient time to m ake the U-turn safely but also forgetting
to signal his turn—does not indicate malice. See Vassallo, 842 N.W.2d at 465 (“Malice is
not negligence.”). And t hird, the trooper’s acknowledgment of wrongdoing after the fact
is insufficient as a matter of law to show he knew at the time that his conduct was
prohibited. See Rico, 472 N.W.2d at 107. As such, he is entitled to official immunity for
his discretionary conduct, and the district court erred by denying him summary judgment.
II. The state patrol is entitled to vicarious official immunity.
When a public official is immune from suit, the official’s government employer will
generally “ enjoy vicarious official immunity from a suit arising from the employee’s
conduct.” Raymond, 915 N.W.2d at 527. Not doing so could cause public officials to
second-guess themselves out of concern that their government employer could sustain
liability from their actions, undermining the purpose of official immunity . Schroeder v.
St. Louis County, 708 N.W.2d 497, 508 (Minn. 2006).
The state patrol urges us to hold it vicariously immune from suit for Trooper
Letourneau’s performance of discretionary duties. Vanschaick advances no reason not to
do so, and our review of the record reveals none. Accordingly, we conclude the state patrol
is entitled to vicarious official immunity.
Reversed and remanded.