Cody Lee Elven, 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This opinion is nonprecedential except as provided by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
A20-1292

Cody Lee Elven,
Respondent,

vs.

St. Louis County,
Appellant.

Filed May 3, 2021
Affirmed
Hooten, Judge

St. Louis County District Court
File No. 69DU-CV-20-545

Cody L. Elven, Duluth, Minnesota (pro se respondent)

Mark Rubin, St. Louis County Attorney, Nora C. Sandstad, Assistant County Attorney,
Duluth, Minnesota (for appellant)

Considered and decided by Slieter, Pres iding Judge; Johnson, Judge; and Hooten,
Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this interlocutory appeal from a de nial of a motion for summary judgment,
appellant argues that the district court erred by concluding that it was not entitled to official
immunity or statutory discretionary immunity. We conclude that th e duty of appellant’s
employee was ministerial, and that policy conc erns disfavor granting appellant official

2
immunity in this case. We al so conclude that appellant fa iled to prove its entitlement to
statutory discretionary immunity. We affirm.
FACTS
This cases arises out of a string of br eak-ins at appellant St. Louis County’s
temporary impound lot. In 2016, sheriff’s deputies arrested respondent Cody Elven driving
a Chevrolet Tahoe with drugs in the vehicle. The county impounded the Tahoe at a recently
constructed, temporary impound lot surrounded by a chain-link fence and a locked gate.
Elven was moving to a new home when arrest ed, so he had the entirety of his personal
belongings in the Tahoe.
The lot suffered its first break-in in September 2017, when someone cut a hole in
an unobserved section of fence. Lieutenant Nate Skelton, who managed lot security,
discovered the hole in the fence later that mont h and found that the th ief broke into some
vehicles. He thereafter conducted daily checks of the impound lot, ordered patrols to check
the lot twice per shift, and installed a game camera on the south side of the lot for
monitoring. In October, a thief cut another hole in the same section of fence, shattered the
Tahoe’s window and stole all of Elven’s posse ssions. Lt. Skelton discovered the second
break-in at the end of October and installed a second camera. The lot suffered at least three
more break-ins between November 2017 and April 2018, after whic h officers finally
identified and arrested a thief using the camera images. This person was not the thief who
stole Elven’s property; as of July 2020, the county had not charged anyone for that theft.
The county never informed Elven of the theft. He only learned of it when, in March
2018, his brother went to the lot to get El ven’s possessions, and discovered the shattered

3
window and empty Tahoe. Elven sued the county and won a judgment in the conciliation
court for $15,000. The county removed the ca se to the district court, then moved for
summary judgment. The district court denied the motion. The county appeals that denial.
DECISION
In its motion for summary judgment, the county argued that it was officially immune
and statutorily immune from Elven’s lawsuit. The county argues on appeal that the district
court erred by concluding that the county was not immune. “Denial of a motion for
summary judgment is not ordinarily appealable, [but] an exception to this rule exists when
the denial of summary judgment is based on re jection of a statutory or official immunity
defense.” Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn.
2004). “In an appeal from su mmary judgment, [this court] must determine whether there
are genuine issues of material fact and whether the district court erred in applying the law.”
Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014). “When reviewing
a denial of summary judgment based on a claim of immunity, we assume the facts alleged
by the nonmoving party are true.” Shariss v. City of Bloomington , 852 N.W.2d 278, 281
(Minn. App. 2014). We review de novo whether immunity applies to the government. Id.
The party asserting immunity bears the burden of proving entitlement to that immunity.
Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). The county asserts entitlements to
official immunity and statutory discretionary immunity.

4
I. The district court did not err by concluding that the county was not entitled to
official immunity.
“The doctrine of common law official i mmunity provides that a public official
charged by law with duties which call for the exercise of his judgment or discretion is not
personally liable to an individual for damages unless he is guilty of a willful or malicious
wrong.” Anderson, 678 N.W.2d at 655 (quotation omitted).1
Imposing liability for discretiona ry acts would deter public
officials from exercising their judgment when making the
difficult decisions often necessary to effectuate the public
policies mandated by law. On the other hand, imposing liability
for ministerial acts merely enc ourages public officials to
exercise care while performing duties that require little or no
independent judgment.
Shariss, 852 N.W.2d at 281.
The district court concluded that official immunity did not apply because Elven sued
the county, rather than an employee. But the government employer may enjoy vicarious
immunity even when the pl aintiff sues only the employer, not the employee who caused
the alleged harm. Anderson, 678 N.W.2d at 664. We coul d reverse and remand for the
district court to reanalyze th e issue, but we “may decide an issue not presented to or
considered by the trial court when the issue . . . 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.

1 As seen throughout the re st of this opinion, our casel aw refers to immunity for
discretionary “duties” and “acts.” This inconsistent terminology risks confusing the focus
of our analysis. We focus on the nature of the duty, examining the level of professional
discretion required to execute the duty, not i ndividual actions. An individual action may
require no decision-making to carry out, but be part of a larger discretionary duty, while a
ministerial duty may involve some actions requiring the employee to make a decision.

5
App. 2019). The district court’s premature conclusion means that it did not fully consider
the official immunity issue. But whether on remand or before us, immunity is a question
of law that can be resolved on the uncontrovert ed facts currently in the record. In the
interest of judicial economy, we resolve that issue here.
A. The county is not entitled to vicari ous official immunity because Lt.
Skelton is not immune from suit fo r his actions in securing Elven’s
property after learning of the first break-in.
To determine whether the county is entitled to vicarious official immunity, we must
first determine if the employee who allegedly harmed Elven is entitled to official immunity.
Sletten v. Ramsey Cty. , 675 N.W.2d 291, 300-01 (Minn. 20 04). “[I]f a public official is
not entitled to official immunity, the public official’s employer is not entitled to vicarious
official immunity.” Raymond v. Pine Cty. Sheriff’s Office , 915 N.W.2d 518, 527 (Minn.
App. 2018), review denied (Minn. July 17, 2018). We first identify the specific employee
and conduct at issue. Vassallo, 842 N.W.2d at 462. We next determine whether the
employee acted under a discretionary or ministerial duty. Id. The employee does not enjoy
immunity for acts that were part of a ministerial duty. Id. Finally, if the duty was
discretionary, we determine whether the em ployee acted willfully or maliciously in
executing the duty. Id.
What is the specific conduct that Elven alleges harmed him?
The district court determined that Elven’s claims against the county were based on
“what the [c]ounty did to secure his proper ty once it was known that break-ins were
occurring.” The county agr ees. The employee responsible for responding to the initial

6
break-in in September 2017 was Lt. Skelton. Therefore, we consider Lt. Skelton’s conduct
securing Elven’s property after learning of the first break-in in September.
Was Lt. Skelton acting under a ministerial or discretionary duty?
“The discretionary‐ministerial distinction is a nebulous and difficult one.” Shariss,
852 N.W.2d at 281 (quotation om itted). We “focus [our] inqui ry on the nature of the act
itself and acknowledge that in doing so almost any act involves some measure of freedom
of choice.” Schroeder v. St. Louis County , 708 N.W.2d 497, 507 (Minn. 2006). “Some
degree of judgment or discretion will not necessarily confer discretionary immunity on an
official.” Elwood v. Rice Cty., 423 N.W.2d 671, 677 (Minn. 1988).
“A discretionary duty involves individual professional judgment that necessarily
reflects the professional goal an d factors of a situation.” Vassallo, 842 N.W.2d at 462
(quotation omitted). We typically consider duties discretionary when they involve
“responding to uncertain circumstances that require the weighing of competing values on
the grounds that these circum stances offer little time for reflection and often involve
incomplete and confusing information such th at the situation requires the exercise of
significant, independent judgment and discretion.” Shariss, 852 N.W.2d at 282. Examples
of a discretionary duty include:
 A police officer exercising professional judgment in choosing what speed was
safe to drive through a red light while responding to an emergency situation,
under a statute imposing a duty on the o fficer to “slow down as necessary for
safety.” Vassallo, 842 N.W.2d at 463.

 A bus driver exercising professional judg ment in choosing to keep the bus
moving on a highway while passengers a ttacked each other, under the driver’s
duty to ensure the safety of all passengers. Watson by Hanson v. Metro. Transit
Comm’n, 553 N.W.2d 406, 415 (Minn. 1996).

7

These duties required the employees to use their professional judgment to choose between
a variety of options under uncertain circumst ances and without the benefit of time for
reflection. But even with time for reflection, a duty may still be discretionary. See
Schroeder, 708 N.W.2d at 506 (holding as discretionary the decision of a road-grader
operator to grade against traffic on a highway , under a county’s policy allowing him that
discretion).
By comparison, “a ministerial duty is one th at is absolute, certain, and imperative,
involving merely the execution of a specific duty arising from fixed and designated facts.”
Vassallo, 842 N.W.2d at 462 (citations and quotations omitted). Examples of ministerial
duties include:
 State employees demolishing an abandoned house, when “their job was simple
and definite—to remove a house. While th ey undoubtedly had to make certain
decisions in doing that job, the nature, quality, and complexity of their decision-
making process does not entitle th em to immunity from suit.” Williamson v.
Cain, 245 N.W.2d 242, 244 (Minn. 1976).

 County employees managing the waste at a yard-waste site, when they had a
duty to not exceed the site’s maximum annual waste capacity, regardless of the
decisions involved in managing the waste. Sletten, 675 N.W.2d at 306.

 A bus driver securing a wheelchair-bound passenger on the bus and allowing her
to disembark when she demanded, when the driver had a duty to do both and the
only decisions involved the best way to secure the wheelchair based on
guidelines and diagrams distributed by employer. Gleason v. Metro. Council
Transit Operations, 582 N.W.2d 216, 220-21 (Minn. 1998).

These situations did not involve split-second decision-making or uncertain circumstances
requiring the exercise of professional judgme nt, though the situations all required some
exercise of discretion and judgment.

8
Though it is a close question, we disagr ee with the county’s argument that Lt.
Skelton’s duty was discretionary. While Lt. Skelton certainly had to make judgment calls
about the best ways to secure the lot, his duty was a straight-forward ministerial command
to protect Elven’s property from a known threat of theft. The district court correctly
identified the county’s (and Lt. Skelton’s) duty as statutory. “When property is so seized
[for forfeiture], the appropriate agency shall use reasonable diligence to secure the property
and prevent waste.” Minn. Stat. § 609.531, subd. 5 (2020). The county seized the Tahoe
for forfeiture, so Lt. Skelton had a duty to use reasonable diligence to secure the Tahoe and
its contents, especially once he knew of the first break-in.
The situation did not require split-second decision-making based on incomplete and
confusing information. See Shariss, 852 N.W.2d at 282. Lt. Skelton knew that the thief
walked through the wo ods surrounding the lot to acce ss a section of fence hidden from
plain view, cut a hole in that fence, and then broke into cars to steal valuable property like
that in the Tahoe. He had plenty of time to make his decisions about lot security. With
these facts, Lt. Skelton’s duty was “simple and definite”—to secure property like Elven’s
by preventing or deterring the thief from cutting more holes in the fence, or by removing
Elven’s property to a more secure location. See Williamson, 245 N.W.2d at 244.
This duty did not require a significant exercise of Lt. Skelton’s professional
judgment in pursuit of the goals of his position as a law enforcement officer. Cf. Vassallo,
842 N.W.2d at 463 (holding discretionary a police officer’s duty to drive through red lights
safely when responding to emergency situation); Pletan v. Gaines , 494 N.W.2d 38, 41
(Minn. 1992) (holding discretionary a police officer’s duty to decide when and how to

9
engage in a high-speed car chase). Lt. Skelto n needed to decide only how best to secure
private property in a fenced lot against a thief’s known method of cutting a hole in the
fence and breaking into cars. While he ha d a variety of options (cameras, patrols,
reinforcing the fence, moving the property, etc.), the choice of which options would best
accomplish his duty did not require balanc ing competing profe ssional concerns and
conflicting goals. “[T]he nature, quality, and complexity of [Lt. Skelton’s] decision-
making process does not entitle [him] to immunity.” Williamson 245 N.W.2d at 244.
We hold that Lt. Skelton’s duty was ministerial, so official immunity does not apply
in this case.
B. The county is not entitled to vicarious official immunity even if Lt. Skelton
is immune.

Even if we concluded that the duty was discretionary and Lt. Skelton is entitled to
immunity, we would hold that the county is not entitled to vicarious official immunity. “In
general, when a public official is found to be immune from suit on a particular issue, his
government employer will enjoy vicarious official immunity from a suit arising from the
employee’s conduct.” Schroeder, 708 N.W.2d at 508. “While [we] have generally
extended official immunity vicariously to governmental entities after a government
employee has been allowed offi cial immunity, vicarious imm unity is not an automatic
grant.” Sletten, 675 N.W.2d at 300. “Ultimately, th e extension of vicarious official
immunity is a policy question for the court.” Schroeder, 708 N.W.2d at 508; see also
Sletten, 675 N.W.2d at 304 (“The application of vicarious official immunity . . . is a policy
question based on the facts presented.”).

10
The supreme court has indicated that an employer may be entitled to vicarious
immunity when a lawsuit mi ght cause the employer to fo cus so excessively on the
employees’ conduct that it would be detrim ental to the employees’ job performance by
discouraging them from using their knowledge and experience to independently craft their
conduct in the future. Schroeder, 708 N.W.2d at 508. In Anderson, the court granted
vicarious official immunity to a school distri ct against a lawsuit accusing the district and
teachers of negligent safety procedures fo r students using a powered table saw. 678
N.W.2d at 664-65. A group of wood-shop teachers created the challenged safety
procedures, and the court grante d the school district vicarious immunity because “to rule
otherwise would create a disincentive to use collective wisdom to create such protocols
and policies.” Id; see also Schroeder, 708 N.W.2d at 508 (granting vicarious official
immunity to county b ecause county staff used “collec tive knowledge and experience” to
craft challenged road-grading conduct, and failing to grant vicarious immunity would
disincentivize the county staff from doing so in the future). These cases instruct that when
the employer’s attention would hurt its employees’ performance, vicarious immunity may
be granted.
But a government employer may not be entitled to vicarious immunity when the
government could improve the employees’ performance by focusing on them and imposing
clearer duties and direction. In Sletten, the court refused to extend vicarious official
immunity to a county for its employees’ alleged mismanagement of a yard-waste site. 675
N.W.2d at 306. It reasoned that the lack of immunity “would not deter the county’s
compost workers’ performance by focusing s tifling attention on performance, but would

11
rather encourage these employees to comp ly with governmental permits, operating
requirements, and facility design limitati ons, which were suffi ciently certain and
imperative.” Id. at 306 (quotation and citation omitted). In S.W., the court refused to
extend vicarious official immunity to a school district against a lawsuit alleging that the
district negligently failed to prevent a student from being sexually assaulted. S.W. v. Spring
Lake Park Sch. Dist. No. 16 , 592 N.W.2d 870, 875-77 (Minn. App. 1999), aff’d, 606
N.W.2d 61 (Minn. 2000). The court conclude d that the district employees’ duties to
respond to the assailant’s unpe rmitted presence in the school were discretionary because
they were not guided by any law or school policy. Id. at 875. But it reasoned that the
district was not entitled to immunity because “[t]o hold otherwise would be to reward the
school district for its failure to develop an d implement a basic security policy that would
have applied in these circumstances.” Id. at 877.
The doctrine of vicarious official imm unity risks a perverse incentive for the
government employer to avoid all liability by granting its em ployees wide discretion for
all of their duties regardless of how well they perform, ensuring they get official immunity
that vicariously applies back to the government. These cases demonstrate that we should
refuse to grant immunity when it risks that incentive. If the government could encourage
better employee compliance with their duties or provide clearer direction for its employees,
granting vicarious immunity is inappropriate.
We conclude that granting the county vi carious immunity would create that very
incentive problem. The county offers no arguments about wh y it is entitled to vicarious
official immunity, except to simply claim that it is entitled. The county has the burden to

12
prove its entitlement to vicarious immunity, but it did not produce a ny evidence that it or
the sheriff’s department employees had a po licy regarding the security of impounded
property. The county admits that “there ar e no statutes that govern the decision-making
required to establish and monitor an impound lot.” Without evidence of a policy, we infer
that the county leaves security decisions entirely to the discretion of the individual officers
in charge of impound lot security.
Without drawing comparisons between the harm of sexual assault and the harm of
property theft, we are concerned that similar to the school district in S.W., granting the
county vicarious immunity would reward its “failure to develop and implement a basic
security policy that would have applied in these circumstances.” Id., 592 N.W.2d at 877.
The county does not argue that we if refused to grant it vicarious immunity, it would bring
stifling attention to Lt. Skelton that would be detrimental to his job performance. We see
nothing in the record to suggest that Lt. Sk elton’s job performance would suffer from the
county’s increased attention to impound lot security . In fact, more organized attention
from the county could improve those security procedures by creating an actual policy. We
hold that the county is not entitled to vicarious official immunity.
II. The district court did not err by concluding that the county was not entitled to
statutory discretionary immunity.
In addition to the common-law official immunity, political subdivisions of the state
government, like counties and municipalities, are immune from liability “for any claim
based upon the performance or the failure to ex ercise or perform a discretionary function
or duty, whether or not the di scretion is abused.” Minn. St at. § 466.03, subd. 6 (2020).

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This (along with vicarious official immunity) is an exception to the general rule that every
subdivision is subject to liability for the official acts of its employees. Minn. Stat. § 466.02
(2020); see also Conlin v. City of Saint Paul, 605 N.W.2d 396, 400 (Minn. 2000). As such,
“[t]he discretionary function excep tion is interpreted narrowly.” Conlin, 605 N.W.2d at
400.
Though both official and statutory immunity discuss discretionary duties, they refer
to distinct forms of discretion. “Official immunity protects the kind of discretion which is
exercised on an operational rather than a policymaking level.” Sletten, 675 N.W.2d at 301.
In comparison, “[t]he purpose of statutory immunity is to protect the legislative and
executive branches from judicial second-gue ssing of certain policy-making activities
through the medium of tort actions.” Schroeder, 708 N.W.2d at 503.
Statutory immunity is extended when there has been a
planning-level decision; that is, social, political, or economic
considerations have been evaluated and weighed as part of the
decision-making process. . . . Statutory immunity does not
extend to operational-level de cisions, those involving day-to-
day operations of government, the application of scientific and
technical skills, or the exercise of professional judgment.
Id. at 504. The government must “produce[] evidence that the conduct was of a policy-
making nature.” Id.
As with official immunity, we first iden tify the precise government conduct being
challenged. Id. That conduct is Lt. Skelton’s acts to secure Elven’s property after learning
of the first break-in to the impound lot.
We next determine if the county demonstr ated that Lt. Skelton “engag[ed] in the
balancing of social, economic, or political considerations” to guide his conduct. Id. at 505.

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The court in Schroeder concluded that a county was en titled to statutory discretionary
immunity against a lawsuit targeting its po licy allowing road graders to grade against
traffic. Id. The record included memoranda, letters, and transcripts of meetings of county
staff and road superintendents addressing the practice of grading against traffic, examining
alternatives to that practice, and discussing the economic and social impacts of the options.
Id. The court reasoned that the county proved thr ough this record th at the decision to
permit grading against traffic “was made on a planning level and was of a policy-making
nature,” so the county was entitled to statutory immunity. Id.
In comparison, the court in Conlin denied statutory immunity to a city in a lawsuit
challenging the city’s failure to place warnings around a dangerous road condition created
by city road repair. 605 N.W.2d at 398-99. The city’s only evidence supporting it claimed
immunity were affidavits submitted by the st reet maintenance engi neer consisting of
conclusory affirmations that the engineer considered economic, social, and political
concerns when deciding to not place any barriers or warning signs. Id. at 402-03. The
court considered this ev idence insufficient. Id. It expressed concern that “allowing
minimal averments in an affidavit to be sufficient evidence of a planning decision” risked
bootstrapping professional and scientific decisi ons made at the operational level into the
immunity intended to protect policy decisions, and that doing so conflicted with the narrow
construction and burden of proof required for statutory discretionary immunity. Id. at 403.
We conclude that similar to the city in Conlin, the county here failed to present
sufficient evidence to demonstrate that its actions involved planning-level considerations.
The county argues that “actions to secure the impound lot after the initial break-in – adding

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patrols and a trail camera – required balancing the department’s limited resources, in terms
of both patrol redeployment and consideration of additional budgetary investments, to best
monitor the property.” But the record fails to bear this out. The only evidence regarding
the county’s actions to secure the property after the first break-in are two affidavits
submitted by Supervising Deputy Jon Skelton (distinct from Lt. Nate Skelton) and reports
from Lt. Nate Skelton and another deputy. Supervising Deputy Sk elton’s affidavits
describe the operational considerations for lot security prior to the first break-in, but do not
describe any planning or policy considerations in the county’s response to the first break-
in. The reports from Lt. Skelton and the othe r deputy describe the specific actions they
took in response to the break-ins, but they do not describe any policy-level considerations
that guided their response. These reports a nd affidavits do not even invoke the policy
language used by the insu fficient affidavits in Conlin. We hold that the county failed to
prove its entitlement to statutory discretionary immunity.
Affirmed.