Jerald Boitnott, Appellant,

This opinion is nonprecedential except as provided by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
A22-0722

Jerald Boitnott,
Appellant,

vs.

State of Minnesota, by and through its Department of Transportation,
Respondent.

Filed December 27, 2022
Affirmed
Reilly, Judge

Fillmore County District Court
File No. 23-CV-20-349

Aaron R. Thom, Samantha J. Ellingson, Thom Ellingson, PLLP, Minneapolis, Minnesota;
and

Patrick W. Michenfelder, Throndset Michenfelder, LLC, St. Michael, Minnesota (for
appellant)

Keith Ellison, Attorney General, Michael Goodwin, Benjamin Harringa, Assistant
Attorneys General, St. Paul, Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Bratvold, Judge; and
Halbrooks, Judge .
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
REILLY, Judge
In this appeal from the summary-judgment dismissal of his claim alleging that
respondent failed to properly place warning signs on a state road, appellant argues that the
district court erred by determining that: (1) respondent is entitled to statutory discretionary
immunity as a matter of law , and (2) the evidence is insufficient to show a genuine fact
issue on appellant’s claim that the absence of warning signs was the proximate cause of his
accident. We conclude that the district court did not err in granting summary judgment
because of statutory discretionary immunity. Thus, we affirm.
FACTS
On a sunny day in July 2017, appellant J erald Boitnott was traveling on his
motorcycle eastbound on Highway 30 in southeastern Minnesota with a group of other
motorcyclists. Highway 30 is a two-lane asphalt road maintained by respondent Minnesota
Department of Transportation (MnDOT). Boitnott was traveling side-by-side with another
motorcyclist in the single eastbound lane. The group of motorcyclists had been traveling
on Highway 30 for about 30 to 40 miles. Around mile marker 248.600 the road curved and
Boitnott noticed that the motorcyclist riding pa rallel to him was moving toward him, so he
moved closer to the road’s shoulder. The shoulder dropped from the road and Boitnott
drove into the ditch, fell off his motorcycle, and sustained serious injuries. Boitnott sued
3
MnDOT alleging that it failed to warn roadway users of the unprotected shoulder drop-off1
which constituted a dangerous condition.
Because MnDOT is an agency of the State of Minnesota, it is responsible for
maintaining Minnesota’s state highways, including Highway 30. Highway 30 falls within
MnDOT’s District 6.2 Within District 6 alone, there are around 1,421 centerline3 miles of
road. MnDOT traffic engineers are tasked with reviewing and interpreting the Manual of
Uniform Traffic Control Devices (the manual) to det ermine whether warning signs should
be added to roadways to “alert road users to conditions that might call for a reduction of
speed or an action in the interest of safety.” According to the manual, the use of warning
signs “shall be based on an engineeri ng study or on engineering judgment.” The manual
also recommends that warning signs be used minimally to increase the effectiveness of the
ones placed.
There are many types of MnDOT roadway warning signs, including one to warn
motorists of an unprotected shoulder drop-off exceeding more than 3 inches in depth “for
a significant continuous length along the roadway, based on engineering judgment” as
depicted below.

1 An unprotected shoulder drop- off refers to a sudden drop in elevation between the travel
lane and the adjacent shoulder.
2 MnDOT is divided into eight regional districts. Districts 1 through 7 make up the greater
Minnesota districts, and the final district covers the Minneapolis and St. Paul metropolitan
area.
3 A “centerline” mile is one mile of a single roadway, no matter how many lanes.
4

Just before the curve in the road on Highway 30 where Boitnott crashed is a MnDOT
“Winding Road” warning sign with a speed limit listed at 30 miles per hour as depicted in
the following photograph.

Boitnott had not traveled on that area of Highway 30 before his crash. In a deposition,
Boitnott testified that he had ridden side -by-side with other motorcyclists “[m]any times”
and admitted that riding parallel with another motorcyclist on a highway like Highway 30
was less safe. He testified that there have been “several times” while riding paral lel to
another motorcyclist that he has moved off the road and onto the shoulder but that he has

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always been able to use the shoulder to get back onto the road. He testified that if there
had been a warning sign conveying there was no shoulder or a low shoulder before the
curve, he would have chosen not to ride parallel to the other motorcyclist when traveling
around the curve.
A traffic engineer for MnDOT submitted an affidavit stating that the MnDOT sign
office “can only respond to and evaluate sign requests that it is made aware of.” The traffic
engineer stated that “[t]he District 6 sign office was never made aware prior to the service
of this lawsuit that someone believed the shoulder drop off at the site of the crash” exceeded
3 inches for a signific ant length of the roadway. He also stated that if the sign office had
been notified of this belief, “the sign office would have had to weigh safety and financial
concerns to determine whether to post a sign at the crash site.” Additionally, the
maintenance superintendent for District 6 submitted an affidavit stating that motorists or
law enforcement officers may report concerns with roadways, and that once a report is
received, MnDOT responds and evaluates whether maintenance is needed. The
maintenance superintendent stated that he was unaware of any information reflecting that
anyone informed MnDOT maintenance that they believed the shoulder in the area was
dangerous.
MnDOT submitted a motion for summary judgment in response to Boitnott’s claim
of negligence, arguing that statutory discretionary immunity applied and that MnDOT did
not cause Boitnott’s injuries. Boitnott opposed the motion, arguing that statutory
discretionary immunity does not apply because MnDOT failed to follow its own policies
requiring it to place signage warning motorists of dangerous conditions. He also contended
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that MnDOT created the dangerous condition by narrowing the shoulder of the road with
an abrupt drop- off at the edge of an off -camber4 turn. Following a motion hearing, the
district court granted MnDOT’s motion for summary judgment in full. In doing so, the
district court adopted MnDOT’s entire proposed order. This appeal follows.
DECISION
Boitnott challenges the district court’s grant of s ummary judgment for MnDOT
based on statutory discretionary immunity. On appeal from summary judgment, we review
whether there are any genuine issues of material fact and whether the district court erred in
its application of the law. Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn.
2019). In doing so we view “the evidence in the light most favorable to the nonmoving
party and resolve all doubts and factual inferences against the moving part[y].” Id.
(quotation omitted). Whether certain gove rnmental action is protected by statutory
discretionary immunity is a legal question that we review de novo. Minder v. Anoka
County, 677 N.W.2d 479, 483 (Minn. App. 2004).
Under the State Tort Claims Act, the state is subject to liability for torts “caused by
an act or omission of an employee of the state while acting within the scope of office or
employment.” Minn. Stat. § 3.736, subd. 1 (2020). However, statutory discretionary
immunity is an exception to this general rule. Minder, 677 N.W .2d at 483-84.
5 Under this

4 An off-camber turn is a turn in which the road slopes toward the outside of the turn.
5 Statutory discretionary imm unity provisions applicable to the state and municipalities
have been treated as coextensive such that caselaw addressed to one can be relied on in
interpreting and applying the other. Schroeder v. St. Louis County, 708 N.W.2d 497, 511
n.3 (Minn. 2006).
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exception, the state is immune from tort liability “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) (2020). When defining “discre tionary duty” we must distinguish planning
decisions from operational decisions. Minder, 677 N.W.2d at 484. Planning decisions are
protected as discretionary actions, while decisions relating to day -to-day operations are not
protected. Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994). Thus, we must
first identify what governmental conduct is being challenged. And when a defendant
asserts statutory discretionary immunity, the plaintiff bears the burden “ to articulate
specifically the claim that must be scrutinized to determine the immunity issue and to make
some showing of fact to suggest the basis for the claim.” Gerber v. Neveaux , 578 N.W.2d
399, 403 (Minn. App. 1998), rev. denied (Minn. July 16, 1998).
Boitnott only challenges MnDOT’s failure to erect a warning sign of a dangerous
condition where he crashed . Boitnott does not challenge MnDOT’s signage policies but
instead argues that MnDOT failed to follow its own signage policies. Boitnott contends
that MnDOT knew or should have known that the narrow shoulder on Highway 30 near
mile marker 2 48.600 suddenly dropped from the road and MnDOT failed to p lace
appropriate signage to protect against the dangerous condition. Erecting road signs to warn
of hazards “is not inherently either discretionary or operational; classification depends on
the factors considered in making the decision.” Minder, 677 N.W.2d at 485 (quotation
omitted). But for statutory discretionary immunity to apply and protect a decision to
place—or not place —a warning sign, an actual decision by the governmental entity must
8
have been made. Id. at 486. Thus, the governmental entity must have created or had actual
notice of the dangerous condition.
In this case, MnDOT asserts it was unaware of a dangerous condition in the roadway
on Highway 30 and therefore could not make a policy decision about whether to place a
warning sign at that location . Both MnDOT’s traffic engineer and maintenance
superintendent for District 6 explained in separate affidavits that MnDOT’s sign policy is
to respond to maintenance and signage issues as MnDOT learns about them because
MnDOT does not have the resources to continuously evaluate the conditions of all the
roadways. They also explained that, when the sign office receives a sign request or concern
about a dangerous condition, the office then weighs safety and financial concerns to
determine whether to erect a sign at that location. They stated that before this litigation,
the sign office was n ever made aware that someone believed the shoulder drop -off where
Boitnott crashed was dangerous. Thus, MnDOT could not make a policy decision about
whether to place a shoulder drop- off warning sign.
In support of his contention tha t MnDOT knew of the dangerous condition that led
to his crash, Boitnott submitted an affidavit from a landowner near the crash site . The
landowner stated that he lived on the property for 54 years and was aware of six accidents
in that time in which a vehicle left the roadway and the state highway patrol or other
members of law enforcement responded. Boitnott also submitted an expert report from a
civil engineer who stated that portions of Highway 30, including the accident site, had a
shoulder drop- off of more than three inches that “developed over a period of time .” The
expert report opined that MnDOT had a duty to inspect roadways for hazardous conditions
9
and to use warning signs to call attention to potential hazards that may not be readily
apparent. The expert concluded that MnDOT knew or should have known about the drop-
off and had a duty to place signage. Finally, Boitnott submitted an email sent from a
MnDOT employee to two other MnDOT employees stating that there are considerable
stretches of steep slopes over a 21 -mile section of Highway 30. The email stated that
“[t]hough there [are] no traffic/accident issues . . . there are severe potential run -off road
risks.” The email stated that guardrail installation for that section of H ighway 30 should
be reviewed.
Boitnott’s argument that MnDOT knew about the dangerous condition is not
persuasive. Boitnott does not provide any evidence that MnDOT had actual knowledge of
the drop-off from the road to the shoulder. See Minder, 677 N.W.2d at 486 (concluding
that one work order to fill a pothole was a bare assertion and insufficient to prove that the
county knew about this pothole). Here, t he affidavit from th e neighbor does not provide
evidence that MnDOT was aware there had been six crashes over the 54 years that the
landowner lived on the property. While the neighbor stated that law enforcement
responded to the crash, there is no evidence that law enforceme nt reported any concerns
about the conditions of the road to MnDOT. And the expert report stated that the road
conditions leading to a drop- off could have occurred naturally from the displacement or
settling of the aggregate material. The expert report states that MnDOT’s policy is to place
a shoulder drop- off sign near where a road’s shoulder drops more than three inches for a
substantial and continuous length “based on engineering judgment.” But the expert report
notes that “[t]here is no evidence that MnDOT performed an engineering study or used
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engineering judgment to determine that this sign should not be placed as indicated by the
MnDOT [manual].” Finally, the email relied on by Boitnott shows that MnDOT was
preparing to evaluate the use of guardrails on Highway 30. But the email does not show
that MnDOT was aware of any accidents in the unspecified 21-mile section of Highway
30.
Even considering the facts in a light most favorable to Boitnott, we conclude that
Boitnott failed to present evidence sufficient to establish that MnDOT had actual
knowledge of the road’s drop-off from the shoulder at the location of the crash. And absent
actual knowledge, Boitnott can only challenge MnDOT’s maintenance and inspection
policies, which statutory discretionary immunity protects . Because we conclude that
MnDOT is entitled to statutory discretionary immunity, we need not reach Boitnott’s
secondary issue of proximate causation in his negligence claim.
Finally, Boitnott argues that by accepting MnDOT’s proposed order in its entirety,
the district court failed to regard the evidence in the light most favorable to him. Appellate
courts have cautioned against district courts ’ wholesale adoptio n of proposed findings of
fact and conclusions of law “because it does not allow the parties or a reviewing court to
determine the extent to which the court’s decision was independently made.” Lundell v.
Coop. Power Ass’n, 707 N.W.2d 376, 380 n.1 (Minn. 2006); see also Sigurdson v. Isanti
Cnty., 408 N.W.2d 654, 657 (Minn. App. 1987), rev. denied (Minn. Aug. 19, 1987). But
no findings of fact are required on summary judgment. See Minn. R. Civ. P. 52.01. And
the concerns of Lundell are not implicated here, where this court reviews de novo whether
summary judgment was appropriately granted. After a thorough and careful review of the
11
record, we conclude that the district court did not err in finding that MnDOT is entitled to
statutory discretionary immunity. Thus, the district court properly granted summary
judgment for MnDOT.
Affirmed.