Brian Vitek as Trustee for the next-of-kin of Patric Vitek, deceased, 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This opinion is nonprecedential except as provided by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
A22-1536

Brian Vitek as Trustee for the next-of-kin of Patric Vitek, deceased,
Respondent,

vs.

The City of Eagan,
Co-Appellant,

Dakota County,
Appellant,

and

Dakota County,
Appellant,

vs.

Independent School District 196,
Co-Appellant.

Filed July 3, 2023
Reversed
Ross, Judge

Dakota County District Court
File No. 19HA-CV-20-3571

Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota; and

Adam P. Rutzick, Rutzick Law Office, PA, St. Paul, Minnesota; and

Gregory J. Walsh, Walsh & Gaertner, PA, St. Paul, Minnesota (for respondent)

Joseph E. Flynn, Pierre N. Regnier, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo,
Minnesota (for co-appellant City of Eagan)
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Kathryn M. Keena, Dakota County Attorney, William M. Topka, Assistant County
Attorney, Hastings, Minnesota (for appellant Dakota County)

Mark P. Hodkinson, Brian W. Varland, Heley, Duncan & Melander, PLLP, Minneapolis,
Minnesota (for co-appellant Independent School District 196)

Tim Sullivan, Jennifer K. Earley, Mary Haasl, Ratwik, Roszak & Maloney, P.A., St. Paul,
Minnesota (for amicus curiae Minnesota School Boards Association)

Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
A boy crossing a county road by bicycle on his way to school was struck and killed
by a car. The boy’s family settled any claims against the driver and sued the county, city,
and school district for having negligently failed to reduce the speed limit or post warning
signs on the road. The defendants each unsuccessfully moved for summary judgment. We
reverse the district court’s orders denying summary judgment because neither the city nor
the school district owed the boy a duty and because the county is entitled to vicarious
official immunity.
FACTS
This negligence action arose from a car-bicycle collision that sadly resulted in the
death of thirteen- year-old Patric Vitek, who was struck cycling across a county road in
November 2019 on his way to school. We decide this appeal from the district court’s orders
denying summary judgment by considering the facts in the light most favorable to
respondent Brian Vitek, Patric’s father, as the nonmoving party.
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The collision occurred on a segment of County State Aid Highway 30, also known
as Diffley Road, located in the City of Eagan just south of three public schools within
Independent School District 196: Northview Elementary School, Dakota Hills Middle
School, and Eagan High School. Appellant Dakota County owns and manages Diffley
Road, which is a four-lane minor arterial roadway designed to handle a high volume of
vehicular traffic. The speed limit on the date of the incident was 45 miles per hour, and the
road did not have a reduced, school-zone speed limit . Eagan residents had expressed
concerns about safety on Diffley Road since at least 1985, citing its proximity to the
schools. They had raised safety concerns to appellants City of Eagan, Dakota County, and
Independent School District 196 about the speed limit, the nearby intersections, and other
general traffic issues.
Each government entity’s role differs as it relates to safety on Diffley Road. The
county is the road’s owner and operator. The county cannot on its own change the road’s
underlying speed limit, meaning the speed limit generally in effect, but it can on its own
impose a reduced, school-zone speed limit effective when children are present. A county
official testified that the county could enact a school-zone speed limit by following the
process outlined in the Minnesota Department of Transportation (MnDOT) guide, “A
Guide to Establishing Speed Limits in School Zones.” According to that guide, the county
would first decide to initiate the process and then seek a school-route plan from the school
district before deciding whether to implement a school-zone speed limit.
The county could request that MnDOT change the underlying speed limit on Diffley
Road with the city’s involvement. To do so, according to county policy, it must first obtain
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a resolution from the city requesting a change and then request a speed-limit study from
the state. The city itself lacks authority to unilaterally change the speed limit on Diffley
Road. But it had a t least once sent a resolution to the county requesting a reduced speed
limit on the road. Responding to a 1985 citizen petition, the Eagan City Council passed a
resolution, which it forwarded to the county, encouraging the county to undertake a safety
assessment of the speed on the road. Otherwise, the city has responded to complaints about
the safety of Diffley Road by forwarding them to the county.
The school district lacks authority to impose or change school-zone speed limits,
but it can be involved in the county’s consideration of a change. That is, the county’s speed-
limit-change process would include receiving a school-route plan from the school district
before evaluating a change. The school district created student transportation plans,
including creating bus routes and safety guidance for students traveling to school. The
district had designated Diffley Road as hazardous because of its minor-arterial-roadway
designation, meaning that students having to cross the road to reach school would not be
required to walk or bike and would instead be assigned to ride a school bus. Because the
district provided this preferred method of crossing the road using nonpedestrian means for
students to reach the schools by bus, it did not participate in a school-zone speed-limit
analysis or initiate a study.
The county’s decision not to pursue creating a school-zone speed limit on Diffley
Road before the November 2019 accident rested in part on the belief held by county
officials that the school district would not provide it with a school-route plan. But a school-
district official testified that she would have provided a plan to the county if it had asked
5
for one. A county official also communicated with Eagan residents about his concerns with
implementing a school-zone speed limit on the road. In response to a resident advocating
for a lower speed limit in 2016, the official explained that “school speed zones can create
problems due to speed differential between those drivers that do and do not comply with a
reduced speed.” He reasoned that, given the district’s busing policy, “the best approach
here is likely to pursue strategies that discour age any crossings by school aged children.”
Responding to a complaint in 2018, the official referenced “A Guide to Establishing Speed
Limits in School Zones” and repeated that school speed zones can increase rather than
decrease danger to pedestrians. He highlighted the low level of pedestrian activity on
Diffley Road and stated that a broader, comprehensive approach would be more effective.
He also commented that the county was still evaluating the best approach to increase safety
on the road. Although residents continued to raise speed and other safety concerns, and the
county said it was undertaking a wider county school-zone analysis, the county undertook
no action to implement new safety measures on Diffley Road before November 2019.
Brian Vitek brought this lawsuit in October 2020 as trustee for Patric’s next-of-kin.
Vitek first sued only the county and city, alleging that the entities
failed in their duty to safely design, maintain, and implement
safe and proper speed limits within the designated school zone
and hazardous crossing area, as well as failing to implement
the posting and use of traffic control signs, devices, and/or
warnings for the anticipated users of this road, including
motorists, pedestrians and bicyclists, and failed to implement
safe and proper crossing availability for students, including
bicyclists and pedestrians.

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The county filed a third-party indemnity complaint against the school district. Vitek then
filed a claim against the school district, alleging that it “breached its duty of care to Patric
Vitek by failing to administer, implement and execute policies, procedures, and protocols
to prevent and/or reduce the opportunity for bodily injury or harm resulting in his death.”
The county, city, and school district each moved for summary judgment. The district
court denied the motions. It concluded, among other things, that genuine issues of material
fact existed on the issues of duty and immunity. The county appealed the decision, and the
city and school district filed notices of related appeal. We accepted jurisdiction and now
decide the appeal as to all defendants.
DECISION
The county, city, and school district challenge the district court’s decision refusing
to grant summary judgment in their favor. A district court must grant summary judgment
when there is no material fact in genuine dispute and judgment as a matter of law is
warranted, Minn. R. Civ. P. 56.01, and we review summary-judgment decisions de novo,
Montemayor v. Sebright Prod., Inc., 898 N.W.2d 623, 628 (Minn. 2017). We view the
evidence in the light most favorable to Vitek as the nonmoving party. Fenrich v. The Blake
Sch., 920 N.W.2d 195, 201 (Minn. 2018). We are convinced that no genuine disputes of
material fact preclude summary judgment favoring the appellants.
Appellants argue that summary judgment should have been granted because
vicarious official immunity shields them from civil liability for their decisions related to
the speed limit, and the county and school district argue that statutory discretionary
immunity also applies to their decisions. The city and school district contend additionally
7
that the undisputed facts confirm that they owed no duty to Patric, defeating the negligence-
based theory of liability. For the following reasons, we conclude that the city and school
district owed no duty to Patric and that, because of vicarious official immunity, the county
is shielded from liability. We do not reach the appellants’ other arguments.
I
The city and school district argue that they are entitled to summary judgment
because they owed Patric no duty. A plaintiff alleging liability based on negligence can
prevail only by proving the existence of a duty, a breach of the duty, causation, and injury.
Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011). We consider whether a duty exists,
a question of law, de novo. Id. Considering the evidence in Vitek’s favor, we conclude that
the city and school district owed no duty to Patric Vitek as he crossed the road.
It is significant that Patric was struck and killed by a vehicle driven by a nonparty
driver, and this fact argues against liability here. A defendant generally owes no duty to a
plaintiff to prevent harm caused by a third party. Fenrich, 920 N.W.2d at 201 . Two
exceptions to this general rule exist. One exception applies when the plaintiff and defendant
are in a special relationship and the third party’s actions create a foreseeable risk of harm.
Domagala, 805 N.W.2d at 23. The other applies when a defendant’s “own conduct” creates
a risk of injury to a foreseeable plaintiff. Id.
The parties agree that only the “own conduct” exception is at issue here. That
exception allows for liability when a defendant’s conduct constitutes misfeasance rather
than simply nonfeasance. Fenrich, 920 N.W.2d at 203. Vitek contends that the city and
school district engaged in misfeasance. Misfeasance is “active misconduct working
8
positive injury to others,” while nonfeasance is “passive inaction or a failure to take steps
to protect others from harm.” Id. (quotations omitted). Whether conduct is misfeasance or
nonfeasance is a question of law absent genuine fact issues about a defendant’s actions and
responsibilities. Id. at 205 n.4. Considering the evidence in the light most favorable to
Vitek, we conclude that the city and school district’s conduct constituted only nonfeasance,
not misfeasance.
A. The City of Eagan did not engage in misfeasance.
The city argues that it could not have had a duty to enact safety measures because it
had no control over Diffley Road, a road belonging to the county. Vitek challenges this
position by referencing two city–county maintenance agreements and the city’s crosswalk
policy, documents that he argues evidence the city’s having a duty to oversee traffic safety
on the road. Vitek’s interpretation of these documents is far from convincing; the
maintenance agreements cover controlled intersections on Diffley Road rather than the
road itself, and the pedestrian policy expressly refers only to city roads. But even if the
agreements suggest some level of city influence over Diffley Road, Vitek’s duty argument
fails because he has not alleged any behavior that rises above nonfeasance and into
misfeasance, and he therefore falls short of the “own conduct” exception.
Vitek unpersuasively references two city actions that he argues constitute
misfeasance. He references the city’s alleged awareness of resident concerns about Diffley
Road and its passing of a resolution calling for county action as “the next step in the
mandatory process.” The record does contain evidence that the city previously passed a
resolution favoring lowering the speed limit on the road, and a county official testified that
9
the county needed city cooperation to make changes on roads within city limits. But these
actions bear only on changes to the underlying speed limit, not a school-zone reduced limit.
And even accepting as true that the city had some role to play in reducing the speed limit
but did not play it, the alleged breach constitutes mere nonaction, or, more fitting in the
context of the exception we are considering here—n onfeasance. The “own conduc t”
exception requires action, so the apparent fact dispute over the city’s role is not material
and cannot preclude summary judgment favoring the city.
Vitek also urges a holding of misfeasance based on the city’s referrals to the county
of resident complaints concerning Diffley Road. He maintains that the referrals, which are
affirmative actions by the city, caused a delay in the county’s process that could have led
to safety changes. But actionable misfeasance is “active misconduct working positive
injury to others.” Fenrich, 920 N.W.2d at 203 (quotation omitted) . The city’s referring
complaints to the county was not active misconduct working a positive injury. The referrals
instead recognized that the county owns the road and has the authority to implement a
school speed zone and to initiate the process to implement a school-zone speed limit.
Vitek did not identify any city action that constitutes misfeasance. The city had no
duty to Patric Vitek. We need not address the city’s argument about the public-duty
doctrine because we conclude that the “own conduct” duty exception does not apply. The
city is entitled to summary judgment.
B. Independent School District 196 did not engage in misfeasance.
The school district argues that the breadth of its duty does not extend to areas outside
of its direct control—the school grounds and school buses—and that it committed no active
10
misconduct otherwise giving rise to a duty. The argument is persuasive, and Vitek does not
identify contrary evidence or present a convincing counterargument. The lack of any
misfeasance by the district is dispositive.
The school district’s not providing a school- route plan to the county is, again, a
nonaction: nonfeasance, not misfeasance. The county explains the school-zone speed-limit
process by highlighting MnDOT’s “A Guide to Establishing Speed Limits in School
Zones.” The guide indicates that the county’s first step in that process is to obtain a school-
route plan from the school district. Here too, the parties identify a fact dispute that is not
material to our summary-judgment analysis. Vitek and the school district dispute whether
the school district was asked for a school-route plan and whether it would have provided
the county with one if it had been asked. Even assuming the county asked the school district
for a school-route plan, and even assuming the district declined to provide one, the district’s
failure to provide the plan amounts to no more than another nonaction, or mere
nonfeasance. And although the district’s referring safety complaints to the county are
actions, referring complaints is not misconduct for the reasons we discussed above.
And the actions the school district did take regarding Diffley Road , which were
designating it as hazardous and implementing a bus policy that relieved even those students
who live near the schools of the need to walk across the road to get there, were not active
misconduct leading to Patric’s injury. The cases Vitek cites as examples of active
misfeasance make the argument against his position. Unlike this case, each involves an
actor committing an affirmative act that was objectively wrongful and that created a
foreseeable risk of harm. In Brower v. Northern Pac. Ry. Co., the supreme court held that
11
a duty existed when the defendant replaced a broken gauge without applying a guard and
failed to warn the plaintiff of the associated risks. 124 N.W. 10, 11 (Minn. 1910). The
Domagala court held that a landscaper created a duty when he “forcefully sh[ook] a bucket
attachment that was hanging vertically from a skid loader” and “admitted more than once
that he created a ‘very’ dangerous situation.” 805 N.W.2d at 27–28. The supreme court in
Delgado v. Lohmar reasoned that whether the defendants knew that the plaintiff was on
the property created a fact issue as to duty because a person “bearing firearms who has
knowingly set foot onto the land of another without his knowledge or consent has created
an unreasonable risk of harm to those lawfully on the property.” 289 N.W.2d 479, 483–84
(Minn. 1979). And the Fenrich court held that the plaintiff could prove misfeasance when
a school official “took active responsibility for coordinating transportation” to a track meet
and “expressly approved the plan” for a teenager to drive to the meet without providing
any safety instructions. 920 N.W.2d at 204. By contrast, here t he school district engaged
in no active wrongful conduct by designating Diffley Road as hazardous and implementing
a busing policy that did not direct pedestrian travel to school across the road. The actions
were not misfeasance.
Vitek identifies no action by the school district that constitutes active misconduct.
The school district owed no duty to Patric, and it is therefore entitled to summary judgment.
II
The county convincingly argues for summary judgment based on its challenged
school-zone decisions being protected by vicarious official immunity. We review de novo
12
whether vicarious official immunity applies. Kariniemi v. City of Rockford, 882 N.W.2d
593, 599 (Minn. 2016). We conclude that the county is immune from liability.
The type of immunity at issue here is official immunity. Official immunity protects
government actors in performing those duties that require their professional judgment. Id.
at 599–600. A public official exercising his duties using judgment or discretion is therefore
not liable for his decisions unless he is guilty of a willful or malicious wrong. Id. at 600.
And official immunity is generally extended vicariously to employers when “officials’
performance would be hindered as a result of the officials second- guessing themselves
when making decisions, in anticipation that their government employer would also sustain
liability as a result of their actions.” Schroeder v. St. Louis County, 708 N.W.2d 497, 508
(Minn. 2006) (quotation omitted). To determine whether official immunity applies, we
identify the conduct at issue, we determine whether that conduct is discretionary or
ministerial, and, if it is discretionary, we determine whether the conduct was willful or
malicious. Vassallo ex rel. Brown v. Majeski , 842 N.W.2d 456, 462 (Minn. 2014). We
conclude here that the county official or officials tasked with speed-limit decisions engaged
in discretionary decision-making without evidence of malice , entitling the county to
immunity.
We first identify the conduct at issue : Vitek argues that the county was negligent
because it failed to enact a school-zone speed limit or place safety -warning signage on
Diffley Road. We next determine whether the conduct was discretionary or ministerial, a
question of law. Id. at 463. A discretionary duty involves the professional judgment of the
individual, incorporating the goals and factors of a situation, while a ministerial duty is
13
“absolute, certain, and imperative” and involves an official executing a specific duty
arising from fixed facts. Id. at 462 (quotation omitted). The official here serves as the
county’s transportation director and county engineer. We agree with the county that the
record compels a holding that the official’s safety-measure decision-making required his
professional judgment and was therefore discretionary.
Both law and fact support this conclusion. As to the law, the statute allowing the
county to implement a school-zone speed limit itself reflects the discretionary nature of the
decision. It establishes that “[l]ocal authorities may establish a school speed limit within a
school zone of a public or nonpublic school upon the basis of an engineering and traffic
investigation as prescribed by the commissioner of transportation.” Minn. Stat. § 169.14,
subd. 5a(a) (2022) (emphasis added). And as to the facts, t he county official twice
responded to inquiries about why he declined to reduce the speed limit after resident
complaints, explaining that the area had low pedestrian activity and that school-zone speed
limits can increase risk to pedestrians because of inconsistent compliance with the lower
limits. He relied on MnDOT’s “A Guide to Establishing Speed Limits in School Zones,”
which highlights professional discretion. Specifically, it emphasizes that an official should
use his “reason and judgment,” should consider multiple techniques to address safety
concerns, and should determine routes that will be the safest “with the least cost and most
assurance that they will be used.” These references to official judgment are evidence that
the decision is discretionary. See Ireland v. Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 274
(Minn. App. 1996) (holding that a decision was discretionary based on a manual’s “express
deference to the judgment of engineers in installing traffic control devices”), rev. denied
14
(Minn. Sept. 20, 1996); Vassallo, 842 N.W.2d at 464 (holding that language in a policy
“invite[d] individual professional judgment that necessarily involves the exercise of
discretion”). The record contains abundant support for our holding that the county official’s
decision concerning whether to pursue a reduced school-zone speed limit was
discretionary.
Vitek attempts to frame the county’s failure to enact safety measures on Diffley
Road as a ministerial failure to carry out the county’s policy-level decision to “protect
student pedestrians and to respond to citizen concerns, and to follow the protocol for speed
zone changes and warnings required for ‘dangerous intersections.’” He relies on Sletten v.
Ramsey County, a case in which the supreme court refused to apply official immunity when
a county official failed to follow law and procedure compelling the county to make certain
health decisions in operating a compost facility. 675 N.W.2d 291, 306 (Minn. 2004). The
reliance on Sletten is misplaced. Unlike the circumstances in that case, the alleged county
policy at issue here is not based on a statute or other law compelling the county to undertake
a specific procedure. Nor does the alleged policy direct any specific governmental actions.
Although county officials may bear a general duty to protect pedestrians from harm
crossing dangerous intersections, that duty does not define what, if any, measures ought to
be taken on Diffley Road; those measures must instead be guided by professional judgment
and expertise as matters of discretion.
There being no argument or evidence suggesting that the county official’s decision-
making process involved malice, the discretionary nature of the decision shields the
15
official. We conclude that vicarious official immunity appropriately extends to the county.
The county is entitled to summary judgment.
Our decision rests only on the law. The outcome therefore is not and cannot be
influenced by what is certainly the most important aspect of this case, which is the sad and
tragic loss of young Patric to his family.
Reversed.