James W. Honcik, 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This opinion is nonprecedential except as provided by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
A23-1821

James W. Honcik,
Appellant,

vs.

Norman County, Minnesota,
Respondent.

Filed July 1, 2024
Affirmed
Jesson, Judge*

Norman County District Court
File No. 54-CV-22-231

Craig E. Johnson, Johnson, Mottinger & Greenwood, PLLP, Fargo, North Dakota
(for appellant)

Thomas H. Schaefer, Erstad & Riemer, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Wheelock, Presiding Judge; Ede, Judge; and Jesson,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
JESSON, Judge
Justin Wilhelm, a snowplow driver for respondent Norman County, drove his
snowplow through an intersection without stopping. Wilhelm did not see appellant James
Honcik’s car approaching when he did so. The car and the plow collided.
Honcik sued Norman County for negligence. He argued that the intersection was
clear of ice and snow, so Wilhelm was required to stop at the stop sign like all other drivers.
Wilhelm claimed that he proceeded through the intersection to maintain proper speed to
clear a snowdrift on the other side of the intersection. The district court granted the county’s
motion for summary judgment, reasoning that Wilhelm’s action was discretionary and thus
protected under the official immunity doctrine. Honcik appeals.
Because the undisputed material facts, taken in the light most favorable to Honcik,
establish that any claimed negligence originated from Wilhelm’s discretionary decision-
making, we affirm.
FACTS
On the cold, clear Monday morning of Valentine’s Day 2022, Wilhelm was clearing
snowdrifts for Norman County after the county dispatched its fleet of snowplows to clear
snowdrifts and icy conditions created on roads by strong winds over the weekend. By 8:30
a.m., Wilhelm had cleared both directions of Highway 39. He then began clearing an
intersecting road, Highway 4.
When Wilhelm approached the controlled intersection of Highway 4 and Highway
39, he saw a snowdrift on the side of the road near the stop sign past the intersection. He
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intended to proceed through the intersection without stopping—and with the wing blade of
the plow down—so that he could effectively throw snow and clear the drift. The
snowplow’s lights were engaged. Generally, the county affords its snowplow drivers the
discretion to determine the most effective way to clear the roads. It has no explicit policy
requiring snowplow drivers to stop at stop signs.
Wilhelm slowed the snowplow as he neared the intersection to determine if it was
safe to proceed through the intersection without stopping. But Wilhelm did not see
Honcik’s car approaching. Wilhelm stated that Honcik must have been in his blind spot.
When the snowplow entered the intersection without coming to a stop, Honcik’s car struck
the snowplow’s side wing blade. Honcik was injured in the accident.
Honcik filed a negligence claim against Norman County. He asserted that Wilhelm
negligently operated the snowplow and Wilhelm’s negligence is attributable to the county.
Norman County moved for summary judgment, arguing that Wilhelm was engaged in a
discretionary act that is protected by official immunity. The district court granted the
county’s summary judgment motion. Honcik appeals.
DECISION
When we review a grant of summary judgment, we determine whether there are
genuine issues of material fact and whether the district court erred in applying the law. St.
Matthews Church of God & Christ v. State Farm Fire & Cas. Co., 981 N.W.2d 760, 764
(Minn. 2022). We view the facts in the light most favorable to the nonmoving party. Id.
Our review of a district court’s summary-judgment dismissal of a claim based on immunity
is de novo. Id. And the party asserting official immunity—here, Norman County —has the
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burden to show facts which establish immunity. Podruch v. State, Dep’t of Pub. Safety,
674 N.W.2d 252, 254 (Minn. App. 2004), rev. denied (Minn. Apr. 20, 2004).
Common-law official immunity protects government officials from being sued for
taking discretionary actions in the course of their duties. Wiederholt v. City of Minneapolis,
581 N.W.2d 312, 315 (Minn. 1998). Generally, official immunity extends to the
government employer vicariously. Id. To determine whether official immunity applies, we
look to “(1) the conduct at issue; (2) whether the conduct is discretionary or ministerial
and, if ministerial, whether any ministerial duties were violated; and (3) if discretionary,
whether the conduct w as willful or malicious.” Vassallo ex rel. Brown v. Majeski, 842
N.W.2d 456, 462 (Minn. 2014).
Here, the parties agree that the conduct in question is Wilhelm’s failure to stop at
the stop sign. Honcik does not argue that Wilhelm’s conduct was willful or malicious. Nor
does Honcik dispute that Wilhelm’s immunity—if it exists—extends to Norman County.
Accordingly, the issue before us is whether Wilhelm’s conduct was discretionary or
ministerial.
A discretionary duty “involves more individual professional judgment that
necessarily reflects the professional goal and factors of a situation.” Mumm v. Mornson ,
708 N.W.2d 475, 490-91 (Minn. 2006) (quotation omitted). But the mere existence of some
freedom of choice does not render a “simple and definite” act discretionary as a matter of
law. Williamson v. Cain, 245 N.W.2d 242, 244 (Minn. 1976). We distinguish between these
simple acts and truly discretionary ones by analyzing the “nature, quality, and complexity”
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of both the act and the decision-making process that precedes the act. Schroeder v. St. Louis
County, 708 N.W.2d 497, 507-08 (Minn. 2006).
By contrast, a ministerial duty involves an “absolute, certain, and imperative”
requirement which arises from “fixed and designated facts.” Anderson v. Anoka Hennepin
Indep. Sch. Dist. 11 , 678 N.W.2d 651, 656 (Minn. 2004) (quotation omitted). Ministerial
duties can arise from government protocols that direct a sufficiently narrow standard of
conduct. Id. at 659. These protocols encompass any standard that the employee is bound to
follow, including statutes, ordinances, and unwritten practices. Id. at 659, 662 n. 11. In
short, a protocol creates a ministerial duty when it defines acceptable conduct so narrowly
that independent action is “neither required nor desired.” Id. at 655, 659.
Applying these principles to the snowplowing context, Minnesota caselaw seeks to
avoid “deterring snowplow drivers from exercising their judgment when making the
difficult decisions that may arise in the often-hazardous activity of snow removal.” Shariss
v. City of Bloomington , 852 N.W.2d 278, 283 (Minn. App. 2014). For example, in In re
Alexandria Accident , a driver, plowing a median he determined to be a hazard,
inadvertently created whiteout conditions which led to a crash that killed seven people. 561
N.W.2d 543, 545-46 (Minn. App. 1997), rev. denied (Minn. Jun. 26, 1997). The driver was
subject to a policy that recommended drivers delay plowing a shoulder if the snow is not
hazardous and plowing could cause visibility problems. Id. at 546. We held that the driver’s
decision to plow was discretionary because the policy authorized him to “assess the
existing conditions and rely on his judgment to determine the best time and manner for
plowing,” and he did so in choosing to plow the median. Id. at 549.
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But snowplow drivers are not cloaked with official immunity when engaged in
ministerial tasks. In Shariss, we held that a snowplow operator who was blocking traffic
while waiting in line to dump snow was not entitled to official immunity for backing into
the path of another car. 852 N.W.2d at 280, 283-84. The snowplow driver intended to
follow the “standard operating procedure” of not blocking traffic. Id. at 283. We reasoned
that reversing the snowplow in this context was a “simple and definite” job, especially
compared to the hazardous and often discretionary task of “snow-removal operations.” Id.
As both parties note, we have applied these rules to similar facts in nonprecedential
opinions, which we consider for their persuasive value. See Minn. R. Civ. App. P. 136.01,
subd. 1(c). In one case, we concl uded that a snowplow driver’s decision to cross into
oncoming traffic was ministerial: he did so only because the snowplow “took off to the
left” without explanation, and he did not make “decisions regarding speed, time, and
manner of plowing.” Fernow v. Gould, No. A10-223, 2010 WL 3463694, at *3 (Minn.
App. Sept. 7, 2010) (quotation omitted). In contrast, in another case we held that a
snowplow driver was entitled to immunity when he crossed over to plow the other side of
a highway because, even though he was not actively plowing, crossing over was “part of
the larger act of operating a plow, an activity that includes multiple discretionary
decisions.” Gustafson v. Semmer, No. A09-1201, 2010 WL 608017, at *2 (Minn. App. Feb.
23, 2010).
Applying the principles in these cases to the facts before us, we conclude that
Wilhelm’s decision to proceed through the stop sign without stopping was discretionary.
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Here, Norman County gave snowplow drivers broad discretion in operating their
snowplows. Snowplow drivers throughout Minnesota are exempt from general traffic
regulations “while actually engaged in work upon the highway.” Minn. Stat. § 169.035,
subd. 1(a) (2022). Nonetheless, Norman County could have required snowplow drivers to
follow traffic statutes. It did not. See Thompson v. City of Minneapolis, 707 N.W.2d 669,
674-75 (Minn. 2006) (internal protocols can create ministerial duty) . Instead, the county
authorized snowplow drivers to “exercise professional judgment and discretion” in
determining “the best means and methods” to clear the roads. One method the county
authorized is proceeding through a stop sign without stopping if it is safe to do so. 1 We
have held that similar protocols create a discretionary duty. See, e.g., Schroeder, 708
N.W.2d at 506-08 (policy that authorized but did not require grading against traffic created
discretionary duty); Alexandria Accident, 561 N.W.2d at 549 (policy that authorized but
did not mandate plowing median created discretionary duty).
Having established that Norman County grants snowplow drivers discretion in
clearing the roads, we turn to whether Wilhelm acted within the scope of that discretion.
The record before us demonstrates that he did. It is undisputed that, at the time of the
accident, Wilhelm was driving a county-owned snowplow on his assigned route with his

1 Norman County’s requirement that snowplow drivers stop if it is unsafe is not narrow
enough to create a ministerial duty. Analyzing a “textbook example” of a discretionary
duty, the supreme court concluded that a requirement for emergency vehicles to “slow
down as necessary for safety” was not ministerial. Vasallo, 842 N.W.2d at 463 (quotation
omitted). The court reasoned that a driver would need to exercise judgment to determine
the appropriate speed. Id. The same is true here: Wilhelm had to make a snap judgment
about whether it would be safe to proceed through the stop sign.
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lights on and side wing down. Wilhelm testified that he saw a snowdrift encroaching onto
Highway 4 near the controlled intersection and determined the drift would become
hazardous if he did not clear it. He considered proceeding through the intersection without
stopping so that he could maintain the speed necessary to effectively clear snow and ice.
Wilhelm reasoned that the environment was proper for such a maneuver: he was “out in
the open” and there were not “trees and hills.” He slowed his plow a s he approached the
intersection and looked for oncoming traffic, but he did not see Honcik.
Wilhelm was not presented with a “simple and definite” decision when he
approached the stop sign. See Shariss, 852 N.W.2d at 283 (quotation omitted). He was
required to weigh several competing factors and make a split-second decision. This
undisputed evidence demonstrates that Wilhelm exercised his discretion to fulfill the
objective of snow removal in what he perceived to be the best manner possible.
To persuade us otherwise, Honcik argues that official immunity only protects
snowplow drivers who are actively removing snow. He relies on Minnesota Statutes section
169.035, subdivision 1(a), which generally exempts snowplow drivers from traffic
regulations while “actually engaged in work upon the highways,” and our snowplow
official immunity cases which emphasize the discretionary nature of active snow-removal.
See Shariss 852 N.W.2d at 283. And he points to weather records indicating there was no
active snow event on that day, as well as pictures and testimony that he claims demonstrate
a lack of snow upon the roadway . Finally, he points out that Wilhelm was not actually
moving snow within the intersection when he drove through it. As a result, Honcik asserts
that Wilhelm was required to stop at the stop sign because he was only exempt from traffic
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statutes when actually engaged in the removal of snow or ice. His act, Honcik therefore
asserts, was not a discretionary one protected by official immunity. 2
We disagree. As discussed above, when we assess whether an act is discretionary,
we ask whether the act involved the exercise of judgment. Id. at 281. We do not isolate one
frame of an imaginary video and ask: was it snowing in that frame? Was the plow throwing
snow at that moment? Rather, we look at the evidence as a whole. And here that evidence
demonstrates that Wilhelm decided, after slowing down, to proceed through the
intersection with the snowplow’s side wing engaged to clear a snow drift on the other side.
Like in Gustafson, he was not actively pushing snow at the time of the collision. 2010 WL
608017, at *2. But in both situations, the snowplow driver was engaged in “the larger act
of operating a plow, an activity that includes multiple discretionary decisions.” Id. Granting
immunity only to snowplow drivers who are actively pushing snow is “too narrow a
treatment of the act of plowing.” Id. Because we focus on the exercise of discretion instead
of whether a snowplow driver was pushing snow at the precise time of the challenged act,
Honcik’s argument fails.

2 Honcik’s reliance on the traffic exemption statute, section 169.035, subd. 1, is misplaced.
A traffic exemption statute does not dictate whether official immunity applies. Kari v. City
of Maplewood, 582 N.W.2d 921, 924 (Minn. 1998) (concluding that emergency-vehicle
driver was entitled to official immunity even though driver exceeded statutory exemption
by failing to yield to pedestrian). We apply official immunity to protect an officials’
exercise of judgment; whether the legislature has also exempted that official from state law
is immaterial to determining whether official immunity applies. Id. at 924-25.

Even if we were to conclude that the traffic exemption statute is relevant to our official
immunity analysis, we would reach the same result because Wilhelm was engaged in “work
upon the highway” at the time of the accident. See Minn. Stat. § 169.035, subd. 1(a).
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Nor are we persuaded by Honcik’s comparisons to cases where we declined to
extend official immunity. Wilhelm’s decision to cross without stopping was considerably
more complex than the Shariss snowplow driver’s decision to drive in reverse while
waiting in line to dump snow. 852 N.W.2d at 283. Wilhelm had to make a snap judgment
about the hazards posed by a snowdrift near the intersection, his ability to safely cross, and
the most efficient way to plow his route. And in Fernow, the snowplow driver could not
prove that he exercised discretion because he provided “no explanation” for why his
snowplow “took off to the left” into oncoming traffic. 2010 WL 3463694, at *3 (quotations
omitted). Here, Wilhelm testified that his decision to proceed through the intersection was
calculated to effectively plow a snowdrift on Highway 4. In short, Wilhelm appeared to
“consider road and weather conditions to determine the appropriate speed, time, and
manner for plowing.” Shariss, 852 N.W.2d at 282.
In sum, Wilhelm exercised judgment by weighing several factors and deciding that
the best way to achieve his goal of effectively clearing the road was to proceed through the
intersection without stopping. Norman County afforded him this discretion. Therefore, the
district court did not err in granting summary judgment to Norman County.
Affirmed.