Maxwell Harvey, 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This opinion is nonprecedential except as provided by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
A25-0454

Maxwell Harvey,
Respondent,

vs.

Aubrey Dudley, et al.,
Defendants,

Josh Barlage, et al.,
Appellants,

Referee Brad Davick,
Appellant.

Filed December 15, 2025
Affirmed in part, reversed in part, and remanded
Ross, Judge

Hennepin County District Court
File No. 27-CV-23-10923

Christopher J. Kuhlman, Kuhlman Law, PLLC, Minneapolis, Minnesota; and

J. Ashwin Madia, Zane Umsted, Madia Law LLC, Minneapolis, Minnesota (for
respondent)

John P. Edison, Molly M. Fischl, Squires, Waldspurger & Mace, P.A., Minneapolis,
Minnesota (for appellants Josh Barlage, et al.)

Theodore J. Waldeck, Daniel C. Leitermann, Waldeck & Woodrow, P.A., Minneapolis,
Minnesota (for appellant Brad Davick)

Considered and decided by Bond, Presiding Judge; Ross, Judge; and Larkin, Judge.
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NONPRECEDENTIAL OPINION
ROSS, Judge
A high-school athletic trainer cleared an athlete to complete his wrestling match
after the referee stopped the contest concerned that the athlete may have been injured when
his head struck the mat. The athlete sued his coach, the school district, the referee, the
trainer, and the trainer’s employer, alleging, among other things, that he was injured by the
negligent decision to return him to competition. The district court denied all five
defendants’ motions for summary judgment on that negligence claim. The coach, school
district, and referee appeal, relying on direct or vicarious official immunity. We affirm in
part, because the referee has not advocated on appeal that he is entitled to official immunity
on the theory that he unsuccessfully relied on in the district court (that immunity extends
to him as a contractor- agent providing services for the school district), and on appeal he
relies on a theory neither considered nor decided by the district court (that he was employed
by the school district). But we reverse in part, because the coach is entitled to official
immunity for his discretionary decision to return the athlete to compete after the evaluating
trainer cleared the athlete to do so, and the school district is entitled to vicarious official
immunity for the coach’s decision.
FACTS
Maxwell Harvey wrestled on the 2019 Apple Valley High School varsity team.
Harvey was wrestling an opponent during a December wrestling tournament. The high
school’s head coach, Josh Barlage, watched the match from the team bench, and spectators
watched from the bleachers. Harvey’s opponent performed a takedown that caused
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Harvey’s head to forcefully strike the mat and led the match referee, Brad Davick, to signal
an injury timeout. Coach Barlage and the school’s certified athletic trainer, Aubrey Dudley,
approached within seconds, and Referee Davick told them that Harvey took a blow to the
head. Whether Harvey momentarily lost consciousness, and whether the coach, referee, or
trainer heard anyone declare that he did, are factually disputed.
Dudley evaluated Harvey for symptoms of a concussion, later stating that she
observed none and that Harvey reported none when she inquired. She tested Harvey’s grip
strength and eye responsiveness and asked him if he felt alright to continue. Harvey said
that he did, and Dudley told Barlage that it was her opinion that Harvey could return to
compete. Barlage saw nothing alarming in Harvey’s demeanor and was satisfied that he
could continue wrestling. Dudley, Barlage, and Davick permitted Harvey to rejoin the
match, and he did.
After the match but later during the tournament, Harvey told Dudley that he was
experiencing concussion symptoms. Dudley pulled Harvey from competing further. She
evaluated him again, this time diagnosing him as having suffered a concussion.
Harvey sued Barlage, Barlage’s employer the Independent School District 196 (ISD
196), Davick, Dudley, Dudley’s employer Twin Cities Orthopedics P.A., and two other
entities not relevant here, asserting that his continued wrestling after his head hit the mat
seriously injured him. Among other claims, Harvey alleged negligence on the theory that
the decision to return him to competition after Davick stopped the match for evaluation
breached the duty of care established by Minnesota law and the Minnesota State High
School League’s (MSHSL) safety protocols. Barlage and Davick moved for summary
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judgment on official-immunity grounds, and ISD 196 sought summary judgment based on
vicarious official immunity derived from Barlage’s immunity. Dudley and Twin Cities
Orthopedics moved for summary judgment based in part on the contention that Harvey
failed to establish that Dudley breached the medical standard of care applicable to her. The
district court denied all the defendants’ summary-judgment motions. It held that Davick is
not a public official entitled to official immunity, that fact disputes preclude deciding
Barlage’s official-immunity claim, and that ISD 196 therefore is not entitled to vicarious
official immunity.
Barlage, ISD 196, and Davick appeal from the district court’s decision denying them
official immunity.
DECISION
Barlage and ISD 196 (the school-district appellants) and Davick appeal from the
district court’s summary-judgment decision. Summary judgment is warranted when no
genuine issue of material fact precludes judgment as a matter of law. Minn. R. Civ. P.
56.01. We review de novo whether any genuine issues of material fact exist and whether
the district court erroneously appl ied the law. Riverview Muir Doran, LLC v. JADT Dev.
Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). Davick argues that he is entitled to official
immunity. The school-district appellants similarly argue that Barlage is entitled to official
immunity and that ISD 196 therefore enjoys vicarious immunity. We address these
arguments in turn.

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I
Davick argues that the district court erroneously determined that he is not entitled
to official immunity. Under the doctrine of common-law official immunity, “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.” Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988)
(quotation omitted). Davick’s argument that he is a public official entitled to immunity for
his allegedly discretionary role in returning Harvey to competition falters as a matter of
procedure. This is because we do not review issues on appeal that were not presented to or
considered by the district court or consider novel theories raised for the first time on appeal.
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). For the following reason, Davick’s
argument falls under the appellate-review limits announced in Thiele.
Harvey points out accurately that Davick asks us to review the district court’s
official-immunity decision under a theory Davick never presented to the district court.
Davick argues on appeal that he qualifies as a public official for the purposes of an official-
immunity analysis because he was the school district’s employee at the time of Harvey’s
allegedly injurious 2019 wrestling match. But he asked the district court to grant him
summary judgment under his legal theory that the district court should treat him as an
official because he served as a referee in his role as an independent contractor for the high
school. His summary- judgment memorandum characterized him as “an agent of Apple
Valley High School,” not as a school-district employee. His reply memorandum echoed
this argument, responding to Harvey’s argument that official immunity should not extend
6
to Davick as a contractor under Kariniemi v. City of Rockford, 882 N.W.2d 593 (Minn.
2016). He specifically asserted that the district court must “determin[e] whether a non-
government employee is considered a public official for the purposes of immunity” and
argued that Kariniemi supports treating him as an official. The district court tracked the
argument as Davick presented it, analyzing it as if Davick was an independent contractor
under Kariniemi. Davick never argued, and the district court never considered, his position
as framed on appeal, which is that he is entitled to official immunity as an employee of the
school district. And although we may in some circumstances consider newly presented
issues in the interest of justice, Minn. R. Civ. App. P. 103.04, Davick offers no reason why
justice is best served by overlooking his shift in strategy. Without prejudice, we therefore
do not address the merits of Davick’s new theory, and we also do not address the theory he
raised in the district court but abandoned on appeal.
II
We turn to Barlage’s challenge to the district court’s summary- judgment decision
that he is not entitled to official immunity. Again, official immunity applies to actions a
public official makes in the exercise of judgment or discretion. Elwood, 423 N.W.2d at
677. Whether the doctrine applies is a question of law we review de novo. Sletten v. Ramsey
County, 675 N.W.2d 291, 299 (Minn. 2004). We first identify the conduct at issue and
second decide whether that conduct was discretionary rather than ministerial. Vassallo by
Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014). Even if the conduct was
discretionary, an official is not protected by official immunity if he engaged in the
discretionary conduct maliciously. Schroeder v. St. Louis County, 708 N.W.2d 497, 505
7
(Minn. 2006). Our de novo review leads us to conclude that Barlage is entitled to official
immunity.
Conduct at Issue
Barlage argues that the district court erred by defining the conduct at issue as his
“decision to allow Harvey to return to the match after he may have been knocked
unconscious.” We must define the “precise governmental conduct at issue,” Mumm v.
Mornson, 708 N.W.2d 475, 490 (Minn. 2006), which, in a negligence action like this one,
is the conduct the plaintiff alleges was negligent, Watson by Hanson v. Metro. Transit
Comm’n, 553 N.W.2d 406, 411 (Minn. 1996). Harvey’s complaint accuses Barlage of
negligence because he “chose to return him to the match.” We hold that the conduct at
issue is Barlage’s decision to return Harvey to the match under the circumstances known
to Barlage at the time of his decision.
Ministerial or Discretionary
We next consider whether Barlage’s decision as to whether to return Harvey to
competition under the circumstances constituted a discretionary act versus a ministerial
act. Discretionary conduct involves “individual professional judgment that necessarily
reflects the professional goal and factors of a situation.” Wiederholt v. City of Minneapolis,
581 N.W.2d 312, 315 (Minn. 1998). By contrast, ministerial duties are “absolute, certain,
and imperative, [and] involv[e] merely execution of a specific duty arising from fixed and
designated facts.” Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 (Minn. 1999)
(quotation omitted). The law can establish a duty as merely ministerial, and so can an
organization’s internal policies. Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678
8
N.W.2d 651, 658–59 (Minn. 2004). We therefore look at the controlling law and policies
involved in Barlage’s decision.
Minnesota law requires a coach to remove a concussed athlete from play. Minn.
Stat. § 121A.38, subd. 2 (2024). Specifically, “[a] coach . . . shall remove a youth athlete
from participating in any youth athletic activity when the youth athlete” either “exhibits
signs, symptoms, or behaviors consistent with a concussion” or the athlete “is suspected of
sustaining a concussion.” Id., subd. 2(d). After an athlete is removed from an activity
“because of a concussion,” he may not rejoin until he is asymptomatic and receives a
medical professional’s written permission to participate. Id., subd. 2(e). A careful reading
of these provisions informs us that the statute prohibits returning an athlete to competition
without written permission from an evaluating medical professional if that athlete was
removed from competition because he was in fact concussed . But it includes no similar
return-to-competition restriction when the athlete was removed merely on symptoms or
suspicion of a possible concussion. In this case, because the undisputed facts establish that
Davick stopped the competition because of the force of Harvey’s contact with the mat
rather than a determination that Harvey had suffered a concussion, section 121A.38,
subdivision 2(e), did not impose a ministerial duty on Barlage to prohibit Harvey from
returning to the match.
We next consider whether applicable policies imposed a duty on Barlage to prohibit
Harvey’s return to the match. We first outline the provisions relevant to Barlage’s
challenged decision.
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Harvey points to the safety protocols of the MSHSL, which adopted the National
Federation of State High School Associations’ (NFHS) concussion rule:
Any athlete who exhibits signs, symptoms, or behaviors
consistent with a concussion (such as the loss of consciousness,
headache, dizziness, confusion, or balance problems) shall be
immediately removed from the contest and shall not return to
play until cleared by an appropriate health care professional.
The MSHSL implemented a set of protocols effectuating this rule. Referees must “know
the signs and symptoms of a concussion and immediately remove any athlete” displaying
them from competition. But the rule provides that “[o]nly an Appropriate Health Care
Professional can decide if an athlete has been concussed.” If the health-care professional
diagnoses an athlete with a concussion, her determination “is final and the athlete must be
removed from all competition for the remainder of that day.” But where she determines
after her evaluation that the athlete “did not sustain a concussion, the head coach may so
advise the officials during an appropriate stoppage of play, and the athlete may reenter
competition pursuant to the contest rules.”
The MSHSL adopted two additional protocols. The first, an “Acute injury” protocol,
instructs that when a “player shows any symptoms or signs of a concussion,” he “should
not be allowed to return to play in the current game or practice.” The second is a six-step
“Return to play protocol” for easing athletes recovering from concussions back into
competition, and completing each step “requires a minimum of 24 hours.” The MSHSL
did not amend these rules before the December 2019 wrestling match involved here. The
“2019-2020 MSHSL Eligibility Brochure,” which students must sign before competing in
MSHSL sports, includes a page entitled, “CONCUSSION MANAGEMENT
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RECOMMENDATIONS FOR MSHSL ATHLETES.” This page includes the same “Acute
injury” and “Return to play protocol” sections just outlined.
Before the 2019-2020 season, the NFH S amended its wrestling rules regarding
concussions. Under Article 4(b)(2) of rule 8-2, on-site health-care professionals may
extend an injury timeout to five minutes to evaluate a suspected head or neck injury. Under
Article 5, a health-care professional’s decision that a wrestler should not participate “shall
not be overruled.” Appendix B to the wrestling rules, which is entitled, “SUGGESTED
GUIDELINES FOR MANAGEMENT OF CONCUSSION IN SPORTS ,” offers
“SUGGESTED CONCUSSION MANAGEMENT” procedures, including that “[n]o
athlete should return to play . . . on the same day of a concussion[.]”
The final relevant policy components are in the MSHSL’s 2017 training materials,
which discuss the responsibilities of coaches who suspect an athlete of having suffered a
concussion. They instruct coaches to “[i]mmediately remove the student from play” and
keep him “out of play the day of the injury and until an Appropriate Health Care
Professional [AHCP] . . . says they are symptom-free and given the okay to return to
activity.” They also provide specific instructions for when an athlete loses consciousne ss,
stating that a “loss of consciousness, for any period of time, usually means a concussion
and requires immediate removal from participation for that entire day and further clearance
from an AHCP to return to play.” And they state, “If a loss of consciousness occurs during
play, the athlete has suffered a concussion” and “must be removed for the remainder of that
day and may not return until examined and cleared by an AHCP.” Barlage completed the
training sometime before the 2019-2020 wrestling season.
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Our careful consideration leads us to conclude that the applicable policies, rules,
and training material afford coaches the discretion to return injured athletes suspected of
having been concussed to competition if they have first been immediately removed from
play and then approved for reentry by a certified health-care professional. The MSHSL
protocols, which implement the NFH S rules, allow the head coach to advise the official
that the athlete may reenter the competition after the evaluating health-care professional
has confirmed that the athlete was not concussed. It follows that a coach’s decision to
reenter an athlete under the circumstances Barlage faced is a matter of the coach’s
discretion. Nothing in the administrative guidance, taken in part or as a whole, obligates a
coach to prohibit an athlete’s return to competition after an official removed the athlete
because of a blow to the head and then a certified trainer evaluates and clears the athlete to
return. The rule and its implementing protocols allow coaches to use their “individual
professional judgment” to decide whether to allow an athlete to return. Wiederholt, 581
N.W.2d at 315.
We are not persuaded otherwise by a brochure on which the district court based its
determination that a coach has no discretion to return an evaluated athlete to competition.
The “CONCUSSION MANAGEMENT RECOMMENDATIONS FOR MSHSL
ATHLETES” page of the 2019-2020 MSHSL Eligibility Brochure does not create a
ministerial dut y because an organization’s internal recommendations do not bind its
members to specific conduct. In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543,
549 (Minn. App. 1997), rev. denied (Minn. June 26, 1997). And the “Acute injury” section
of that document states only that a player exhibiting concussion symptoms “should” not be
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allowed to return that day, and this suggestive language is not the sort of mandatory charge
that generally creates a ministerial duty. See Dukowitz v. Hannon Sec. Servs., 841 N.W.2d
147, 156 (Minn. 2014) (“The use of the word ‘should’ in a rule or a statute is not
mandatory.”). Also key to our decision to depart from the district court’s conclusion, the
“Return to play protocol” section regards a different circumstance from the one the parties
encountered here. The protocol instructs how to carefully ease a player back into competing
after he has been diagnosed with a concussion. But at the time Dudley cleared Harvey to
return to compete after she evaluated him, Harvey had not yet been diagnosed as having
suffered a concussion.
Our conclusion is supported by the unchallenged testimony of a MSHSL
representative. That testimony corroborates the fact that coaches are treated as having
discretion. The representative testified that coaches may allow an athlete who loses
consciousness to continue competing on the same day if a health-care professional has
cleared him to return. The representative believed that where this notion might conflict
with some of the training material, the material assumes that a medical professional is not
present to evaluate the injured athlete. Although a medical professional’s presence does
not relieve a coach of his concussion-response responsibilities, medical professionals
“have a greater authority” in the continuation-of-play decision. In sum, the MSHSL rules
gave Barlage the discretion whether to defer to or override Dudley’s decision that Harvey
could continue competing.
We of course offer no opinion as to what a coach should do when faced with an
athlete known or suspected to have been concussed. Our question, which is purely legal, is
13
whether a coach in Barlage’s shoes has the discretion to return an evaluated-and-medically-
cleared athlete to competition. We hold that when an athlete is first rendered possibly
unconscious or actually unconscious and then examined by an appropriate medical
professional who evaluates whether the athlete has suffered a concussion and clears him to
continue competing, the law and applicable policies in place at the time of the 2019
wrestling match afforded Barlage the discretion as head coach whether to permit Harvey
to return to competition.
Willful or Malicious
The only remaining question is whether Barlage’s decision was malicious. Official
immunity will not protect an official’s discretionary conduct if the official engaged in
willful or malicious conduct. Schroeder, 708 N.W.2d at 505. In the official-immunity
context, “willful” and “malicious” both refer to an intentional, wrongful act without legal
justification. Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). A finding of malice
requires “specific facts evidencing bad faith,” and “[m]ere allegations” are insufficient.
Semler v. Klang, 743 N.W.2d 273, 279 (Minn. App. 2007) (quotation omitted), rev. denied
(Minn. Feb. 19, 2008). Harvey argues that Barlage’s maliciousness “remains an open
question,” and, without citation to the record, that Barlage chose to reenter Harvey despite
knowing that Minnesota law mandated his removal. We are unpersuaded by the conclusory
assertion and have already explained that the law did not mandate Harvey’s removal from
competition. Because Harvey identifies no evidence supporting his assertion that Barlage
used his discretion to return Harvey to competition out of malice, the assertion does not
prevent summary judgment.
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For these reasons, we hold that Barlage is protected by official immunity from
Harvey’s negligence claim. We turn to the school district’s related argument.
III
We agree with ISD 196 that it is entitled to vicarious immunity. When a public
official is entitled to official immunity, his government employer generally enjoys
vicarious immunity except when public policy counsels otherwise. Schroeder, 708 N.W.2d
at 508. Neither party addresses public policy in its briefing, but we believe that denying
ISD 196 immunity would penalize the school district for implementing a protocol
providing an additional layer of protection against concussions for student athletes by
enabling coaches to review a medical professional’s conclusion that an athlete may
continue playing. See Anderson, 678 N.W.2d at 664–65 (concluding that chilling effect on
policy development provided sufficient reason to extend official immunity to school
district). Vicarious immunity should be extended where officials would hesitate in the
performance of their duties in fear of exposing their government employer to liability in its
absence. Id. at 663 –64. Without dispute, Barlage is an employee of ISD 196. Because
Barlage is entitled to official immunity, ISD 196 is entitled to vicarious immunity.
Affirmed in part, reversed in part, and remanded.