MFK by and through her natural parent, Kathryn Kendrick v. Walker-Hackensack-Akeley ISD 113, ...

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1918

MFK by and through her natural parent, Kathryn Kendrick,
Respondent,

vs.

Walker-Hackensack-Akeley ISD #113,
Appellant,

DOES 1-10,
Defendants.

Filed August 5, 2024
Reversed
Reyes, Judge

Cass County District Court
File No. 11-CV-23-205

Charles A. Sagert, Sand Law, PLLC, St. Paul, Minnesota (for respondent)

Jason M. Stoffel, Theodore J. Waldeck, Waldeck & Woodrow, P.A., Minneapolis,
Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Reyes, Judge; and John Smith,

Judge. ∗

SYLLABUS

A school district’s softball coach is entitled to official immunity when the coach

exercises significant, independent judgment and discretion over how to supervise a softball

practice.

∗
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 OPINION

REYES, Judge

Appellant-school district challenges the district court’s denial of its motion for

summary judgment because the school district asserts that it is entitled to (1) vicarious

official immunity based on the discretionary acts of its coaches in supervising the softball

practice at which the respondent-student was injured and (2) dismissal of the claims

because respondent failed to provide the required notice under Minn. Stat. § 466.05 (2022).

We reverse.

FACTS

The basic facts are not in dispute. In May 2017, respondent MFK, then nine years

old and in third grade, participated in a softball practice organized by and held on the

property of appellant Walker-Hackensack-Akeley ISD #113 (the school district) and

supervised by its coaches. The practice involved at least two coaches who arranged at least

two “stations,” including a batting station, with players practicing at each station. While

at the batting station, another player accidentally struck MFK in the forehead with a softball

bat, and MFK sustained injuries, specifically, a permanent bump on her forehead.

CL was one of the coaches at practice that day. At the time of the accident, CL did

“not know if another coach had eyes on the batting station,” but was “satisfied that the

coaches were adequately near the station, that the players were of the age and ability to do

the batting activity without direct, eyes-on supervision at all times, and that in any

moment[] when there was not direct eye[s]-on supervision of the batting station, that [she]

or the other coaches could observe the station with a turn of the head.” When a student

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notified CL of the accident, she went to MFK, “administer[ed] a concussion protocol,

appl[ied] ice, and call[ed MFK’s] parents.” CL also notified “community education

administrators related to the incident.” MFK’s parents brought her home and did not seek

immediate medical treatment, although MFK later saw a doctor.

Nearly six years later, on February 6, 2023, MFK, by and through her mother,

Kathryn Kendrick, filed a two-count complaint against the school district and defendants

“DOES 1-10,” which included CL. The complaint alleged that MFK’s injuries were

directly and proximately caused by the DOES’ negligence in supervising the softball

practice and that the school district was liable under the doctrine of respondeat superior.

MFK sought judgment against the school district and DOES for at least $50,000.

On June 26, 2023, the school district moved for summary judgment, arguing in part

that MFK’s claims were barred by her failure to give the school district notice under Minn.

Stat. § 466.05 and that, even if she had, the school district was entitled to vicarious official

immunity. With her memorandum opposing summary judgment, MFK relied upon an

opinion of another softball coach to argue that CL and other coaches should have

supervised the softball practice differently. The district court denied summary judgment

after determining that the school district had actual notice of the claim to satisfy Minn. Stat.

§ 466.05 and that the manner by which coaches conduct a softball practice involves

ministerial duties not protected by official immunity.

This appeal follows.

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 ISSUE

Is the school district entitled to vicarious official immunity?

ANALYSIS

The school district argues that the district court erred by denying its motion for

summary judgment because it is entitled to (1) vicarious official immunity based, in part,

on its coaches engaging in discretionary duties that were protected by official immunity

and (2) dismissal as a matter of law because MFK failed to provide notice of her claim as

required by Minn. Stat. § 466.05, subd. 1, which prejudiced the school district. Because

we agree with the school district on the first issue, we need not reach the second.

“An appeal may be taken to [this court] . . . from such . . . orders or decisions as

may be appealable by statute or under the decisions of the Minnesota appellate courts.”

Minn. R. Civ. App. P. 103.03(j). “While denial of a motion for summary judgment is not

ordinarily appealable, an exception to this rule exists when the denial of summary judgment

is based on rejection of a statutory or official immunity defense.” Anderson v. Anoka

Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004). Appellate courts

review the denial of immunity on summary judgment to “determine whether there are

genuine issues of material fact and whether the district court erred in applying the law.”

Schroeder v. St. Louis County, 708 N.W.2d 497, 503 (Minn. 2006). Whether immunity

applies to particular facts is a question of law that appellate courts review de novo. Id.

“The party asserting an immunity defense has the burden of demonstrating facts showing

that it is entitled to immunity,” and appellate courts “presume[] the truth of the facts alleged

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by the nonmoving party.” Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 209 (Minn. App.

2001), rev. denied (Minn. Dec. 11, 2001).

The school district argues that it is entitled to vicarious official immunity because

(1) CL exercised professional judgment and discretion by determining a level of adequate

supervision of the softball practice and MFK’s reliance on the opinion of another softball

coach does not defeat the school district’s immunity defense and (2) policy considerations

support extending vicarious official immunity to the school district.

Generally, “[e]very municipality is subject to liability for its torts and those of its

officers, employees and agents acting within the scope of their employment or duties.”

Minn. Stat. § 466.02 (2022). However, several exceptions apply, including vicarious

official immunity. Whether the school district is entitled to vicarious official immunity

depends, in addition to policy considerations, upon whether CL is entitled to official

immunity. Sletten v. Ramsey County, 675 N.W.2d 291, 300, 303-04 (Minn. 2004). “The

official immunity doctrine provides that a public official charged by law with duties which

call for the exercise of [their] judgment or discretion is not personally liable to an individual

for damages unless [they are] guilty of a willful or malicious wrong.” Elwood v. Rice

County, 423 N.W.2d 671, 677 (Minn. 1988) (quotation omitted). Its purpose is to protect

“public officials from the fear of personal liability that might deter independent action and

impair effective performance of their duties.” Id. at 678. Official immunity provides

immunity from both liability and suit. Sletten, 675 N.W.2d at 299.

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I. CL is entitled to official immunity as a matter of law.

The school district argues that CL’s conduct is protected by official immunity

because she engaged in discretionary duties that required independent judgment. We

agree.

To determine whether official immunity applies, courts must consider: “(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

was willful or malicious.” Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn.

2014). Only discretionary duties are immunized, and whether a person’s conduct warrants

immunity depends on the facts of each case and the nature of the act. Nisbet v. Hennepin

County, 548 N.W.2d 314, 317 (Minn. App. 1996).

A. Conduct at Issue

“The starting point for analysis of an immunity question is identification of the

precise governmental conduct at issue.” Gleason v. Metro. Council Transit Operations,

582 N.W.2d 216, 219 (Minn. 1998) (quotation omitted). The school district frames the

conduct as “[CL’s] decision related to the level of supervision that was appropriate for the

batting station” and asserts that “the decision related to how to supervise the softball

practice.” MFK frames it more generally as CL’s “duty to supervise the children.” The

district court focused on CL’s manner of supervising the softball practice, which is

consistent with the school district’s focus on how CL supervised the softball practice. We

conclude that the “specific conduct at issue” here is how CL supervised, or in other words,

CL’s manner of supervising, the softball practice. See Majeski, 842 N.W.2d at 462.

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 B. Discretionary or Ministerial

The distinction between a discretionary and ministerial duty is “a nebulous and

difficult one.” Shariss v. City of Bloomington, 852 N.W.2d 278, 281 (Minn. App. 2014)

(quotation omitted). A discretionary duty is one that “involves more individual

professional judgment that necessarily reflects the professional goal and factors of a

situation.” Schroeder, 708 N.W.2d at 506 (quotation omitted). However, “the mere

existence of some degree of judgment or discretion will not necessarily confer common[-

]law official immunity.” Anderson, 678 N.W.2d at 656.

“Official immunity requires the discretion to be exercised . . . [as] something more

than the performance of merely ‘ministerial’ duties.” Fear, 634 N.W.2d at 215. “Official

immunity typically protects the conduct of public officials responding to uncertain

circumstances that require the weighing of competing values [because] these circumstances

offer little time for reflection and often involve incomplete and confusing information such

that the situation requires the exercise of significant, independent judgment and discretion.”

Shariss, 852 N.W.2d at 282 (quotations omitted); see also, e.g., Schroeder, 708 N.W.2d at

506 (determining road grader’s decision to grade against traffic was discretionary because

they acted “according to an established [county] policy that . . . gave [grader] the discretion

to decide, in the field, whether to operate against traffic”); Pletan v. Gaines, 494 N.W.2d

38, 41 (Minn. 1992) (concluding that police officer was entitled to official immunity for

decision to engage in car chase, which involved weighing many factors to exercise

“significant, independent judgment and discretion”); Majeski, 842 N.W.2d at 463-64

(holding that police officer’s decision to proceed through intersection at high speed with

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squad car’s lights on but sirens off was discretionary); Kari v. City of Maplewood, 582

N.W.2d 921, 925 (Minn. 1998) (holding that paramedic’s driving in response to emergency

was discretionary); Watson ex rel. Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406,

415 (Minn. 1996) (holding that bus driver’s decision not to stop bus when gang members

assaulted and threatened to kill passengers was discretionary).

Ministerial duties are those that are “absolute, certain[,] and imperative, involving

merely the execution of a specific duty arising from fixed and designated facts,” Nisbet,

548 N.W.2d at 317, and that lack a need or desire for “independent action,” Anderson, 678

N.W.2d at 655. See, e.g., Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn.

1998) (holding that sidewalk inspector lacked official immunity when duty requiring

immediate repair of sidewalk was set by city ordinance). “It is inherent in the concept of

ministerial duty that the duty must dictate the scope of the employee’s conduct.” Anderson,

678 N.W.2d at 659. A claim regarding a failure to fulfill a ministerial duty or negligent

performance of that duty is not protected by common-law official immunity. Id. at 662.

We conclude that CL’s manner of supervision of the softball practice was

discretionary for purposes of official immunity because CL exercised “significant,

independent judgment and discretion” over how she supervised the softball practice. 1

Shariss, 852 N.W.2d at 282 (emphasis and quotation omitted). CL’s affidavit, which the

school district submitted in its motion for summary judgment and is not disputed, states

1
Due to the length of time that had elapsed between MFK’s injury and her lawsuit against
the school district, the school district could not locate or verify the past existence of any
district policies governing softball practices.

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that “[w]hen coaching multiple players, it is possible to properly supervise the team while

not having eyes on every player at every moment,” and that “[p]ractice stations are set up

so that all players can be observed with a turn of the head,” which is “a common

arrangement when coaching youth sports.” CL’s affidavit states that, “in the moments

leading up to the accident,” and based on the placement of the coaches and the age and

ability of the players, she was satisfied with the level of supervision of the batting station.

CL’s supervision was not “merely the execution of a specific duty arising from fixed and

designated facts,” Nisbet, 548 N.W.2d at 317, but rather involved “uncertain circumstances

that require[d] the weighing of competing values” and the exercise of “significant,

independent judgment and discretion.” Shariss, 852 N.W.2d at 282 (quotation omitted). 2

We also conclude that the facts of this case require a different outcome than that in

Fear, upon which MFK relies in her brief. 634 N.W.2d 204. In Fear, this court concluded

that, while school-district employees responsible for supervising students at recess

exercised some discretion by deciding what students would be permitted to do, that alone

did not guarantee official immunity when there was no evidence to show that they made

discretionary decisions on those matters. Id. at 215-16. Here, unlike in Fear, the school

2
Although MFK relies on Larson ex rel. Larson v. Indep. Sch. Dist. No. 314, 289 N.W.2d
112 (Minn. 1979) and Williamson v. Cain, 245 N.W.2d 242 (1976) to argue that CL’s
conduct here was ministerial, we are not persuaded. In Larson, the supreme court classified
a gym teacher’s method for teaching a gymnastics maneuver that students were required to
learn as a ministerial duty. 289 N.W.2d at 120. However, the supreme court has since
indicated that its analysis in Larson incorrectly conflated statutory-immunity standards
with an official-immunity analysis, and it is unclear whether Larson is still good law.
Anderson, 678 N.W.2d at 656-57, 661. As to Williamson, in which the supreme court
classified the demolition of a house as ministerial, that case includes only a conclusive
analysis that is not helpful to analyzing the facts here. 245 N.W.2d at 244.

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district provided CL’s affidavit that described how CL exercised her discretion by deciding

where to locate practice stations and how many to set up, how many players to have at each

station based on their age and ability, and where to locate the coaches so they could provide

sufficient supervision for the softball practice.

Further, the other coach’s opinion submitted by MFK provides additional support

for our conclusion that CL exercised a discretionary duty here. The coach’s opinion

addresses how CL should have run the softball practice and how the coach had run similar

practices in the past. However, the coach does not cite to fixed rules or policies governing

the supervision of softball practices, and MFK has not presented any other evidence of a

required protocol or policy that could have conferred a ministerial duty on CL. Contra

Anderson, 678 N.W.2d at 657 (noting that woodshop instructor’s direction to student to

make saw cuts in certain way was ministerial from instructor’s perspective, because it was

dictated by established protocol that deprived instructor of discretion). We conclude that

the specific conduct at issue here was discretionary.

C. Willful or Malicious

MFK has not alleged that CL willfully or maliciously committed the conduct at

issue. Because we conclude that CL engaged in discretionary conduct, CL is entitled to

official immunity.

II. The school district is entitled to vicarious official immunity.

The school district next argues that, because CL is entitled to official immunity and

policy considerations support extending immunity to the school district, it is vicariously

immune from liability. The school district’s argument has merit.

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 “Generally, if a public official is found to be immune from suit on a particular issue,

his or her government employer will be vicariously immune from a suit arising from the

employee’s conduct and claims against the employer are dismissed without explanation.”

Anderson, 678 N.W.2d at 663-64 (citing Pletan, 494 N.W.2d at 42). However, a

government employer is not entitled to vicarious official immunity in all cases, and

“whether to extend vicarious official immunity to a government employer remains a policy

question.” Id. at 664. Courts apply vicarious official immunity “when failure to grant it

would focus ‘stifling attention’ on an official’s performance ‘to the serious detriment of

that performance.’” Id. (quoting Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn.

1993)).

Policy considerations support that the school district is entitled to vicarious official

immunity here. The very nature of a sports practice, especially one involving more minor

children than the number of supervising adults, requires a near-constant exercise of

“significant, independent judgment and discretion.” Shariss, 852 N.W.2d at 282 (quotation

omitted). Failure to extend the doctrine of official immunity under these circumstances

would place “stifling attention” on the role of coaches, which in turn would disincentivize

persons from holding those positions. See Anderson, 678 N.W.2d at 664-65 (concluding

that school district was entitled to vicarious official immunity “because to rule otherwise

would create a disincentive to use collective wisdom to create [] protocols and policies,”

which would result in stifling attention on teachers); Olson, 509 N.W.2d at 372 (holding

county entitled to vicarious official immunity when granting immunity to social worker

while denying it to county would put “stifling attention on the social worker’s performance,

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to the serious detriment of that performance”). Such an impact would be significant, as so

many coaching positions are filled not only by school employees, but also by volunteers

and parents. As such, we conclude that the school district is entitled to vicarious official

immunity.

DECISION

We conclude that a school district’s softball coach is entitled to official immunity

when the coach exercises significant, independent judgment and discretion over how to

supervise a softball practice. Because we also conclude that vicarious official immunity

should be extended to the school district under these circumstances, we reverse.

Reversed.

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