Under common law, a sovereign was immune from liability for certain torts. However, this doctrine was abrogated by judicial and legislative decision. Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597 (1975); Minn. Stat. § 3.736; and Minn. Stat. §§ 466.01-.15. Therefore, municipalities are no longer immune for claims based upon snow or ice conditions.
In Minnesota, the law states that "every municipality" is liable for its torts. Minn. Stat. § 466.02. However, several statutory and common law exceptions to this rule exist. See Minn. Stat. § 466.03. In cases regarding municipalities and ice and snow conditions, several immunities are important; these include:
- statutory discretionary immunity,
- common law official immunity,
- statutory immunity for snow and ice conditions, and
- the common law "mere slipperiness" doctrine.
However, there is also another statutory provision which may in some cases possibly apply to ice and snow "slip and falls" which grants municipalities immunity from "any claim upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park" or recreational area. Minn. Stat. § 466.03, Subd. 6(e).
Potential Immunities for Snow and Ice Conditions
Statutory Discretionary Immunity
First, statutory discretionary immunity may apply. See Minn. Stat. § 466.03, Subd. 6 (immunizing a municipality from "any claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused"). This type of immunity "protects the government only when it can produce evidence that its conduct was of a policy-making nature involving social, political, or economic considerations, rather than merely professional or scientific judgments." Zank v. Larsen, 552 N.W.2d 719, 721 (Minn. 1996). The courts will examine whether a decision is "operational," and hence not protected, or if it is "planning" and thus protected. Steinke v. Andover, 525 N.W.2d 173, 175 (Minn. 1994). Because planning decisions involve questions of public policy they are protected. Id.
To illustrate this distinction, the Minnesota Supreme Court has noted that the "decision as to whether a road should be plowed or whether plows should be deployed on any given date falls within the discretionary function because it is made at the planning level. The job of plowing itself, however, is an operational function because it is simple and definite." Robinson v. Hollatz, 374 N.W.2d 300, 302-3 (Minn. Ct. App. 1985). Minnesota courts have also applied this principle in holding that municipalities are immune from claims arising from failure to remove or sand ice. See Hennes v. Patterson, 443 N.W.2d 198 (Minn. Ct. App. 1989) (development of plowing policy is discretionary); Wesala v. City of Virginia, 390 N.W.2d 285 (Minn. Ct. App. 1986) (decision to sand streets is discretionary).
2) Common Law Official Immunity
Second, common law official immunity may apply. This type of immunity provides that "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 willful or malicious wrong." Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988). Official immunity may work "in concert" with discretionary immunity and is intended to protect public officials "from the fear of personal liability that might deter independent action." Janklow v. Minnesota Bd. of Exam'rs for Nursing Home Admin., 552 N.W.2d 711, 715 (Minn. 1996).
Official immunity has historically been applied in emergency situations. The classic example is where a police officer is afforded immunity for split-second critical judgment made during a high speed chase of a fleeing felon. See, e.g., Pletan v. Gaines, 494 N.W.2d 38 (Minn. 1992). However, the Minnesota Court of Appeals has recently applied the official immunity doctrine in a non-emergency setting in a slip and fall premises liability case. In Carlson v. Independent School District No. 281, (Case No. 98C495001303 (Minn. Ct. App. 1995), the court ruled that a physical education teacher's decision to conduct classes outdoors was a decision protected by official immunity. Because the physical education teacher had to consider various factors, including the weather, ice conditions, and the availability of other facilities, this was a judgment call not arising from fixed or designated facts. Therefore, both the teacher and his school district employer were given immunity.
3) Statutory "Snow and Ice" Immunity
In addition, Minn. Stat. § 466.03, Subd. 4 provides that a municipality is immune from liability for "[a]ny claim based on snow or ice conditions on any highway or public sidewalk that does not abut a publicly owned building or publicly owned parking lot, except when the condition is affirmatively caused by the negligent acts of the municipality." Id. (emphasis added). This exception to the general rule of liability requires that sidewalks and roads must be made safe within a reasonable period of time following any snowfall.
4) Common Law "Mere Slipperiness" Doctrine
Finally, there is common law doctrine which affords a municipality protection although it is not technically "an immunity". The doctrine has been stated as follows:
A municipality has never been held liable for injuries sustained in a fall on newly formed glare ice although a municipality is liable if it negligently permits an accumulation of ice and snow to remain on a sidewalk for such a period of time that slippery and dangerous ridges, hummocks, depressions, and other irregularities develop there.
In Doyle v. City of Roseville, 524 N.W.2d 461, 463 (Minn. 1994) (emphasis added). Even after the adoption of the Municipal Tort Liability Act, Minnesota courts continue to recognize this common law rule even where no other immunity applies. Id.
Cases Applying Minn. Stat. § 466.03, Subd. 4 - Statutory "Snow and Ice" Immunity
When a plaintiff brings an action against a municipality for conditions caused by snow and ice, that municipality may utilize several types of immunity protection. Courts discuss various immunities simultaneously, and continually weave the various immunities together to reach their decision. The following analysis presents cases that discuss and apply the statutory immunity for snow and ice conditions.
Cases Where Immunity did not Apply
The following "slip & fall" cases resulted in determinations not relieving a municipality from liability. See generally Bufkin v. City of Duluth, 291 N.W.2d 225 (Minn. 1980) (holding limited in a subsequent decision (Doyle, supra)), Lockway v. Proulx, 283 Minn. 30, 166 N.W.2d 79 (Minn. 1969). In Bufkin, the plaintiff was injured when he fell on a patch of glare ice while entering a city auditorium. 291 N.W.2d at 226. The court held that because the city operated the auditorium for profit it had the same duty of care to maintain the walk as does a private landowner of a similar enterprise and thus was not immune from liability. Id. at 227. In a footnote, the court addressed immunity under Minn. Stat. § 466.03 subd. 4. Id. It stated that this provision would not apply since, in an earlier decision (Lockway), the court held that provision only applies to streets and public places used for vehicular traffic." Id. However, the legislature amended the Municipal Tort Liability Act, Minn. Stat. § 466.03, Subd. 4 in 1986 to include "public sidewalks." Thus, the holding in Lockway has little application today. Moreover, despite a finding of no immunity in Bufkin, subsequent plaintiffs have been largely unsuccessful in their attempts to rely on its holding. See Doyle, 524 N.W.2d at 463.
Another case regarding a slip and fall on ice was McEnaney v. St. Paul Civic center, et al., No. C0-92-182, 1992 WL 174674. There, the plaintiff sued the city for injuries she sustained when she fell while taking an alternate, unshoveled route while leaving the St. Paul Civic Center. Although a shoveled route existed, the plaintiff decided to use the alternate route as she thought it offered better traction due to the snow cover. The court held that Minn. Stat. § 466.03 subd. 4 did not apply to immunize the city because the sidewalk abutted a public building. The city was held to the standard of a private landowner and had a duty to maintain its premises in a safe condition. However, the court of appeals upheld the trial court's directed verdict in favor of the city, stating that it had no duty to shovel the alternate route the plaintiff had chosen or every possible alternate route.
In sum, these cases are of limited use to a plaintiff seeking damages from a municipality for a slip and fall on an icy sidewalk. Moreover, in defending a slip and fall case, the municipality would need not rely solely upon the statutory snow and ice immunity but could utilize any of the immunities previously discussed.
Cases in Which Immunity Applied
Several recent cases apply "snow and ice" immunity in favor of municipalities. In In Re Alexandria Accident of February 8, 1994, Nos. C7-96-2178, C9-96-2179, April 1, 1997, the court of appeals held that Minn. Stat. § 466.03, Subd. 4 applied to bar claims against the state for the operations of its snow plow drivers. Specifically, the court stated that the plaintiff failed to show that the driver violated any established plowing policies. In addition, the court applied similar reasoning under statutory discretionary immunity and common law official immunity.
In Cole v. Metropolitan Transit Commission, No. C5-95-1858, 1996 WL 56506, the court of appeals held that the City of Minneapolis was immune from liability. In this case, the plaintiff slipped on accumulated ice near the curb, slid under a bus, and was run over. In its decision, the court discussed both statutory discretionary immunity and snow and ice immunity, but it decided the case under discretionary immunity. It held that the city was immune from liability because it plowed in accordance with its established policy. In contrast, the court stated that the city would not avoid liability if it had negligently implemented the policy. The court did not address immunity under Minn. Stat. § 466.03, Subd. 4 specifically although it included the text of the statute in its decision.
The court of appeals utilized Minn. Stat. § 466.03, Subd. 4 to relieve a city of liability for a slip and fall case. See Ginter v. Lesneski, No. C7-95-937, October 24, 1995. There, the court held that the city was immune from a suit brought by a woman who slipped on a sidewalk in front of a hardware store. The store adjoined an alley across from which was a public parking lot, 70 feet to the south. Ms. Ginter argued that the "abutting" exception applied, and that the city was not relieved of liability. However, the court stated that the 70 feet of land between the sidewalk and the public parking lot overrode the "abutting" exception. Thus, Minn. Stat. § 466.03, Subd. 4 protected the city.
Although not a slip and fall case, another court of appeals decision applied statutory snow and ice immunity to a one-vehicle accident where the plaintiff claimed that the city should have cleared overhanging branches from the roadway and widened the road. In this case, the plaintiff was injured when the automobile he was driving hit a pothole or rut and caused him to lose control on the icy roadway. There, the court held that Minn. Stat. § 466.03 subd. 4 protected the city even though the snow and ice condition was not the sole basis for the claim. See Green v. Bloom Township, No. C2-95-280, July 3, 1995 (emphasis added).
Additionally, in an earlier decision, the court of appeals held that the City of Austin should have been granted summary judgment based upon the snow and ice immunity statute. Diggins v. Plunkett, Nos. C4-93-163, C4-93-583, 1993 WL 242980. In that case, the plaintiff fell on ice and snow which accumulated upon the sidewalk. The facts showed that this accumulation was the result of natural accumulation, rather than an artificial condition created by the city. The court stated that a "mere failure to act does not constitute an affirmative action" as the plaintiff had argued. Thus, under the statute, the city was immune.
Related Issues Regarding "Affirmative Acts" under Minn. Stat. § 466.03, Subd. 4.
What may constitute an affirmative act for the purpose of overriding immunity for snow and ice conditions? (The cases cited in this section overlap the various immunities which may protect the city.)
The primary case involving an affirmative act which overrode the immunity exception under Minn. Stat. § 466.03, Subd. 4 is Robinson v. Hollatz, 374 N.W.2d 300 (Minn. Ct. App. 1985). In Robinson, the plaintiff sued for injuries received in a motor vehicle accident. 374 N.W.2d at 301. The defendant motorist brought a third party action against Dakota County for indemnification following a pre-trial settlement with the plaintiff. Id. The court of appeals reversed the district court's grant of summary judgment on behalf of the county on the issue of whether Minn. Stat. § 466.03, Subd. 4 provided immunity for the county. Id.at 303.
The court held that had the injuries been only from the "usual and natural accumulation of snow and ice on the streets" the immunity exception would apply. Id. However, the county created an "artificial" accumulation of snow by plowing the roads and creating piles "eight to nine feet" high. Robinson, 374 N.W.2d at 301. The piles impaired the view of drivers entering the roadway. Id. This condition constituted an affirmative act such to remove the county's immunity under Minn. Stat. § 466.03, Subd. 4, and gave rise to a duty upon the county to remove these dangerous obstructions. Id. Because the statute did not immunize the county, the case was remanded for trial on the issue of negligence. The court stated the jury should consider numerous factors including "climate, weather conditions, number and availability of county personnel and other circumstances surrounding the accumulation of snow in the median" to determine if the county was negligent. Id.at 303.
Yet, in a subsequent case involving immunity, the court questioned the Robinson decision. See Hennes v. Patterson, 443 N.W.2d 198, 202 (Minn. Ct. App. 1989). The situation in Hennes involved a motor vehicle accident. 443 N.W.2d at 200. Following several days of snow, state plow crews cleared the roadway. Id. However, snow accumulated against a guardrail on the Lafayette Bridge. Id. The plaintiffs were passengers in a car who were injured when the car's driver lost control of the car on the icy road. The car "rocketed" over the accumulated snow, over the guardrail, and plunged to the parking lot 50 feet below. Id.
The passengers sued the state, and won a favorable verdict at the trial court. Hennes, 443 N.W.2d at 201. The state appealed and argued that their motion for JNOV should have been granted based upon the discretionary immunity exception and the exception for removal of ice and snow. Id. At trial, the plaintiffs utilized the decision in Robinson to argue that the state was not immune from liability. Id. However, the court of appeals stated that that decision was "severely undercut, if not impliedly overruled, by the supreme court's ruling" in Holmquist v. State of Minnesota, 425 N.W.2d 230 (Minn. 1988). The supreme court, in Holmquist, had ruled that "the discretionary function may still apply to a hazardous highway condition created by the state." Hennes, 443 N.W.2d at 202.
The Hennes court stated that, based upon the supreme court's decision in Holmquist, it had no choice but to reverse the trial court and grant the state's motion for JNOV because the removal of this snow accumulation involved policy considerations. Id. at 203. Such considerations allowed for discretionary immunity. Id. Moreover, the Robinson decision was held to be factually distinguishable because no evidence was presented in Hennes indicating that the state negligently plowed the roadway of the Lafayette Bridge. Id. The court held that the state "determined that the snow bank was a lesser hazard than not plowing the surface of the traveled portion of the road." Id. Additionally, the state did not remove this snow bank until such time as was adequate due to considerations such as budget, safety, and limited equipment and workers. Id. Thus, the main precedent involving an affirmative act which overrode the immunity exception is questionable.
Additional cases contrast the situation in Robinson. For instance, the court of appeals did not find that Carlton County affirmatively caused dangerous snow and ice conditions where the plaintiff alleged that the county failed to trim trees, post warning signs, and reduce the speed limit on a particular roadway. Koen v. Tschida, 493 N.W.2d 126, 128 (Minn. Ct. App. 1992). While traveling on the roadway, the plaintiffs received injuries as a result of a head-on collision with the defendants. Id. at 127. They sued Carlton County alleging that the failure to perform certain tasks constituted affirmative acts such to remove the county's immunity. Id. The court held that the statute "requires the condition to have been caused by an act, not an omission, of the county." Id. at 128. Failure to perform the tasks alleged to have been negligent did not constitute affirmative acts sufficient to bar immunity. The court distinguished this case from the holding in Robinson where the county actually created the high snow drifts. It stated that Carlton County did not "affirmatively cause the icy conditions by its negligent acts." Id. (emphasis added). Thus, the county was immune from suit.
Additionally, the court found that the immunity exception applied in the Matter of Heirs of Jones, 419 N.W.2d 839, 842 (Minn. Ct. App. 1988). There, a pickup truck driven by the decedent, slide onto the railroad tracks after failed attempts to stop on the slope approaching the tracks. Id. Heirs of the decedent argued that St. Louis County "acted affirmatively to maintain the roadway by plowing and sanding it, yet negligently failed to salt it." Id. These affirmative actions, they argued, allowed the application of the "affirmative cause" exception to immunity. Id.
The court of appeals did not agree. It held that although the county may have averted the slippery condition of the roadway, it did not "affirmatively cause the slipperiness." Jones, 419 N.W.2d at 481. The court stated that if the county's actions were held to constitute affirmative acts, the statutory language would be essentially nullified. Id. Hence, St. Louis County was immune from suit.
In conclusion, courts have applied the affirmative act exception under Minn. Stat. § 466.03, Subd. 4 to snow and ice conditions very narrowly and generally have held municipalities immune unless there has been a specific, affirmative negligent act. The cases suggest this exception has been utilized successfully on only one occasion and that decision is questionable.