Opinion
Court File No. C3-06-1947
1-12-2007
Kevin and Susan Gjertsen, Plaintiff, v. City of Cottage Grove and Allied Blacktop Company, Defendants.
Pamela Rochlin, Esq., appeared for the Plaintiff. Ryan Zipf, Esq., appeared for the Defendant City of Cottage Grove. Mark Fredrickson, Esq., appeared for Defendant Allied Blacktop Company.
Defendants the City of Cottage Grove and Allied Blacktop Company have moved for summary judgment on multiple grounds.
The Court, having heard the arguments of counsel and considered all of the facts, pleadings, records, memoranda of law and other proceedings herein, makes the following:
FINDINGS OF FACT
1. This case arises out of a bicycle crash in Cottage Grove on August 5, 2005. Mr. Gjertsen cycles as part of required physical training in his job as a special agent criminal investigator for the Department of Defense. He has been riding seriously for the past 9 years. At approximately 6:30 a.m., Plaintiff Kevin Gjertsen was riding his road bike south on County Road 19, preparing to make a left turn on East Point Douglas Road. This area is thinly populated and semi-rural. Mr. Gjertsen regularly rode in this area and so he was generally familiar with the roadways and their conditions.
Southbound County Road 19, near its intersection with East Point Douglas Road, is a long, gradual downhill. Mr. Gjertsen estimated he was traveling 30 m.p.h. down this hill. As he approached the intersection he moved from the right shoulder towards the center lane to begin his turn. As the area was free of traffic, he leaned into the turn. As he made his turn he noticed the surface of East Point Douglas Road was gray in color, darker than the blacktop he was riding on. He then realized the surface was gravel, but it was too late to take any evasive maneuvers. His thin tires hit the gravel, whereupon he lost control and crashed to the ground, sustaining some injuries.
2. The loose gravel was part of the city's routine maintenance program of seal coating roads. Allied Blacktop was the contractor for the project. The contract provided, in part:
Traffic Control. The Contractor (Allied) shall furnish all barricades and warning signs required by the contract, and any other barricades or warning signs deemed necessary by the Director. The Contractor shall erect and maintain those barricades and signs at locations determined by the Director.
In August 2005 a preconstruction meeting was held at the Public Works Department, with the following individuals attending:
Les Burshten — City of Cottage Grove Works Director
Gary Orloff — City of Cottage Grove Streets Foreman
Al Larson — City of Cottage Grove Engineering Department
Pete Capistrant — Vice President of Allied Blacktop
The parties discussed placement of warning signs. Mssrs Burshten and Orloff directed Allied to place "Loose Gravel" signs near the entrance of the seal coated street (East Point Douglas Road) and marked these positions in red on a map. One was placed in the northeast corner of the intersection for traffic entering westbound East Point Douglas Road and another on the south side of East Point Douglas Road for traffic traveling east (the direction Mr. Gjertsen was traveling). Burshten and Orloff did not direct Allied to place "Loose Gravel" signs on non-seal coated roads, such as County Road 19.
Mr. Burshten testified that it was the city's "protocol" to place warning signs at the entrance to seal-coated roads, but not any signs on non-seal coated roads near those entrances. (Burshten Depo. p.58-60). Burshten and Orloff identified several reasons for this protocol. First, there are concerns over sign pollution or confusing drivers when the condition is not on that road. (Id. at p. 105-06, Orloff Depo. p. 45-46). Secondly, both cited line-of-sight considerations — that the signs are placed at the entrance of the seal-coated road in order to be visible from all directions entering the road. Also, the signs are not placed too close to the intersection because that may interfere with the sight lines off drivers coming off the seal-coated road and who are checking the cross street for traffic. (Orloff Depo. p. 24-26, Burshten Depo p. 70-71, 105-107).
Mr. Orloff inspected Allied's placement of the "Loose Gravel" signs at the start of the seal coating project and determined that the specific conditions of the site were consistent with the rationale of the protocol, such that that no additional signs were needed on County Road 19. (Orloff Depo. p. 45-46). He concluded that Allied had placed the signs in the proper place and did not direct them to move it.
3. Plaintiff asserts a claim of Failure to Warn of a Dangerous Condition — that advance warning signs were not placed on County Road 19 in accordance with the Minnesota Manual on Uniform Traffic Control Devices. The court finds that the MMUTCD sections dealing with Loose Gravel Advance Warning Signs are not mandatory and not controlling to the issue of whether the City's protocol is entitled to statutory immunity.
CONCLUSIONS OF LAW
1. SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law. Minn. R. Civ. P. 56.03. Summary judgment is proper only where there is no genuine issue of material fact in dispute and where a determination of the applicable law will resolve the controversy. Gaspord v. Washington County Planning Commission, 252 N.W.2d 590, 590 (Minn. 1977). The trial court is not to decide factual issues on a motion for summary judgment but rather determine whether any fact issues exist. Johnson v. State, 478 N.W.2d 769, 771 (Minn. Ct. App. 1991). Summary judgment is ordinarily denied when issues of fact are outstanding or when issues of law run against the moving party. F. & H. Investment Co. v. Sachman-Gilliland Corp., 232 N.W.2d 769, 772 (Minn. 1975). The party moving for summary judgment has the burden of proof and inferences must be resolved against that party. McDonough v. City of Rosemount, 503 N.W.2d 493, 496 (Minn. Ct. App. 1993). However, no genuine issues of material fact exist when the record, taken as a whole, could not lead a rational fact finder to find for the nonmoving party. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).
2. Both Defendants argue that the City's protocol, and the pursuant signage decisions reached here by Mssrs Burshten and Orloff, are protected by statutory immunity.
Under the doctrine of statutory immunity, often referred to as discretionary immunity, municipalities are immune from liability for claims "based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Minn.Stat. § 466.03, subd. 6 (2006). This is an exception to the general rule that "every 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 whether arising out of a governmental or proprietary function." Minn.Stat. § 466.02 (2006).
Discretionary conduct is characterized by planning-level actions that require evaluation of such factors as the financial, political, economic, and social effects of a given course of action. Holmquist v. State, 425 N.W.2d 230, 232 (Minn.1988). Immunity protects government conduct that "involves the balancing of public policy considerations in the formulation of policy." Id. at 234. McEwen v. Burlington N. R.R. Co., 494 N.W.2d 313, 317 (Minn.App.1993) (stating decision to delay repainting of road markings after repairs to road was protected because of balancing of limited resources and safety concerns), review denied (Minn. Feb. 25, 1993).
"Warning of hazards by placing signs is not inherently either discretionary or operational; classification depends on the factors considered in making the decision." Christensen v. Mower County, 587 N.W.2d 305, 307 (Minn.App.1998) (citing Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn.1994); Holmquist, 425 N.W.2d at 234).
The first step in analyzing a claim of immunity is to ascertain exactly what governmental conduct is being challenged. Steinke, 525 N.W.2d at 175.
Here, Plaintiff challenges the City's standing protocol not to place warning signs on non-seal coated roads. He asserts that warning signs should have been placed on County Road 19, which would warn motorists, and bicyclists, in advance that loose gravel would be encountered if turning onto East Douglas Point Road. The locations for signs that were in fact placed at the entrance were chosen based on the specific conditions of the site, but the decision not to place signs on County Road 19 was simply made under the standing protocol. In this way, Plaintiffs are not challenging an individual signing decision, but rather Cottage Grove's established signage policy not to place warning signs on non-seal coated roads. In this instance the court believes "protocol" and "policy" are interchangeable.
A governmental unit's statutory immunity is not contingent on whether a policy has been reduced to writing. See Bloss, v. Univ. of Minn. Bd. of Regents, 590 N.W.2d 661, 667 (Minn.App.1999).
The question then becomes whether this protocol, or policy, involved balancing policy factors and is therefore discretionary, deserved of protection.
Where a government employee simply implements an established policy, the conduct may be protected by statutory immunity because the challenge is, in effect, to the policy itself. See Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 412-13 (Minn.1996). Adopting or forming a policy on road signage is discretionary if it involves balancing policy factors. Zank v. Larson, 552 N.W.2d 719, 722 (Minn.1996).
The typical policy considerations are financial, political, economic, and social. The terms financial and economic are nearly synonymous, essentially referring to cost considerations and cost-benefit analyses. There is nothing in the record here that would suggest cost was a factor in this policy. The term "political" is inapplicable. Citing "social" considerations can be broad and versatile.
Safety has also been recognized as a balanced policy objective that may protect a government's road maintenance and inspection procedures. Minder v. Anoka County, 677 N.W.2d 479, 484 (Minn. App. 2004) (citing Gerber v. Neveaux, 578 N.W.2d 399, 403 (Minn.App.1998), review denied (Minn. July 16, 1998); Berg v. Hubbard County, 578 N.W.2d 12, 15 (Minn.App.1998), review denied (Minn. July 16, 1998); Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn.App.1995)).
The stated reasons for the City's protocol — sign pollution or confusion — evince a balancing of safety considerations for road users traveling on a road to which an intersecting road is covered by loose gravel. On the one hand, there is the concern that the overuse of signs dilutes attention, so that the truly important signs are not fully, or timely, appreciated among the less important ones. Attentive drivers who constantly scan are able to quickly process all signs, distinguish which ones apply to them, and adjust their driving conduct accordingly. However, drivers who are below average in terms of attentiveness or perception may be adversely affected by sign pollution, missing the more important signs. A second concern is sign confusion. "Loose Gravel" signs (even with arrows indicating right or left) which are placed on roads without loose gravel have the potential to momentarily confuse some drivers. They may read the sign as meaning loose gravel is on their road, and overreact in some way. Both sign pollution and sign confusion concerns must necessarily be weighed in light of the perceived necessity of the sign. If a sign is judged truly necessary, or important, then its intended safety benefit clearly outweighs pollution or confusion problems. The rationale behind the City's protocol not to post loose gravel signs on non-seal coated roads is based on a low perceived necessity of those signs, in part because the gravel is a different color, and therefore visible, and because signs posted at the entrance to seal coated roads are believed to provide adequate warning. As such the protocol expresses the belief that the benefit of these signs is outweighed by competing safety concerns — contributing to the overall problem of sign pollution and potentially confusing some drivers.
This is a calculation with which many may disagree, but it does evaluate and weigh safety considerations, which is a recognized policy factor. Because the City's signage protocol involved balancing policy factors, the court finds it is discretionary and entitled to statutory immunity.
3. Allied Blacktop argues that statutory immunity should be extended to protect their actions, as an agent of the City, in executing the signage policy.
Statutory immunity protects actions of an agent implementing policy if the claim of negligence attacks the policy itself. In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 548 (Minn.App.1997).
Employee, officer, or agent means a present or former employee, officer, or agent of a municipality or other person acting on behalf of the municipality in an official capacity, temporary or permanent, with or without compensation. Minn.Stat. § 466.01, subd. 6. It does not include an independent contractor. Id.
The contract between the City and Allied Blacktop for the seal coating project termed Allied an Independent Contractor, and Allied is referred to as "Contractor" throughout the contract. However, the inquiry should not end there.
The label which the contract attaches to the employment relationship is not solely determinative, rather the court should look primarily to the conduct of the parties operating under the contract. Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 677 (Minn.1977) (citing Barnes v. Northwest Airlines, Inc., 233 Minn. 410, 47 N.W.2d 180 (1951); Gill v. Northwest Airlines, Inc., 228 Minn. 164, 36 N.W.2d 785 (1949)).
The right to control the means and manner of performance is the most important factor in determining whether a party is an independent contractor. Ossenfort, 254 N.W.2d at 676.
Clearly, Allied retained a significant degree of latitude over the means and manner of the actual seal coating process — the core of the contract. However, with respect to signage, the contract precisely prescribes that Allied will place warning signs "at locations determined by the Director", and that is in fact how the parties conducted themselves under the contract. Allied did not retain control over the means and manner of signage, but merely acted at the specific direction of Les Burshten and Gary Orloff.
While Allied's general relationship to the City may be fairly characterized as Independent Contractor, the court finds that with respect to signage, Allied acted as the City's agent in implementing the City's protocol. Therefore, statutory immunity should be extended to Allied Blacktop.
Based on these conclusions regarding statutory immunity, the court declines to reach the argued alternative grounds for summary judgment.
ORDER
1. Defendant City of Cottage Grove's Motion for Summary Judgment based on Statutory Immunity is GRANTED. All Plaintiff's claims against the City are DISMISSED with prejudice.
2. Defendant Allied Blacktop's Motion for Summary Judgment based on Statutory Immunity is GRANTED. All Plaintiffs claims against Allied Blacktop Company are DISMISSED with prejudice.
3. The Washington County Court Administrator shall serve a true and correct copy of this Order by U.S. Mail upon counsel for the above-named parties. Such mailing shall constitute due and proper service of this Order for all purposes.