
    Carol S. RAYMOND, Trustee FOR the Next-of-Kin of Joseph A. KELLEY, Deceased, et al., Respondents, v. PINE COUNTY SHERIFF'S OFFICE, et al., Appellants.
    A17-1578
    Court of Appeals of Minnesota.
    Filed May 7, 2018
    J. Vincent Stevens, Patrick A. Doran, Miller & Stevens, P.A., Forest Lake, Minnesota (for respondents)
    Joseph J. Langel, Nathan B. Shepherd, Ratwik, Roszak & Maloney, P.A., Minneapolis, Minnesota (for appellants)
    Considered and decided by Johnson, Presiding Judge; Kirk, Judge; and Reilly, Judge.
    JOHNSON, Judge The primary question in this appeal is whether a law-enforcement officer is entitled to official immunity for a claim that the officer was negligent while driving from home to work. The district court concluded that the officer is not entitled to official immunity because he was not performing his official duties while driving to work and did not perform his official duties during the relevant period of time. We agree and, therefore, affirm.
    FACTS
    This wrongful-death case arises from a series of two automobile accidents on interstate highway 35 (I-35) in Chisago County.
    At approximately 5:20 a.m. on November 6, 2013, Joseph Allen Kelley was driving to work in his Ford Ranger pickup truck. It was still dark at the time, and the pavement was wet or icy due to light snowfall overnight. Kelley entered the southbound lanes of I-35 at county highway 10 near the city of Harris. He initially drove in the right lane, behind a Dodge Ram pickup truck. He moved to the left lane to pass it. Soon thereafter, Kelley swerved to avoid a deer carcass that was lying on the pavement in the left lane, near the center line. Kelley lost control of his pickup, which slid on the gravel shoulder and then rolled in the grassy median. Kelley's pickup came to rest in an upright position on the far edge of the median, near the shoulder of the northbound lanes of I-35. Kelley's pickup was facing southeast with its headlights shining across the northbound lanes. During the rollover, Kelley was ejected from his pickup. His body came to rest on the pavement in the left northbound lane of I-35.
    Meanwhile, Richard A. Giese was driving to work in the northbound lanes of I-35. Giese, a licensed police officer, was employed by Pine County as an investigator in the sheriff's office. Giese was driving an unmarked squad car, a 2007 Chevy Impala, which was owned by the county. The county maintained a policy that permitted Giese to drive the county-owned vehicle to and from his home in certain circumstances for work-related reasons. The parties do not dispute that Giese was complying with the county's policy concerning the squad car on that morning.
    Giese entered the northbound lanes of I-35 at state highway 95 near the city of North Branch. He initially drove in the right lane behind a four-door sedan. Giese moved to the left lane to pass the sedan because its driver was driving erratically (by, for example, flashing the headlights between high beams and low beams and by tapping on the brakes). Soon thereafter, Giese saw a stalled vehicle in the median, near his lane of traffic, with its headlights pointed in a southeast direction across the northbound lanes. Giese believed that the stalled vehicle in the median likely had slipped off the pavement and had spun around before stopping there.
    As Giese approached the stalled vehicle, he scanned the area to see if anyone was walking near the vehicle. Giese did not see anyone near the stalled vehicle and continued driving. After he drove past the stalled vehicle's headlights, Giese's own headlights illuminated an object on the pavement in his lane of traffic. He was unable to move to the right lane because the sedan was traveling alongside him. He applied his brakes but did not stop before striking the object. Giese's squad car dragged the object along the pavement for approximately 92 feet. After coming to a stop, Giese activated his emergency lights, backed up, and parked his squad car to protect the scene. Giese then realized that he had struck a person's body. Giese exited the squad car, approached the body, and checked a wrist for a pulse. Giese then checked in and around the stalled vehicle for other passengers, advised onlookers to return to their vehicles, notified dispatch of the situation, and waited for a state trooper and emergency personnel to arrive. Kelley was pronounced dead at the scene.
    In October 2016, Kelley's mother, Carol S. Raymond, commenced this wrongful-death action against Giese and the county on behalf of Kelley's next of kin. Raymond alleges that Giese was negligent and that his negligence caused Kelley's death. Raymond alleges that the county is vicariously liable for Giese's negligence because the county owned the squad car that Giese was driving.
    In his deposition, Giese testified that, as he approached the stalled vehicle, he slowed down to approximately 40 to 50 miles per hour. In contrast, two passengers of the Dodge Ram pickup (which Kelley had attempted to pass and which stopped on a southbound shoulder after Kelley's pickup rolled) testified in depositions that, immediately before and after colliding with Kelley, Giese appeared to be moving at a normal highway speed without having slowed down.
    In June 2017, Giese and the county moved for summary judgment on the grounds that Giese is entitled to official immunity and the county is entitled to vicarious official immunity. In October 2017, the district court issued an order denying the motion. With respect to the issue of official immunity, the district court reasoned as follows:
    Giese did not assume any duties typical of a police officer responding to a motor vehicle accident. For example, Giese did not activate emergency lights to warn other motorists; or stop and check the scene of the accident; or check on the welfare of any occupants of the vehicle in the center median; or radio for emergency medical service or additional law enforcement; or secure the scene so that other motorists would not get injured. At most, Giese's only action was to slow his squad car and take a quick look to see if he saw anyone near the pickup.
    Giese's conduct did not implicate any legal duties as a licensed police officer. Giese was driving to work and did not intend to stop at the accident area. He took no actions typical for a police officer acting in their official capacity in response to an accident. Giese's decision to keep driving and not assume the responsibilities or actions of a police officer in response to a motor vehicle accident was made in his individual decision making capacity. It was not until after he drove his vehicle over Kelley that he assumed his legal duties as a police officer by stopping, turning his emergency lights on, and backing up to secure the scene. Giese's relevant conduct was that of an average citizen, not the conduct of a police officer engaged in official duties. Therefore, the doctrine of official immunity does not apply to bar Plaintiff's claim for negligent wrongful death against him.
    Accordingly, the district court determined that Giese is not entitled to official immunity. The district court also reasoned, "Because Giese is not entitled to official immunity, the Pine County Sheriff's Department is not entitled to vicarious official immunity."
    Giese and the county appeal.
    ISSUES
    I. Is Giese entitled to official immunity for his alleged negligence while driving from home to work?
    II. Is the county entitled to vicarious official immunity?
    ANALYSIS
    Appellants argue that the district court erred by denying their motion for summary judgment. A district court must grant a motion for summary judgment "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. A genuine issue of material fact exists if a rational trier of fact, considering the record as a whole, could find for the nonmoving party. Frieler v. Carlson Mktg. Grp. , 751 N.W.2d 558, 564 (Minn. 2008). This court applies a de novo standard of review to the district court's legal conclusions on summary judgment and views the evidence in the light most favorable to the party against whom summary judgment was granted. Commerce Bank v. West Bend Mut. Ins. Co. , 870 N.W.2d 770, 773 (Minn. 2015).
    I.
    Appellants argue that the district court erred by concluding that Giese is not entitled to official immunity.
    A.
    "Minnesota law recognizes two forms of governmental immunity: statutory immunity and common law official immunity." Kariniemi v. City of Rockford , 882 N.W.2d 593, 599 (Minn. 2016). The common-law doctrine of official immunity provides that, in general, "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." Vassallo ex rel. Brown v. Majeski , 842 N.W.2d 456, 462 (Minn. 2014) (quotation omitted) (alterations in original). The purpose of the official-immunity doctrine is to ensure that "individual government actors [are] able to perform their duties effectively, without fear of personal liability that might inhibit the exercise of their independent judgment." Kariniemi , 882 N.W.2d at 600 (quotation omitted). The official-immunity doctrine serves this purpose by "protect[ing] public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties." Elwood v. Rice County , 423 N.W.2d 671, 678 (Minn. 1988). To determine whether a public official is entitled to official immunity, courts conduct a three-step inquiry into: "(1) the conduct at issue; (2) whether the conduct is discretionary or ministerial ... ; and (3) if discretionary, whether the conduct was willful or malicious." Kariniemi , 882 N.W.2d at 600 (alteration in original) (quoting Vassallo , 842 N.W.2d at 462 ).
    At the first step of the official-immunity analysis, courts identify "the conduct at issue." Kariniemi , 882 N.W.2d at 600. The first step typically is a prelude to the second step, at which point a court determines "whether the conduct is discretionary or ministerial." Id. To ensure that the second step of the official-immunity analysis is accurately performed, the supreme court repeatedly has instructed lower courts that, at the first step, "it is essential to identify the precise governmental conduct at issue." Olson v. Ramsey County , 509 N.W.2d 368, 371 (Minn. 1993) (emphasis added); see also Mumm v. Mornson , 708 N.W.2d 475, 490-91 (Minn. 2006) ; Thompson v. City of Minneapolis , 707 N.W.2d 669, 673-74 (Minn. 2006) ; Sletten v. Ramsey County , 675 N.W.2d 291, 306-07 (Minn. 2004) ; Gleason v. Metro. Council Transit Operations , 582 N.W.2d 216, 219 (Minn. 1998).
    At the second step of the official-immunity analysis, a public official's conduct will be deemed discretionary in nature if it "requires the exercise of individual judgment in carrying out the official's duties." Kari v. City of Maplewood , 582 N.W.2d 921, 923 (Minn. 1998). For example, in Pletan v. Gaines , 494 N.W.2d 38 (Minn. 1992), the supreme court concluded that a police officer's decision to engage in and continue a high-speed chase is discretionary in nature because it "involves the weighing of many factors" that "must be resolved under emergency conditions with little time for reflection and often on the basis of incomplete and confusing information." Id. at 41. The supreme court commented, "It is difficult to think of a situation where the exercise of significant, independent judgment and discretion would be more required." Id. On the other hand, a public official's conduct will be deemed ministerial in nature if it arises from duties that are " 'absolute, certain, and imperative, [and] involv[e] merely execution of a specific duty arising from fixed and designated facts,' " thereby "leaving nothing to the discretion of the official." Kelly v. City of Minneapolis , 598 N.W.2d 657, 664 (Minn. 1999) (alteration in original) (quoting Cook v. Trovatten , 200 Minn. 221, 224, 274 N.W. 165, 167 (1937) ).
    At the third step of the analysis, a public official who engaged in discretionary conduct will be entitled to official immunity, unless his or her conduct was willful or malicious. Kariniemi , 882 N.W.2d at 600 ; Kelly , 598 N.W.2d at 664. The terms "willful" and "malicious" are synonymous in this context, and they mean "the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right." Rico v. State , 472 N.W.2d 100, 107 (Minn. 1991) (quotation omitted). If a public official's conduct is deemed ministerial, a court must determine simply whether the public official violated an "absolute, certain, and imperative" duty. Vassallo , 842 N.W.2d at 462.
    B.
    In this case, the district court determined that Giese is not entitled to official immunity because he was not performing his official duties when he was driving to work and did not assume his official duties before the collision that gave rise to this lawsuit. Appellants contend that the district court erred on the ground that Giese was acting as a public official when he approached the stalled vehicle in the median and that he exercised discretion while driving past the stalled vehicle. Appellants assert that, "Based on his training, professional experience, the perceived seriousness of the situation, and the competing needs for his time presented by other law enforcement activities, Deputy Giese was required to make a series of decisions in a very short amount of time regarding how to respond to the accident." In response, Raymond asserts that it is a "mere coincidence that [Giese] happens to be a detective for a profession" and that the nature of his employment "does not automatically insulate him from bad driving conduct in his personal life."
    To reiterate, at the first step of the official-immunity analysis, "it is essential to identify the precise governmental conduct at issue." Olson , 509 N.W.2d at 371 (emphasis added). The first step of the official-immunity analysis is broad enough to encompass a threshold question: whether the conduct at issue is governmental conduct. To answer that question, a court must ask whether a public official was performing the duties of his or her office when he or she engaged in the conduct that is alleged to be tortious. As stated above, the purpose of the official-immunity doctrine is to "protect public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties," Elwood , 423 N.W.2d at 678, and thereby to ensure that "individual government actors [are] able to perform their duties effectively, without fear of personal liability that might inhibit the exercise of their independent judgment," Kariniemi , 882 N.W.2d at 600 (quotation omitted). Public officials are entitled to official immunity "for their actions in the course of their official duties," but they are not so entitled if they "acted ... outside the parameters of their charged duties." Janklow v. Minnesota Bd. of Exam'rs , 552 N.W.2d 711, 715-16 (Minn. 1996). Accordingly, a public official may be entitled to official immunity only with respect to his or her performance of official duties. If a public official was not performing official duties when he or she engaged in the conduct that is alleged to be tortious, it is unnecessary to consider the second and third parts of the three-part official-immunity analysis.
    A court performs the first step of the official-immunity analysis "by looking at the nature of" a plaintiff's claim. Pletan , 494 N.W.2d at 40. In her complaint, Raymond alleged that Giese was negligent because he did not slow down or stop when he saw a stalled vehicle in the median. In her appellate brief, Raymond asserts that Giese was "negligent when he drove through an obvious accident scene at full speed without using caution [and] by not even slowing down to assess the situation." Given these descriptions of Giese's alleged negligent conduct, the precise conduct at issue is limited to Giese's driving between the moment when he saw a stalled vehicle in the median and the moment when he collided with Kelley.
    The precise conduct at issue also depends on a plaintiff's theory of liability. See Pletan , 494 N.W.2d at 40. Appellants contend that, notwithstanding Raymond's insistence that this is an ordinary traffic-accident case, she actually intends to prove that Giese was negligent because he did not act as a public official should have acted. There is some basis in the record for appellants' contention. For example, in Raymond's complaint, she alleged that, "As a Pine County Investigator, Giese has additional training and experience to help make important decisions when approaching an unusual scene." In another portion of the complaint, Raymond alleged that "Giese has substantial training and experience, as a police officer, that would raise the standard of his conduct in situations such as this." In addition, Raymond retained an accident-reconstruction expert, who issued a written report that is based substantially on Giese's responsibilities as a law-enforcement officer.
    After Giese and the county moved for summary judgment, however, Raymond took a different approach. She argued in her memorandum of law in opposition to the summary-judgment motion that this is "a straightforward auto case" in which the driver "happened to be an off-duty sheriff deputy" but that "standard liability applies to the driver and owner of the vehicle, like any other auto accident." Raymond also argued to the district court that this case "has nothing to do with questioning an officer's professional judgment in the line of duty" and that there should be no " 'immunity bubble' insulating public officials in their personal lives from liability for their own negligent actions."
    
      
      Raymond's complaint cites the following statute as the basis of the county's liability: "Whenever any motor vehicle shall be operated within this state, by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof." Minn. Stat. § 169.09, subd. 5a (2016).
    
   In her responsive appellate brief, Raymond's position is less clear. In one portion of her brief, she states, "This case is about bad driving [but] not about policing." She also states that Giese "was off duty and not performing any duties within the scope of his employment as an investigator" and, thus, "this case has nothing to do with questioning an official's professional judgment in the line of duty." But in another portion of her brief, she argues that "Giese of all people should have realized" that he was approaching "an obvious accident scene" because of "his experience seeing accidents." In addition, she argues that Kelley "would be alive if Giese had pulled over to activate his emergency lights or had secured the scene" before the collision.

After reviewing the record, we acknowledge that the nature of Raymond's claim has not been perfectly clear and consistent throughout the history of the case. We believe that it is appropriate to focus on the memorandum of law that Raymond filed in the district court in opposition to the summary-judgment motion. We are, of course, reviewing the district court's ruling on that motion, and the district court's ruling naturally is based on Raymond's description of her claim in that memorandum. There Raymond argued that "standard liability applies to the driver and the owner of the vehicle, like any other auto accident." Given that argument, we assume that Raymond intends to prove that Giese was negligent only because he breached the standard of care that applies to all motorists-" 'the standard of care to be expected from a reasonably prudent person under similar circumstances.' " See Gruenhagen v. Brelje , 252 Minn. 203, 206, 89 N.W.2d 738, 741 (1958) (quoting Schubitzke v. Minneapolis, St. Paul & Sault Ste. Marie R.R. , 244 Minn. 156, 160, 69 N.W.2d 104, 107 (1955) ); see also Berg v. Nelson , 559 N.W.2d 722, 724 (Minn. App. 1997), review denied (Minn. May 13, 1997).

So long as Raymond confines her claim to that theory, Giese may not invoke the doctrine of official immunity because he was not performing his official duties when he engaged in the conduct that Raymond alleges was negligent. During the relevant period of time, Giese was driving from his home in Chisago County to Pine County with the intention of going to work. When Giese saw a stalled vehicle in the median, he perceived that the vehicle had slipped off the road into the median in a "spin-out" and had come to rest at the edge of the left northbound lane of traffic. Based on that perception, Giese did not take any particular action as a public official, such as stopping near the stalled vehicle to check on the welfare of its driver or occupants. He testified in his deposition that he took no action as a public official because spin-outs are fairly common on Minnesota roads in wintertime, because it did not appear that anyone was injured or in need of emergency assistance, and because the vehicle was located in Chisago County, which is not the county where he was a public official. Moments later, Giese saw an object on the roadway in his lane of traffic and collided with it. These undisputed facts demonstrate that Giese was not performing the duties of his public office when he engaged in the conduct that Raymond alleges was negligent. Because Giese was not performing any official duties, the doctrine of official immunity is not necessary to "protect [him] from the fear of personal liability that might deter independent action and impair effective performance of [his] duties," Elwood , 423 N.W.2d at 678, or to ensure that he is "able to perform [his] duties effectively, without fear of personal liability that might inhibit the exercise of [his] independent judgment," Kariniemi , 882 N.W.2d at 600. Accordingly, Giese may not invoke the doctrine of official immunity in response to Raymond's claim that he breached the standard of care of a reasonably prudent person under similar circumstances. Thus, we need not consider the second and third parts of the three-part official-immunity analysis.

In sum, given Raymond's theory of the case during district court proceedings, the district court did not err by denying the summary-judgment motion with respect to Giese because the district court correctly concluded that Giese is not entitled to official immunity.

II.

Appellants argue that the district court erred by concluding that the county is not entitled to vicarious official immunity.

The doctrine of vicarious official immunity protects the state or a political subdivision from liability based on the conduct of an employee who is protected by the doctrine of official immunity. Wiederholt v. City of Minneapolis , 581 N.W.2d 312, 316 (Minn. 1998). "In general, when a public official is found to be immune from suit on a particular issue, his government employer will enjoy vicarious official immunity from a suit arising from the employee's conduct." Schroeder v. St. Louis County , 708 N.W.2d 497, 508 (Minn. 2006). Allowing a governmental employer to receive the protection of vicarious official immunity avoids the situation in which the employer's " 'officials' performance would be hindered as a result of the officials second-guessing themselves when making decisions, in anticipation that their government employer would also sustain liability as a result of their actions.'" Id. (quoting Anderson v. Anoka Hennepin Indep. Sch. Dist. 11 , 678 N.W.2d 651, 664 (Minn. 2004) ). But if a public official is not entitled to official immunity, the public official's employer is not entitled to vicarious official immunity. Anderson , 678 N.W.2d at 664 ; Pletan , 494 N.W.2d at 42-43.

In this case, the county argued to the district court that it is entitled to vicarious official immunity. The district court concluded that the county is not entitled to vicarious official immunity because Giese is not entitled to official immunity. On appeal, the county renews its argument that it is entitled to vicarious official immunity. Raymond does not respond directly to the county's argument. But she states in her responsive brief that "Pine County has vicarious liability in this case merely as an owner of the vehicle pursuant to Minn. Stat. § 169.09, subd. 5(a) (not as employer)." She also states that "Giese was off duty and not performing any duties within the scope of his employment." Her latter statement is consistent with the fact that Raymond does not allege that the county should be vicariously liable on the ground that it was Giese's employer. See Minn. Stat. § 466.02 (2016) (imposing liability on municipalities for torts "of its officers, employees and agents acting within the scope of their employment or duties").

In light of Raymond's theory of liability with respect to the county, it appears unnecessary to resolve the county's argument that it is entitled to vicarious official immunity. Nonetheless, if we were to consider it, we would conclude that the county is not entitled to vicarious official immunity because Giese is not entitled to official immunity.

Thus, the district court did not err by denying the summary-judgment motion with respect to the county because the district court correctly concluded that the county is not entitled to vicarious official immunity.

DECISION

Giese is not entitled to official immunity because he was not performing his official duties when he engaged in the conduct that Raymond alleges was negligent. Pine County is not entitled to vicarious official immunity. Therefore, the district court did not err by denying appellants' motion for summary judgment.

Affirmed. 
      
      We note, however, that a different analysis would be necessary if Raymond were to expand or alter her theory of the case at trial. For example, if Raymond were to seek to prove that Giese was negligent because he did not perform his official duties before colliding with Kelley or did not utilize his law-enforcement training and experience (as hinted in Raymond's appellate brief), Giese then may invoke the doctrine of official immunity. A theory of liability that is based on a public official's discretionary decision about whether to perform official duties is just as deserving of protection as a public official's decision about how to perform official duties. See Vassallo , 842 N.W.2d at 462 ("Official immunity can apply to any act that involves an exercise of independent judgment...."). In Pletan , the supreme court concluded that a police officer was entitled to official immunity for both his "decision to engage in a car chase" and his decision "to continue vehicular pursuit." 494 N.W.2d at 41. Official immunity also may extend to a discretionary decision not to take action pursuant to official duties. For example, in S.L.D. v. Kranz , 498 N.W.2d 47 (Minn. App. 1993), this court concluded that county social workers were entitled to official immunity for their collective decision not to investigate an incomplete report of child abuse. Id. at 52-53. Accordingly, a public official may be entitled to official immunity when he or she is making a decision about whether to perform his or her official duties. If Raymond were to expand or alter her theory of the case, and if Giese then were to invoke the doctrine of official immunity, it would be necessary for the district court to conduct all three steps of the official-immunity analysis.
     
      
      The county did not argue to the district court that it is immune from a claim based on section 169.09, subdivision 5(a). Accordingly, that statute is not at issue on appeal.
     