2014 MDLA Trial Techniques Seminar: Understanding Governmental Immunities
Scenario #1 – Accident Involving Snow Plow
Defendant City’s snow plow, while plowing snow, slides down a hill and through an intersection
controlled with four-way stop signs. The snow plow, plaintiff’s vehicle and defendant #2’s
vehicle all collide in the intersection. Before the accident, the snow plow was traveling
eastbound, the plaintiff was traveling northbound, and defendant #2 was traveling westbound.
All three vehicles arrived at the intersection at approximately the same time. Plaintiff stopped
briefly at the stop sign but had difficulty seeing other vehicles because all of his windows were
about 75% frost covered. Defendant #2 saw the plow facing him and plowing the other side of
the road and noticed that the plow appeared to be plowing straight through the intersection
without stopping and without using turn signals. Observing that plaintiff’s car could not enter the
intersection until the snowplow cleared the intersection, defendant #2 made a rolling stop and
entered the intersection.
During the course of plowing the intersection, the plow driver saw plaintiff pull out right in front
of him. He tried to brake, but the back end of the plow started sliding on the ice. The plow
collided with the vehicle driven by defendant #2, pushing defendant #2’s vehicle into plaintiff’s
vehicle. Plaintiff claims that because he was at the intersection before both the plow and
defendant #2, and because defendant #2 was to his left, both vehicles failed to yield right of way
to him. The City argues that all claims are barred by snow and ice immunity, statutory
discretionary immunity, and common law official immunity because (1) the accident arose from
the snow and ice conditions on the street; (2) the plow driver was following a city policy that
permits plow drivers to continue plowing through controlled intersections without stopping;
and/or (3) the plow operator was exercising his discretion and professional judgment in the
manner in which he was plowing the street at the time of the accident. The City also claims that
its driver is exempt from obeying stop signs pursuant to Minn. Stat. §169.035. Defendant #2
claims that but for plaintiff’s negligence, specifically pulling right out in front of both him
because his windows were frosted over, both him and the plow would have safely cleared the
intersection.
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Scenario #2 – Personal Injury at Park
Plaintiff, a minor child who is not supervised by an adult, sustains a severe closed head injury
while climbing on and falling off of monkey bars located in a City park next to a City beach.
The monkey bars were manufactured 12 years and installed 10 years before the date of the
accident.
Plaintiff sues the City, the manufacturer of the monkey bars (defendant #2), and the installer of
the monkey bars (defendant #3). Defendants #2 and #3 agree to hire you to defend both of them.
Plaintiff claims that the monkey bars were negligently designed, manufactured, and constructed
because (1) the metal bars are not slip resistant when wet; (2) the monkey bars are too high; and
(3) there is insufficient impact absorption material underneath them. Plaintiff also claims that
the monkey bars should not have been installed so close to the beach because the City and/or
installer should have anticipated that children, still wet from swimming, would climb them, fall,
and get hurt. Prior to this accident, there is no history of other similar accidents.
The City argues that all claims are barred by parks and recreation immunity, statutory
discretionary immunity, and common law official immunity because (1) the plaintiff’s injury
arose from use of the City’s park/recreational space; (2) the City has adopted a policy for
inspecting and repairing park equipment; and/or (3) City employees exercised their discretion
and professional judgment in inspecting park equipment and determining what constituted safety
hazards. The other defendants argue that the improvement-to-real-property statute of limitations
bars plaintiff’s claims.
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Scenario #3 – Auto Accident Involving Police Squad Car
An auto collision occurs between a City squad car operated by City Officer Smith, plaintiff’s
vehicle, and defendant #2’s vehicle. At the time of the accident, Officer Smith was responding
to an emergency involving a call of a domestic disturbance involving a potential weapon.
Officer Smith had activated her emergency lights, but deliberately had not activated her sirens
because she did not want to alert the suspect to her approach. Officer Smith traveled
northbound, and as she approached a red light, she observed that traffic from all directions was
yielding to her. (The light did not have a Opticom or similar device, which allows a squad car to
change the light.) Officer Smith slowed down to approximately 40 miles per hour, drove around
some vehicles that had partially moved to the side of the street, and proceeded through the
intersection. Defendant #2, who was traveling westbound through the intersection, did not see
Officer Smith’s lights and proceeded through the intersection. While Officer Smith attempted to
swerve to avoid Defendant #2’s vehicle, she collided with the vehicle (on the rear of the driver’s
side). Defendant #2’s vehicle spun and collided with the vehicle operated by Plaintiff. Plaintiff,
Defendant #2, and Officer Smith sustained injuries.
Plaintiff sues the City and Defendant #2. Plaintiff alleges that Officer Smith should have also
activated her sirens and should have stopped or proceeded more slowly through the intersection.
Plaintiff also claims that there was not an emergency that warranted Officer Smith’s conduct as it
turned out that there was no weapon involved. Plaintiff alleges that Defendant #2 was negligent
because he should have seen and yielded to Officer Smith’s vehicle.
The City argues that all claims are barred by statutory immunity and common law official
immunity because (1) the City has adopted an emergency response policy that grants police
officers discretion in responding to emergency calls; and (2) Officer Smith exercised discretion
and professional judgment in responding to the call.
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Discussion
(Assume you are representing the non-government defendant.)
1. What are some common defenses for the defendants (government and non-government)?
2. Should you engage in immunity-based discovery with the government co-defendant?
a. Do you want to discover facts that will help you defeat the City’s immunity
claims?
b. Will discovery of these facts help, harm, or have no effect on your ability to
defend against plaintiff’s negligence claims?
3. Do you oppose the City’s immunity-based summary judgment motion? Why? Why not?
a. What are the advantages and disadvantages of the City remaining a defendant
through ADR?
b. What are the advantages and disadvantages of the City remaining a defendant
through trial?
c. Are your interests and the City’s interests on liability aligned? Specifically, is the
City in a better position to prove your client’s fault than plaintiff?
d. Are you better off at trial if the comparative fault determination is made with or
without the City as a defendant?
e. What are the advantages and disadvantages to having the City along for the ride?
f. Can the City’s fault/negligence be submitted to the jury even if it is immune from
liability for that negligence?
4. How does interlocutory appeal on immunity affect your case?
a. How does interlocutory appeal affect timing??
b. How does interlocutory appeal affect discovery, depositions, ADR, and/or
prejudgment interest?
c. Can you get the court of appeals to consider your related, factually-intertwined,
but non-immunity-related summary judgment issues?
d. How will final resolution of immunity affect your ability to win and/or clarify the
issues for trial?
5.
Does immunity confer a benefit to the City or its employees in pursuit of their claims for
damages?
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