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This opinion willbe unpublished and

may not becited except as provided by

Minn. Stat. §480A.08, subd. 3 (2002).

IN COURT OFAPPEALS

Ashley Gross, a minor,

by Teresa Gray, her parent andnatural guardian, and

Teresa Gray, individually,
Appellants,
vs.
Fred Miles Thompson, Defendant,

Darnell Breedlove, et al.,
Respondents,
City of Minneapolis Police Department, et al.,
Respondents.

Affirmed

Hennepin County District Court

File No. PI00017136

Mark D. Streed, Meshbesher & Spence, Ltd., 8360City Centre Drive, Suite 100, Woodbury, MN 55125 (for appellants)

Brian A. Wood, William L. Davidson, Lind, Jensen,Sullivan & Peterson, 150 South Fifth Street, Suite 1700, Minneapolis,MN 55402 (for respondents DarnellBreedlove and Juanita Breedlove)

Jay M. Heffern, Minneapolis City Attorney, TimothyS. Skarda, Assistant City Attorney, 333 South Seventh Street, Suite 300,Minneapolis, MN 55402 (for respondentsCity of Minneapolis and Officer Florell)

Considered and decided by Wright, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.

WRIGHT, Judge

In this personal-injurylawsuit arising out of a vehicular police pursuit, appellant challenges thedistrict court’s summary judgment in favor of respondents, a police officer,the Minneapolis Police Department, the City of Minneapolis, the driver of thevehicle in which appellant was riding, and the vehicle’s owner. We affirm.

On December 13, 1994,appellant Theresa Gray and her two-month-old daughter, Ashley Gross, visitedthe home of Darnell Breedlove’s mother. At the conclusion of the visit, Breedlove borrowed his mother’s car togive Gray and her daughter a ride home. While en route, Breedlove agreed to stop at a convenience store forGray. Driving under the speed limitbecause the streets were slippery, Breedlove proceeded seven or eight blocksuntil he arrived at the intersection of Penn Avenue North and Golden ValleyRoad.

At approximately the same time, Minneapolis PoliceOfficer Florell was driving his partner, Officer Lauridsen, back to the fourthprecinct. Traffic was light, and,although it was not snowing, the streets were snow-packed. The officers noticed a vehicle driving westwith its high beams on. Based on theirprofessional judgment and experience, they suspected that the vehicle wasstolen, although it had not been reported as such.[1] The vehicle was also swerving from side toside, narrowly missing the right-hand curb at some points. The officers followed the vehicle as itturned, without signaling, from Penn Avenue onto 16th Avenue. The officers continued to follow the vehicleinto an alley, and Lauridsen told the dispatcher of the officers’ intention tomake a traffic stop.

About one-third of the wayinto the alley, Florell turned on the police car’s flashing red lights. The suspect vehicle failed to pull over andcontinued down the alley. When thevehicle turned out of the alley, Florell turned on the police car’s siren andaccelerated after it. The vehicle thensped through a red light on Penn Avenue. At that point, Florell turned on the police car’s siren and acceleratedafter the vehicle. The officersaccelerated to about 40 miles per hour and followed about half a block behindthe vehicle, but soon gave up the chase because the street was so slippery thatFlorell feared they were going to crash. Florell then turned the siren off but kept the flashing red lightson. As the officers crested a slighthill on Penn Avenue between 17th and 18th Avenues, the officers were approximatelytwo blocks from the vehicle and could see it speed through a red light at theintersection of Penn Avenue North and Golden Valley Road.

Breedlove was drivingthrough the intersection at the same time and was struck by the suspectvehicle. Vernon Patterson, anindependent witness, was crossing the street at the time of the collision andhad to run to avoid getting hit. Helater testified that Breedlove had no time to prevent the collision and thateven “[i]f [Breedlove] had gunned it to try to move it out of the way,[Breedlove] still would have [been] hit.”

When the officers arrived atthe scene, Fred Thompson, the driver of the suspect vehicle, and his passengerwere getting out of the car and fleeing on foot. Lauridsen dispatched an ambulance to the scene, then chasedThompson and found him hiding under a car a few blocks away. Florell remained at the accident scene withBreedlove and his passengers.

Breedlove’s vehicle had beenbroadsided by Thompson and crashed into a building on the corner. Breedlove and Gray were pinned in thecar. Gray’s infant daughter had beenthrown from the car.Gray andher daughter suffered severe injuries.

Gray filed suit, alleging that (1) Florell engaged innegligent and reckless conduct by pursuing Thompson in a high-speed chase in aresidential neighborhood and (2) Breedlove drove in a negligent manner. Respondents Florell, the Minneapolis PoliceDepartment, the City of Minneapolis (Minneapolis respondents, collectively),Breedlove, and Breedlove’s mother filed motions for summary judgment, which thedistrict court granted. This appealfollowed.

On appeal from summaryjudgment, this court asks whether there are any genuine issues of material factand whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2,4 (Minn. 1990). No genuine issue ofmaterial fact exists “[w]here the record taken as a whole could not lead arational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69(Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co.v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356(1986)). “[T]he party resisting summaryjudgment must do more than rest on mere averments.” Id. at 71. Agenuine issue for trial must be established by substantial evidence. Id. at 69-70. This court views the evidence in the lightmost favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761(Minn. 1993). This party must producespecific facts that create an issue for trial. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845,848 (Minn. 1995). Summary judgment isappropriate when a party fails to make a showing sufficient to establish theexistence of an element essential to the party’s case. Bersch v. Rgnonti & Assocs., Inc.,584 N.W.2d 783, 786 (Minn. App. 1998), review denied (Minn. Dec. 15,1998).

I.

Official immunity is acommon-law doctrine protecting government officials “from suit fordiscretionary actions taken in the course of their official duties.” Kari v. City of Maplewood, 582 N.W.2d921, 923 (Minn. 1998) (citation omitted).

Official immunity involves the kind of discretion whichis exercised on an operational rather than a policymaking level, and itrequires something more than the performance of “ministerial” duties.

Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn.1992). Official immunity encouragespublic officials to exercise care in “performing duties that require little orno independent judgment” without deterring them from exercising their judgmentwhen making required decisions. S.L.D.v. Kranz, 498 N.W.2d 47, 50 (Minn. App. 1993). Official immunity has been found to apply to a police officer’sdecision “to engage in and to continue vehicular pursuit of fleeing criminalsuspects.” Pletan, 494 N.W.2d at41 (affirming official immunity where shoplifter, pursued by police officers,ran three red lights, collided with two cars, and struck and killed child walkingthrough intersection).

[A] public official chargedby law with duties which call for the exercise of his judgment or discretion isnot personally liable to an individual for damages unless he is guilty of awillful or malicious wrong.

Speed Dating Over 40 Golden Valley Minnesota Weather

Elwood, 423 N.W.2d at 677(quotingSusla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)). Determining whether official immunityapplies in a given context requires a two-step inquiry to determine (1) whetherthe alleged acts are discretionary or ministerial and (2) whether the allegedacts, while entitled to official immunity, were malicious or willful and,therefore, stripped of the immunity’s protection. Dokman v. County of Hennepin, 637 N.W.2d 286, 296 (Minn.App. 2001). The question of malice isan “objective inquiry into the legal reasonableness of an official’sactions.” State by Beaulieu v. Cityof Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). In determining whether an official has committed a maliciouswrong, we consider whether the official has intentionally committed an act thathe or she had reason to believe is prohibited. Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991).

Here, the parties agree that thefirst step of the two-step inquiry has been satisfied. It is uncontested that Florell’s actionswere discretionary. But Gray arguesthat the district court erred in granting summary judgment in favor of theMinneapolis respondents, because Florell acted willfully or maliciously inpursuing Thompson. Gray argues thatFlorell knew or should have known that pursuing Thompson violated the policy onpursuit set forth in the Minneapolis Police Department manual (MPD manual),because initiating pursuit was an unwarranted risk to public safety in light ofthe road conditions and the minor traffic offenses — using high beams withincity limits, failure to signal intentions, and failure to stop at a red light —that Thompson committed.

According to the MPD manual,officers shall not initiate or continue a pursuit when “risks due to weather,road conditions, vehicle and/or pedestrian traffic * * * outweigh the necessityto immediately arrest the suspect.” TheMPD manual also requires an officer to weigh the seriousness of the offenseagainst the potential risk to the public and to themselves when determiningwhether to initiate or continue a pursuit.

The uncontraverted evidence establishes thatFlorell began pursuing Thompson for suspected car theft, not the minor trafficviolations that Gray identifies. Further, when Florell initiated the pursuit, the temperature was about25 degrees, it was not snowing, and the traffic was light. Florell soon realized that the street wastoo slippery and discontinued the pursuit to avoid an accident. Viewed in the light most favorable to Gray,the record does not present a factual dispute as to whether Florell’s actionswere in compliance with the MPD manual. When Florell decided to pursue Thompson, Florell perceived theconditions to be safe. When hedetermined that, due to road conditions, the risks involved in continuing thepursuit outweighed the necessity of immediately arresting Thompson, Florelldiscontinued the pursuit. The recorddoes not support Gray’s allegations that Florell acted willfully ormaliciously. We, therefore, concludethat there is no genuine issue of material fact in dispute. The district court did not err in concludingas a matter of law that Florell’s actions were protected by official immunity.

II.

Because Florell’s actionsare protected by official immunity, we hold that official immunity extends tothe City of Minneapolis and the Minneapolis Police Department. Generally, if an employee is found to haveofficial immunity, the employer is vicariously immune. Wiederholt v. City of Minneapolis,581 N.W.2d 312, 316 (Minn. 1998). Thecity vicariously enjoys the official immunity conferred on its employees wherethe threat of liability against the city would undermine the purposes ofofficial immunity. Pletan, 494N.W.2d at 42; S.L.D. 498 N.W.2d at 51.

In Pletan, an officerwas protected by official immunity after a shoplifter, pursued by the officer,struck and killed a seven-year-old boy. The Minnesota Supreme Court held thatthe officer’s immunity extended to the city, reasoning that

[i]f vicarious officialimmunity does not apply, the conduct of the immunized police officer must stillbe reviewed in order to impose liability on the employer. But then the purpose of official immunity,which is to shield an officer’s exercise of independent judgment from civiladjudication, is, as a practical matter, defeated. Police officers may justifiably think their own employmentperformance is being evaluated and consequently may decline to engage inpursuit when pursuit is indicated. Itwould seem, too, if criminals get the impression that by speeding away they candiscourage pursuit, they will act on that impression and speed away.

Pletan, 494 N.W.2d at 42.

In light of our ruling that Florell is entitled toofficial immunity, we conclude that the district court correctly determinedthat vicarious official immunity applies to the Minneapolis Police Departmentand the City of Minneapolis.

III.

Gray next argues that the district court erred ingranting summary judgment in favor of Breedlove, because a disputed factremains as to whether Breedlove breached a common-law duty of care when hefailed to notice Thompson speeding on Penn Avenue with his high beams on.

The driver of a car has a duty to operate the car withreasonable care under the circumstances so that the risk of riding in it is nogreater than the risk assumed when the passenger entered the car. Olson v. Buskey, 220 Minn. 155,157,19 N.W.2d 57, 58 (Minn. 1945). Thedriver’s duty to exercise reasonable care includes the duty to maintain areasonable lookout. Peterson v.Minneapolis St. Ry. Co., 236 Minn. 528, 531, 53 N.W.2d 817, 819 (Minn.1952); Thompson v. Hill, 366 N.W.2d 628, 631 (Minn. App. 1985). Gray argues that whether Breedlove breachedhis duty to maintain a reasonable lookout constitutes a genuine issue ofmaterial fact that remains in dispute. But a driver proceeding through a green light is entitled to anticipatethat cross traffic will stop at a red light. Goeden v. Thompson, 289 Minn. 293, 295, 184 N.W.2d 8, 9(1971).

Speed Dating Over 40 Golden Valley Minnesota Obituaries

The undisputed facts establish that Breedlove was drivingunder the posted limit due to the road conditions. He looked both ways before proceeding on a green light into theintersection. While in theintersection, Breedlove looked south and saw Thompson’s lights. But Thompson collided with Breedlove beforeBreedlove could react. The officerstestified that there was no time for Breedlove to react to Thompson’s carspeeding through the red light on Penn Avenue. Patterson, the independent witness, also testified that Breedlove had notime to avoid colliding with Thompson because of Thompson’s speed. By the time Thompson headed into theintersection, the police car’s siren was off, so it warned neither Breedlovenor Patterson of the risk Thompson posed. Likewise, because of the police car’s distance from the intersection andits location on the hill, the police car’s lights also were not visible toBreedlove. Gray offers no evidence tothe contrary, merely asserting, without evidentiary support, that Breedlove“should have had the time and ability” to react to the impending accident. We are mindful of the tragic injuries toGray and her daughter caused by the collision. But the record before us supports the district court’s conclusion thatsummary judgment is warranted by the law governing this case. Because the record does not contain anyevidence that Breedlove breached his common-law duty of care, the districtcourt did not err in entering summary judgment in favor of Breedlove and hismother.

Affirmed.