author: DANIEL F. FOLEY, Judge

text:
    Nicci C. FEAR, Respondent, v. INDEPENDENT SCHOOL DISTRICT 911, et al., Appellants, Lindquist & Leaf, Inc., Defendant.
    No. C8-01-486.
    Court of Appeals of Minnesota.
    Sept. 18, 2001.

      Thomas A. Foster, Thomas A. Foster <& Associates, Ltd., Minneapolis, for respondent.
    Kay Nord Hunt, Ehrich L. Koch, Lorn-men, Nelson, Cole & Stageberg, P.A., Minneapolis, for appellants.
    Considered and decided by ANDERSON, Presiding Judge, AMUNDSON, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge

Respondent was injured when he fell from a snow pile on a school playground. The snow pile was created because the school district decided to place snow removed from the parking lots on the playground. Respondent sued the school, school district, various district employees (collectively, appellants), and a contractor for negligence. Appellants moved for summary judgment claiming statutory, recreational, official, and vicarious official immunity. The district court denied the motion for summary judgment on all grounds except as to recreational immunity, on which the court concluded there was a material issue of fact. On appeal, appellants argue they are entitled to statutory immunity on the snow placement issue and for the school district’s hiring, supervision, and training decisions. Appellants also contend that respondent’s claims are barred by recreational immunity under Minn.Stat. § 466.03, subd. 6e (2000). Finally, they contend that the district employees are entitled to official immunity and that the school district is entitled to vicarious official immunity from the claim of negligent supervision. We affirm in part, reverse in part, and remand for trial.

FACTS

On February 4, 1997, while a third-grade student at Cambridge Elementary School, respondent Nicci Fear sustained injuries when he fell from a snow pile onto a piece of ice during recess on the school playground. The playground was the only open space that could accommodate the large amount of snow plowed from the parking lot. The school district claims that placing the snow on the playground minimized damage to school property, accommodated traffic and safety concerns, and was within the district’s limited snow removal budget.

Fear does not know how he fell from the snow pile, but he landed on a piece of ice about four inches square by two inches high. Other pieces of ice were in the area. Fear got.up, spoke with his teacher, and then went to see the school nurse. The students were not told to stay off of the snow pile, although they were not supposed to jump from high places. Fear claims there were two or three adult supervisors around, but he does not recall who they were.

Fear and his mother, Sandra Fear, sued the school; the school district; Principal Charles Niles; school district employees Karen Hammero, Andrea Koenig, and Karla Neumann; and Lindquist & Leaf, the snow removal contractor, for failure to exercise ordinary and reasonable care. The claim stated they were negligent in performing their duties to Fear, which resulted in his injury.

Appellants moved for summary judgment, arguing that the claim was barred because of statutory immunity, recreational immunity, official immunity, and vicarious official immunity. The district court denied the motion for summary judgment on all grounds except as to recreational immunity.

ISSUES

1. Did the district court err in denying statutory immunity to the school and the school district ?

2. Did the district court err in determining there was a question of material fact regarding whether appellants were entitled to recreational immunity?

3. Did the district court err in denying official immunity to the district employees and vicarious official immunity to the school and school district?

ANALYSIS

An order denying an immunity defense by way of summary judgment is appealable because immunity from suit is effectively lost if a ease is erroneously permitted to go to trial. Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn.1986). An appellate court reviews an order denying summary judgment by determining whether there is a genuine issue of material fact and whether the district court erred in applying the law. Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 218-19 (Minn.1998). Whether immunity applies is a legal question, which is reviewed de novo. Id. at 219. The party asserting an immunity defense has the burden of demonstrating facts showing that it is entitled to immunity. Gerber v. Neveaux, 578 N.W.2d 399, 402 (Minn.App.1998), review denied (Minn. July 16, 1998). In reviewing a denial of summary judgment based on a claim of immunity, this court presumes the truth of the facts alleged by the nonmoving party. Burns v. State, 570 N.W.2d 17, 19 (Minn.App.1997).

I. Statutory Immunity

Appellants argue that the school district’s decision to place the snow on the playground was a discretionary matter because it was a planning-level decision, which is protected by statutory immunity. Appellants claim that they weighed political, social, practical, and financial considerations to determine the safest way to deal with the snow problem while staying within the school district’s snow removal budget. They also assert that the school district’s hiring, supervising, and training of its employees is a planning-level decision, which is subject to statutory immunity as a matter of law. In the interest of justice, we review this issue on appeal. See Minn. R. CivApp. P. 103.04 (stating appellate court may review any matter as interest of justice may require).

A. Snow Removal

Under the Minnesota Tort Claims Act, a municipality can be held liable for the torts of its officers, agents, and employees. Minn.Stat. § 466.02 (2000). There are specific exceptions to municipal tort liability, including discretionary and recreational immunity. Minn. Stat. § 466.03, subds. 6, 6e (2000). Statutory immunity is to be construed narrowly. Angell v. Hennepin County Reg’l Rail Auth., 578 N.W.2d 343, 346 (Minn.1998). Discretionary immunity, sometimes referred to as “statutory immunity,” protects the government from claims arising from performing or failing to perform a discretionary act, regardless of whether it abused its discretion. Minn.Stat. § 466.03, subd. 6.

Statutory immunity is based on the separation of powers and is intended to prevent judicial review, through the medium of a tort action, of executive and legislative policy-making decisions. Zank v. Larson, 552 N.W.2d 719, 721 (Minn.1996). The supreme court has stated that

[i]f a governmental decision involves the type of political, social and economic considerations that lie at the center of discretionary action, including consideration of safety issues, financial burdens, and possible legal consequences, it is not the role of the courts to second-guess such policy decisions.

Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 412 (Minn.1996) (citation. omitted). Thus, although nearly any governmental act requires some measure of discretion, the immunity protects only those discretionary acts that involve the “balancing [of] policy objectives such as economic, social, and political factors.” Christensen v. Mower County, 587 N.W.2d 305, 307 (Minn.App.1998) (citation omitted).

Statutory immunity, however, does not protect all acts of judgment by government agents. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 (Minn.1988). In defining what is a discretionary act, the supreme court has made a general distinction between “operational” and “planning” decisions. Larson v. Indep. Sch. Dist. No. 314, 289 N.W.2d 112, 120 (Minn.1979). While planning decisions involve questions of public policy and are protected as discretionary decisions, operational decisions relate to the day-to-day government operation and are not protected as discretionary decisions. Holmquist v. State, 425 N.W.2d 230, 232 (Minn.1988). In analyzing a claim of immunity, the court must ascertain exactly what governmental conduct is being challenged. Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn.1994). “The critical inquiry is whether the conduct involved a balancing of policy objectives.” Id. (citation omitted).

In response to respondent’s motion for summary judgment, the school district submitted two affidavits to the district court to support its claim that the snow placement decision was a planning-level decision entitled it to statutory immunity. In his affidavit, Principal Niles stated:

Prior to the 1996/97 school year, the District decided to have the snow in the parking lot pushed to the sides. It was too costly to have a truck haul away the snow. Unfortunately, this method caused problems The snow piled around the outside of the parking lot interfered ■with the loading and unloading of school buses. Not only were the snow piles an obstruction, students also could be distracted by playing on the snow and sometimes missed their bus. There were also safety issues. Melting snow supplied a constant source of water in the spring, as well as slippery conditions on the parking lot created by the freezing and thawing of the snow.

Niles stated that cost was a major factor in deciding to move the snow to the playground because the district had a limited budget for snow removal. He also claimed that the cost of moving the snow increased depending on the distance it is moved and the time spent moving it. In addition, he pointed out that due to the natural drainage of the land, the playground was a good spot for the snow “as the run-off would flow away from the school.”

In another affidavit, Mark Eisenbacher, director of building and grounds for the school district, claimed that the decision to place the snow on the playground involved a “balancing of many factors, including the consideration of social, practical and safety issues, as well as financial constraints.” The final decision regarding snow removal belonged to Eisenbacher. He did not provide information on the specific financial limitations the district faced, but rather stated that the district had limited financial resources available for snow removal. After reciting the problems the district faced in dealing with the snow, Eisenbacher concluded that placing the snow on the playground, the only sufficiently open space, allowed for snow equipment access, lessened the impact on local traffic, made for safer loading and unloading of students from the buses, and avoided damage to the school district’s buildings. He commented that trucking the snow to a different location off school property would be cost prohibitive.

The district court concluded that Eisen-bacher’s affidavit was conclusory and “insufficient to show that the [school district’s] decision was a planning-level one” and held that the school district is not entitled to statutory immunity.

In reaching its conclusion, the district court relied on Conlin v. City of Saint Paul, 605 N.W.2d 396 (Minn.2000). In Conlin, the city appealed from a decision by this court holding that it was “not entitled to statutory immunity for its failure to use signs to warn motorists about the conditions of recently sealed streets.” Id. at 398. The supreme court concluded that affidavits submitted by the city did not provide sufficient evidence that it made a planning-level decision and it was therefore not entitled to statutory immunity. Id. at 403. The court set out its reasoning for finding that the affidavits did not provide sufficient evidence by stating:

[R]ather than explaining how and why a decision pertaining to the street sealing project was made and detailing the underlying considerations, the [street engineer’s] affidavits. are conclusory. The affidavits merely identify generalized concerns and seemingly parrot back language from our case law without incorporating specific facts demonstrating that a [planning-level] decision was in fact made.

Id. (emphasis added). The court commented that the city (1) said it considered the minimal public safety concerns involved in the project but failed to explain the concerns or how they played into the decision; (2) claimed that residents would be inconvenienced by barricades but did not show how it arrived at that conclusion; and (3) evaluated the financial considerations but did not provide evidence of actual cost of the various alternatives. Id. at 403.

The court’s insistence on specific information and actual numbers is not for the purpose of interfering with the legislative process of evaluating the significance of financial costs to justify the city’s decision. Id. at 401. However, the city’s failure to provide actual numbers to support a claim of discretionary decisionmaking is a factor to be considered by the courts when determining whether the evidence supports the city’s claim that a particular decision should be characterized as a protected planning-level decision. Id.

Finally, the court stated that

[by] allowing minimal averments in an affidavit to be sufficient evidence of a planning decision, there is á risk that professional or scientific decisions, as well as nondecisions, will be bootstrapped into planning decisions and thus protected by statutory immunity.

Id. at 403.

Here, the affidavits do not provide specific facts in support of the assertion that placement of the snow was based on a planning-level decision. The school district failed to establish that there was a definite policy decision made regarding snow placement. Further, the school district did not provide specific evidence of any budgetary restrictions and considerations. The affidavits identify issues the school district might have considered, but the possibility of bootstrapping and the requirement that statutory immunity be narrowly construed support the district court’s conclusion that there was insufficient evidence to support the assertion that placement of the snow on the playground was based on a planning-level decision protected by statutory immunity.

B. Hiring, Supervising, and Training Decisions

Hiring, supervising, training, and retaining municipal employees are policy-level activities that are protected by statutory immunity. Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 320 (Minn.App.1997), aff'd in part, 582 N.W.2d 216 (Minn.1998). The supreme court has held that the training of city bus drivers requires the balancing of financial, economic, and social considerations, which is a planning-level decision protected by statutory immunity. Watson, 553 N.W.2d at 413. The court has also held that supervision of parolees is a discretionary act subject to statutory immunity. Johnson v. State, 553 N.W.2d 40, 47 (Minn.1996). Further, this court has held that the state was entitled to statutory immunity where an accident victim claimed that the state negligently trained and supervised its snowplow operators. In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 548 (Minn.App.1997).

Niles’s affidavit suppoifs the claim that the hiring, training, and supervision of school employees are policy-level activities, and caselaw holds that analogous municipal organizations are entitled to statutory immunity for the hiring, training, and supervision of their employees. Therefore, we hold that the school district is protected by statutory immunity on this issue, and thus reverse.

II. Recreational Immunity

Appellants assert that respondent’s claim of negligence is barred by recreational immunity under MinmStat. § 466.03, subd. 6e, arguing that the' general trespasser standard, rather than the child trespasser standard, should be applied, which is contrary to the district court’s conclusion. The two standards are from the Restatement (Second) of Torts §§ 335, 339 (1965), respectively. The district court found that “[wjhether the school district is entitled to recreational use immunity is an issue of material fact to be determined at trial.”

Minn.Stat. § 466.03, subd. 6e, states that a school district is immune from tort liability if the claim is

based 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, as an open area for recreational purpose, or for the provision of recreational services ⅜ * ⅜ [and] the claim arises from a loss incurred by a user of a park and recreation property or services. Nothing in this subdivision limits the liability of the municipality for conduct that would entitle a trespasser to damages against a private person.

Therefore, recreational immunity “does not wholly absolve state agencies from liability, rather it enables them to treat visitors, in the tort context, as trespassers rather than licensees or invitees.” Sirek by Beawmaster v. State, Dept. of Natural Res., 496 N.W.2d 807, 809 (Minn.1993). A public entity is liable only if it violated the standard of care that a private landowner owes to a trespasser” under Minn.Stat. § 466.03, subd. 6e. Martin v. Spirit Mountain Recreation Area Auth., 566 N.W.2d 719, 721 (Minn.1997) (citation omitted). The question becomes whether to apply the general trespasser standard or the child trespasser standard.

The general trespasser standard can be applied to adults and children. Restatement (Second) of Torts § 335, cmt. c. Section 335 specifically provides:

A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if
(a) the condition
(i) is one which the possessor has created or maintains and
(ii) is, to his knowledge, likely to cause death or [serious] bodily harm to such trespassers and
(iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and
(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

Restatement (Second) of Torts § 335; see Hanson v. Bailey, 249 Minn. 495, 500, 83 N.W.2d 252, 257-58 (1957) (concluding section 335 correctly enunciates applicable law). “Each of the Restatement’s four requirements must be met for the state to be held liable.” Johnson v. State, 478 N.W.2d 769, 772 (Minn.App.1991) (citation omitted), review denied (Minn. Feb. 27, 1992). This standard holds a landowner “liable only for failing to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner.” Sirek, 496 N.W.2d at 810 (citation omitted). “The landowner has no duty to eliminate these conditions from the land in order to accommodate trespassers but only to give them adequate warning.” Id. (citation omitted). Thus, a landowner is

entitled to assume trespassers will realize that no preparation has been made for their reception and will, therefore, be on the alert to observe the conditions which exist upon the land.

Restatement (Second) of Torts § 335 cmt. f.

Restatement (Second) of Torts § 339, in contrast, imposes a heightened standard of care on landowners with respect to child trespassers by stating:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Minnesota adopted section 339 in place of the attractive nuisance doctrine in order to abolish the “idea of invitation * * * as condition precedent to liability in the case of young children injured.” Gimmestad v. Rose Bros. Co., 194 Minn. 531, 537, 261 N.W. 194, 196 (1935).

[O]ne who maintains on his premises an artificial condition is liable for resulting injury to young children trespassing thereon if [the conditions of § 339 are met].

Id. at 536, 261 N.W. at 196. Section 339 only applies, however, where children are “likely to trespass.”

Here, the children were allowéd to play on the snow piles during recess with school district employees present, and therefore the children arguably would not have realized the risk of injury involved. While there was supervision during recess, similar to cases applying section 335, the facts of this case are more directly analogous to section 339, the successor to the attractive nuisance doctrine. We have children playing during recess on a playground that has snow piles that attract their attention, and they are not prohibited from playing on them. The supreme court has stated that school districts have a duty of reasonable care to their students. Fallin v. Maplewood-N. St. Paul Dist. No. 622, 362 N.W.2d 318, 321 (Minn.1985). Absent caselaw applying section 335 to school settings, we conclude .that section 339 is more appropriate and shall be applied at trial. Whether to apply section 339 to school supervised playground settings appears to be an issue of first impression. Also, whether the school district is entitled to recreational immunity under section 339 is a question of material fact to be determined at trial.

III. Official and Vicarious Official Immunity

Appellants argue that the school district employees who supervised the playground activities and Principal Niles are protected under the doctrine of official immunity. In claiming that the employees are protected, appellants argue that the district would be protected under vicarious official immunity. Respondent claims that the school district employees were negligent in failing to provide adequate supervision during the recess period when he was harmed. The district court concluded that there was insufficient evidence to show that the employees exercised discretion with regard to the children playing on the snow piles and therefore they were performing a ministerial task, which is not protected by official immunity

A. Official Immunity

Whether actions of governmental employees are protected by official immunity is a question of law. Elwood v. Rice County, 423 N.W.2d 671, 674-75 (Minn.1988). The official immunity doctrine ensures 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.

Id. at 677 (quotation and citation omitted). It “protects public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties.” Id. at 678 (citations omitted). Official immunity requires the discretion to be exercised on at least an operational level and is something more than the performance of merely “ministerial” duties. Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn.1992). “[Official duty is ministerial when it is absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.” Elwood, 423 N.W.2d at 677 (quotation omitted). “Operational level decisions, on the other hand, involve decisions relating to the ordinary day-today operations of the government.” Conlin, 605 N.W.2d at 400 (citation omitted). “A discretionary act 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) (citation omitted). An act involving some discretion may nonetheless still be a ministerial task. See Williamson v. Cain, 310 Minn. 59, 61, 245 N.W.2d 242, 244 (1976) (ruling that tearing down house was ministerial, despite making independent decisions relating to job).

Principal Niles’s affidavit does not establish the existence of a school policy regarding recess or children playing on the snow piles. In fact, Niles specifically states that the teachers do not rely on him to decide whether recess will take place outside, what the students do during recess, or how the teachers will supervise the students. Niles commented that “[t]here is not a fixed designated rule for making any of these decisions.” He stated that these are discretionary matters delegated to the teachers, and the teachers have the duty of supervising the students during recess. The decisions made during playground supervision are separate and distinct from the planning-level decisions involved in hiring, training, and supervising district employees.

Niles, as principal, is responsible for the general safety and welfare of students. There is no evidence that Niles participated in the general supervision of the teachers regarding supervising the children at recess or that he made a planning-level decision regarding the snow piles on the playground. The school district failed to show that Niles did not abdicate his ultimate responsibility for the safety and welfare of students to the teachers. Nowhere in his affidavit did he address the potential danger to children playing on the snow piles, and he did not establish the existence of a school policy on the point. Therefore, Niles is not entitled to official immunity.

School district employees Hammero, Koenig, and Neumann were in charge of supervising the students when respondent was injured. While they exercised some discretion in deciding what the students would be permitted to do, that does not automatically guarantee immunity. See Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn.1997) (stating exercise of some degree of judgment or discretion does not automatically confer immunity). The crucial focus is on the nature of the act. Id. There was no evidence provided to the court by the employees to show that they actually made any decisions regarding recess and children playing on the snow piles. Because there is insufficient evidence that the employees made discretionary decisions on these matters, we conclude that they are not granted official immunity as a matter of law. Fact issues remain for resolution at trial.

B. Vicarious Official Immunity

If a public official is entitled to immunity for a discretionary act, the employing entity is generally entitled to vicarious official immunity as well. Pletan, 494 N.W.2d at 42.

Because we conclude that the employees are not protected by official immunity, the school district is not protected by vicarious official immunity.

DECISION

We conclude that the district court did not err in denying appellants’ motion for summary judgment. The school district did not provide adequate proof that its decision to place the snow on the playground was a planning-level decision entitled to statutory immunity. With regard to the claim of statutory immunity as to hiring, training, and supervising district employees, we hold the school district is entitled to statutory immunity. Further, whether the school district is entitled to recreational immunity is a question to be determined at trial by applying Restatement (Second) of Torts § 339, the child trespasser standard. We also conclude that Niles is not entitled to official immunity because there is no proof that he made any decisions about child safety with regard to playing on the snow piles. Because there is insufficient evidence to prove that the employees made any decisions as to supervising the children at recess and playing on the snow pile, they also are not entitled to official immunity. Finally because the school district employees are not entitled to official immunity, the school district is not entitled to vicarious official immunity.

Affirmed in part, reversed in part, and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Lindquist & Leaf did not participate in the motion for summary judgment and is not part of this appeal.

      . This was an issue in appellants’ motion for summary judgment to the district court but was neither addressed in respondent’s response to the motion or in the court’s order denying summary judgment. Appellants address this issue in their appeal.

      . A school district is defined as a municipality under this act. Minn.Stat. § 466.01, subd. 1 (2000).

      . The issues appealed to the supreme court in Gleason do not involve the claims for negligent supervision, hiring, training, and relen-lion of employees. The issue of statutory immunity was not before the supreme court.


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    NORTH STAR MUTUAL INSURANCE COMPANY, Appellant, v. MIDWEST FAMILY MUTUAL INSURANCE COMPANY, Secura Insurance Company, Respondents.
    No. C9-01-514.
    Court of Appeals of Minnesota.
    Sept. 25, 2001.

      Frank J. Rajkowski, Rajkowski Han-smeier Ltd., St. Cloud, for appellant.
    Dale M. Wagner, Louis J. Speltz, Bass-ford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, for respondent Midwest Family Mutual Insurance Company.
    Julius W. Gernes, Scott H. Rauser, Spence, Ricke, Sweeney & Gernes, St. Paul, for respondent Secura Insurance Company.
    Considered and decided by HANSON, Presiding Judge, WILLIS, Judge, and HALBROOKS, Judge.
   OPINION

WILLIS, Judge.

Appellant North Star Mutual Insurance Company (North Star) challenges the district court’s grant of summary judgment dismissing its contribution claim against respondents Secura Insurance Company (Secura) and Midwest Family Mutual Insurance Company (Midwest Family), arguing that because the policies of respondents were closer to the risk, it may recoup from them part of the money North Star paid to settle the injured party’s claim. By notices of review, Midwest Family argues that the tortfeasor was not an insured under its policy and both respondents claim that they were prejudiced because North Star settled the claim without providing notice of the intended settlement. Because we conclude that Secura did not demonstrate prejudice, we affirm in part, but because we conclude that Midwest Family’s policy did not cover the tortfeasor’s negligence and that Secura’s policy had priority, we reverse in part.

FACTS

In December 1993, Richard J. Smith was changing a tire on Mavis Swenson’s van in Smith’s barn with the assistance of Michael Harvieux. Smith knew that the tire was the incorrect size for the van’s rim. The tire exploded when he inflated it, causing Harvieux serious injury. At the time of the accident, appellant North Star insured Smith against liability for bodily injuries under a general farm-liability policy and respondent Secura insured Smith’s automobiles. Respondent Midwest Family insured Swenson’s van.

Harvieux received basic economic-loss benefits from his no-fault carrier and medical expenses from his health insurer. In April 1997, he sued Smith for his injuries. Smith tendered defense of the lawsuit to North Star. Without informing either respondent about the accident, Smith and North Star settled Harvieux’s claim in May 1998 for $235,000. Both respondents first learned about the accident and the settlement in February 1999.

In April 2000, North Star sued Midwest Family and Secura for contribution, attempting to recoup $50,000 from each insurer, the liability limits for bodily injury for each policy, on the theory that their policies were closer to the risk than its own. All three parties moved for summary judgment. In its motion, Midwest Family argued that Smith was not an insured under its policy with Swenson. Further, Midwest Family and Secura claimed independently that North Star’s failure to give notice of the intended settlement pre-eluded North Star from recovering from each. The district court granted summary-judgment to Midwest Family and Secura on the ground that North Star’s policy was closer to the risk, but it rejected Midwest Family’s argument regarding coverage and respondents’ arguments regarding notice.

North Star appeals the denial of its motion for summary judgment. By notice of review, Midwest Family challenges the district court’s determination that Smith was insured under Swenson’s policy, and both Midwest Family and Secura challenge the district court’s determination that they were not prejudiced by North Star’s failure to provide the notice required by their policies.

ISSUES

1. Does Midwest Family’s automobile-liability insurance policy with Swenson cover Smith’s negligence?

2. Was Secura prejudiced by North Star’s failure to provide notice?

3. Was Secura’s coverage primary?

ANALYSIS

On appeal from summary judgment, this court asks (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The parties do not dispute the facts of this case.

I.

As a threshold issue, Midwest Family contends that the district court erred by finding that there was a “sufficient casual connection” to include Smith as an insured under its policy. The interpretation of an insurance policy and its application to the facts of a case present questions of law, which this court reviews de novo. Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 608 (Minn.2001).

At the time of Harvieux’s injuries, Swen-son’s policy provided: ‘We will pay damages for ‘bodily injury’ * * * for which any ‘insured’ becomes legally responsible because of an auto accident.” In pertinent part, the policy defined “insured” as:

1. You or any “family member” for the ownership, maintenance, or use of any auto or trailer.
2. Any person using “your covered auto.”

Under the policy, “you” referred to Swen-son and her spouse, if she was married and her spouse resided with her; “family member” referred to a person related to Swen-son by blood, marriage, or adoption, if the person resided with her. Because there is no evidence that Swenson and Smith were married to each other or related to each other at the time of the accident, Smith is not an “insured” under the first definition.

North Star argues that Smith is an insured under the second definition. Minnesota law provides “reimbursement for all loss suffered through injury arising out of the maintenance or use of a motor vehicle.” Minn.Stat. § 65B.44, subd. 1 (2000). This reimbursement is available only to or on behalf of a person who is an insured under an automobile-liability policy. Smith is not a statutory insured under Swenson’s policy. See Minn.Stat. § 65B.43, subd. 5 (2000) (providing that “insured” includes the named insured and the named insured’s family members, while residing in the same household). Therefore, we must determine whether the policy extended coverage beyond the statutory requirement to include Smith.

Midwest Family’s policy provided coverage to any person “using” Swenson’s van. Words of an insurance policy “are to be given their natural and ordinary meaning.” Am. Family, 628 N.W.2d at 609 (citation omitted). The ordinary meaning of “using” does not include changing a tire; this activity is ordinarily considered maintenance of a vehicle. See Marklund v. Farm Bureau Mut Ins. Co., 400 N.W.2d 337, 339 (Minn.1987) (noting distinction between “use” and “maintenance” of motor vehicle); Midwest Family Mut. Ins. Co. v. Karpe, 430 N.W.2d 856, 859 (Minn.App.1988) (describing tire repair as “maintenance”), review denied (Minn. Dec. 21, 1988). We conclude that Smith is not an insured under the second definition.

Further, although Minnesota law presumes that a vehicle’s driver is an agent of the vehicle’s owner, there is no corresponding statutory presumption that a vehicle’s mechanic is an agent of the vehicle’s owner, and our review of Minnesota case-law reveals none. See Minn.Stat. § 170.54 (2000) (deeming driver who operates vehicle with consent of owner to be agent of owner). Because Smith is not an insured under Swenson’s policy and Swenson is not hable for his negligence, North Star cannot seek contribution from Midwest Family for settling Harvieux’s claim. Accordingly, we do not reach Midwest Family’s claim that it was prejudiced by North Star’s failure to provide notice of the settlement.

II.

Secura argues that it was prejudiced by North Star’s settlement of Harvieux’s claim before providing Secura with notice. Secura’s insurance policy with Smith states that the insured must notify Secura “as soon as reasonably possible” of “every accident, occurrence or loss” and must “promptly” send Secura “any legal papers received relating to a claim or suit.” The policy further provides that Secura “may not be sued unless there has been full compliance with all the terms of this policy.” Smith never notified Secura of the accident and resulting loss. But Secura had actual notice in February 1999, when North Star sought contribution, and in its arguments on appeal, Secura treats North Star’s notice as equivalent to a notice by Smith.

Under Minnesota law, late notice by an insured defeats coverage if the insurer is prejudiced. Reliance Ins. Co. v. St. Paul Ins. Companies, 307 Minn. 338, 342, 239 N.W.2d 922, 925 (1976) (concluding that showing of actual prejudice by insurer is required to defeat liability). The burden of proving prejudice is on the insurer claiming prejudice. Id., 307 Minn. at 342, 239 N.W.2d at 925.

First, Secura contends that it was prejudiced because it was unable to conduct a meaningful investigation of the accident and Harvieux’s claimed injuries. We disagree. In Dairyland Ins. Co. v. Clem-entson, a passenger who was injured in a one-ear accident and covered under her father’s automobile-insurance policy with Mutual Service Insurance Company (MSI) settled a claim for uninsured-motorist benefits in 1981 and renegotiated the settlement in 1986. Dairyland Ins. Co. v. Clementson, 431 N.W.2d 895, 896-97 (Minn.App.1988). Later in 1986, MSI learned that the passenger was also an insured under her brother’s automobile insurance policy with Dairyland, and it sought pro rata reimbursement from Dairyland. Id. Dairyland claimed that it was prejudiced, but on appeal, this court disagreed:

[T]he accident involved only one vehicle in which [the injured party] was a passenger. Other than a mere claim of prejudice, respondent offers no facts which would suggest negligence by anyone other than the driver.

Id. at 898.

Here, as in Dairyland, the circumstances of the accident causing the injury are not complicated: an improperly sized tire fitted to a rim exploded when Smith inflated it, causing serious injuries to Har-vieux. Nothing in the record suggests that anyone other than Smith was negligent. Secura has not asked to conduct a medical examination of Harvieux and has presented no evidence that his injuries were not serious or that the notification delay prejudiced its ability to investigate the accident.

Second, Secura claims that North Star’s unilateral settlement “runs afoul of Minnesota law applying the Miller-Shugart doctrine.” In a Miller-Shugart settlement,

the insurer has denied all coverage, and the abandoned insured, left on its own, agrees with the plaintiffs that judgment in a certain sum may be entered against it in return for the plaintiffs releasing the insured from any personal liability.

Zurich Reinsurance (UK) Ltd. v. Canadian Pacific Ltd., 613 N.W.2d 760, 764 (Minn.App.2000), review denied (Minn. Sept. 26, 2000); see Miller v. Shugart, 316 N.W.2d 729 (Minn.1982). The insurer is bound by the settlement only if it was reasonable and prudent and was not obtained by fraud or collusion. Miller, 316 N.W.2d at 734-35. But because North Star provided full coverage to Smith and settled Harvieux’s claim, this case does not involve a Miller-Shugart settlement.

Finally, Secura argues that it was prejudiced because it was unable to participate in settlement negotiations with Harvieux, citing Hooper v. Zurich Am. Ins. Co., 552 N.W.2d 31 (Minn.App.1996), review denied (Minn. Sept. 20, 1996). In Hooper, this court stated that insurers were prejudiced as a matter of law by the insureds’ failure to inform them of federal and state lawsuits until after the federal lawsuit was resolved with a judgment against the insureds and the state action was settled:

Here, the delay meant that [the insurers] had no opportunity to control the litigation in either * * * action, to seek a declaratory judgment regarding coverage, or to attempt settlement before the adverse federal judgment.

Id. at 32, 36. Relying on this language, Secura claims that because it did not receive notice until after the settlement, it was prejudiced as a matter of law. We disagree. The appellants in Hooper did not challenge the initial ruling of the district court that the insurers were prejudiced, and this court considered the issue only “in the interest of completeness.” Id. at 36. Because the issue was not before the court, our discussion of the issue was dictum and is not binding in subsequent cases. See Kissoondath v. U.S. Fire Ins. Co., 620 N.W.2d 909, 915 (Minn.App.2001) (explaining dicta), review denied (Minn. Apr. 17, 2001).

To succeed in its argument, Secura must show that its inability to participate in the settlement negotiations resulted in actual prejudice. See Reliance Ins. Co., 307 Minn. at 342, 239 N.W.2d at 925. Secura has not shown that it would have avoided liability if it received timely notice or that its payment obligation would be lower than its policy limit of $50,000. As the district court noted, “[tjhere is no dispute here about Harvieux’s damages or the manner in which the accident occurred.” We conclude that Secura was not prejudiced by North Star’s failure to notify Secura of the settlement until after it occurred.

III.

Neither North Star nor Secura has claimed that its policy does not cover the loss created by Harvieux’s injuries. Neither policy provided priority coverage by statute. See Minn.Stat. § 65B.49, subd. 3(3)(d) (2000) (providing that “residual liability insurance policy [is] excess of a non-owned vehicle policy”). Thus, we first consider whether the “other insurance” clauses in the policies determine priority of coverage. See CPT Corp. v. St Paul Fire & Marine Ins. Co., 515 N.W.2d 747, 751 (Minn.App.1994), review denied (Minn. July 27,1994).

At the time of Harvieux’s injuries, Secures “other insurance” clause stated, in pertinent part:

Any insurance we provide for * * * any other vehicle you do not own shall be excess and shall apply only after any other applicable insurance, including any physical damage insurance, is exhausted.

North Star’s “other insurance” clause for personal liability stated: “This insurance is excess over other valid and collectible insurance that applies to the loss or claim.” Because each policy’s “other insurance” clause provided for coverage only after all other applicable insurance coverage was exhausted, the clauses conflict. See Illinois Farmers Ins. Co. v. Depositors Ins. Co., 480 N.W.2d 657, 660 (Minn.App.1992) (concluding that excess clauses conflict).

Because the clauses conflict, we must then determine the respective rights of the insurers. Caselaw developments have given rise to two different approaches to apportioning liability among insurers providing overlapping coverage.

In Auto Owners Ins. Co. v. Northstar Mut. Ins. Co., the supreme court described a three-part analysis for determining the respective liabilities of such insurers:

(1) Which policy specifically described the accident-causing instrumentality?
(2) Which premium is reflective of a greater contemplated exposure?
(3) Does one policy contemplate the risk and use of the accident-causing instrumentality with greater specificity than the other policy[ — ]that is, is coverage of the risk primary in one policy and incidental to the other?

Auto Owners Ins. Co. v. Northstar Mut. Ins. Co., 281 N.W.2d 700, 704 (Minn.1979). But in subsequent cases, a separate analysis was identified:

It appears to us that, in this case, rather than applying the three-part “closest-to-the-risk” test, it is more helpful to use the broader approach * ⅜ * of allocating respective policy coverages in light of the total policy insuring intent, as determined by the primary policy risks and the primary function of each policy.

Interstate Fire & Cas. Co. v. Auto-Owners Ins. Co., 433 N.W.2d 82, 86 (Minn.1988).

In Garrick v. Northland Ins. Co., the supreme court reaffirmed the existence of two separate analyses: the “broader” analysis involving “total policy insuring intent” and the three-part Auto Owners analysis. Garrick v. Northland Ins. Co., 469 N.W.2d 709, 712 (Minn.1991); see Richardson v. Ludwig, 495 N.W.2d 869, 874 (Minn.App.1993) (describing caselaw development of both analyses), review denied (Minn. Apr. 20, 1993). This court has held that “total policy insuring intent” analysis “applies when the policies were intended to cover risks differing in kind and in size” and is considered “broader” than the three-part analysis of Auto Owners “only in the sense that it involves more than a mechanical application of the three factors set out in Auto Owners.” Richardson, 495 N.W.2d at 874. Recent decisions of this court have performed both analyses and begin with the Auto Owners analysis. See, e.g., Richardson, 495 N.W.2d at 874-75; CPT Corp., 515 N.W.2d at 751-52.

A.Specific description

Neither policy contains a specific description of the tire that exploded and caused Harvieux’s injuries, and so neither contains a more specific description of the accident-causing instrumentality than the other.

B. Premium

Smith paid Secura semi-annual premiums of $54.60 and $49.10 for his two cars for liability insurance against bodily injury and paid North Star a semi-annual premium of $71.10 for general liability insurance for his farm. The district court determined that North Star’s premium reflected a “greater contemplated exposure” than Secura’s. We disagree. The premiums received by each insurer were fairly close in amount and do not establish that one contemplated greater exposure to this risk than the other.

C. Primary/Incidental coverage

Secura’s policy insured Smith against liability for “bodily injury * * * resulting from the ownership, maintenance, or use of a car or utility trader.” North Star’s policy provides “principal coverage” to Smith against liability for “bodily injury * * * caused by an occurrence to which this coverage applies.” North Star’s policy excluded from coverage bodily injury that

results directly or indirectly from the ownership, operation, maintenance, use, occupancy, renting, loaning, entrusting, supervision, loading or unloading of
motorized vehicles * * *
owned, operated or used by or rented or loaned to an insured.

But because Swenson’s van was not owned, operated, or used by Smith and not rented or loaned to him at the time of the accident, the exclusion does not apply here, and both policies provide primary coverage for the injuries to Harvieux.

We conclude that neither policy is closer to the risk under the analysis of Auto Owners, and turn to the “total policy insuring intent” analysis.

D. “Total Policy Insuring Intent”

Secura’s policy specifically insured Smith against liability for bodily injury resulting from the maintenance of a car. North Star agreed to provide general insurance coverage for bodily injuries and its policy excluded almost all forms of liability arising from maintenance of a motorized vehicle. Replacing a tire unquestionably is maintenance of a motor vehicle. See Midwest Family, 430 N.W.2d at 859 (determining that tire replacement is maintenance). Based on the insuring intent of the policies, we conclude that Secura’s policy had priority. Therefore, North Star is entitled to a $50,000 contribution from Sec-ura, the liability limits for bodily injury provided by Secura’s policy.

DECISION

The district court correctly determined that Secura did not show prejudice, and therefore we affirm in part. But because we conclude that Smith is not an insured under Midwest Family’s insurance policy with Swenson and that Secura’s policy had priority, we reverse in part.

Affirmed in part and reversed in part.

      . In its motion for summary judgment, Secu-ra argued that its policy's notice provision was a condition precedent to liability. See Sterling State Bank v. Virginia Surety Co., 285 Minn. 348, 354-55, 173 N.W.2d 342, 346 (1969) (stating that failure to furnish notice and proof of loss within policy deadlines does not invalidate insurance policy except "where giving such notice or proof is a condition precedent of liability under the insurance contract”). The district court disagreed. On appeal, Secura comments, without further argument, that the district court relied on an "inapposite” case in deciding that issue. But "[a]n assignment of error based on mere assertion and not supported by any argument or authorities * * ⅜ is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.” State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn.App.1997) (quotation omitted). Secu-ra's policy provided that Smith should inform Secura or its authorized agent "as soon as reasonably possible” after every accident, occurrence, or loss. This language does not create a condition precedent. Cf. Reliance Ins. Co., 307 Minn. at 341-43, 239 N.W.2d at 924-25 (reviewing failure to comply with policy requiring notice of claim or suit "as soon as practicable” to determine if prejudice to insurer occurred).

      . Secura did not present to the district court the issue of whether its policy covers Harvieux's injuries, and we decline to consider it on appeal. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating that reviewing court will generally not consider issues that were not presented to and considered by district court). Further, we note that the insuring clause of Secura's policy does not limit Secura's liability to only those cars named in the policy: "We will pay damages for which an insured person is legally liable because of bodily injury * * * resulting from the ownership, maintenance, or use of a car or utility trailer.”


author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Michael Jon OLSON, Appellant.
    No. C0-01-191.
    Court of Appeals of Minnesota.
    Oct. 2, 2001.

      Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, St. Paul, MN; and Alan L. Mitchell, St. Louis County Attorney, Duluth, MN, (for respondent).
    Samuel A. McCloud, Kelly Vince Grif-fitts, Carson J. Heefner, Shakopee, MN, (for appellant).
    Considered and decided by PETERSON, Presiding Judge, AMUNDSON, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant Michael Olson, arrested for outstanding warrants during a routine traffic stop, resisted arrest and now challenges the district court’s admission into evidence of the methamphetamine found on his person during the police search that followed his resistance. Appellant argues that his initial arrest was unconstitutional and that his subsequent resistance to that arrest did not constitute an intervening circumstance sufficient to purge the taint of the initial illegality. But we also conclude that the arresting officer did not have probable cause to arrest appellant initially. We further conclude, however, that appellant’s subsequent act of resisting the unlawful arrest constituted a new crime sufficient to purge the taint of the initial illegality, and that the subsequent search of appellant’s person, which produced the methamphetamine, was a constitutional search incident to arrest. We therefore affirm.

FACTS

On March 16, 2000, at approximately 4:15 p.m., St. Louis County Deputy Sheriff Charles Williams observed a vehicle traveling southbound on Highway 100 at a high rate of speed. Williams obtained a radar reading of 65 in a 55 miles-per-hour zone, activated his squad car’s emergency lights, and executed a traffic stop. Williams approached the car and immediately recognized the driver and front-seat passenger as “very active drug user[s].” Williams did not, however, recognize the man and child in the back seat.

Williams asked the driver for his license and for the name of the man in the back seat to ensure that there were no outstanding warrants for the occupants of the vehicle. The driver told Williams that the adult back-seat passenger was named Michael Olson, appellant here. Williams returned to his squad car and determined that there were two outstanding warrants for persons named Michael Olson; one for Michael (no middle name) Olson (d.o.b.3/21/71) and another for Michael Joseph Olson (d.o.b.5/5/63).

Williams returned to the stopped vehicle, asked appellant to step out of the car, and told appellant that there were two outstanding warrants for Michael Olson. Appellant explained that he was not the man named in the warrants, but Williams testified that he nevertheless “told [appellant] that at this point [appellant] was under arrest, but if it turned out that there were no warrants out for him he would be allowed to go.” Williams did not ask appellant for his date of birth (11/28/66) or middle name (Jon), and did not ask to see appellant’s driver’s license.

Williams handcuffed appellant. Although Williams did not believe that appellant had a weapon, he began a pat-down search and appellant objected.’ As Williams reached toward appellant’s pants pocket, appellant began to twist, turn, and pull away from the deputy. Williams applied pressure to control appellant, but when he released some pressure, appellant struggled more violently. Williams escorted appellant to his squad car.

Because appellant continued to struggle and thwart the officer’s efforts to place him in the squad car, Williams called for backup. When another officer arrived, Williams “completed the pat-down search of [appellant]” and “[in appellant’s] pants pocket, [Williams] retrieved a small knife and a small baggie of’ what tests later proved to be methamphetamine. Williams testified that, at the time of the search, appellant was under arrest for obstructing legal process.

Williams and the other officer placed appellant in the rear seat of Williams’s squad car. The officers searched the stopped vehicle, did not find any controlled substances, and ultimately permitted the driver, the front-seat passenger, and the child to leave. The officers transported appellant to jail, and police conducted another search as part of the booking process.

The state charged appellant with fifth-degree controlled-substance possession, a violation of MinmStat. § 152.025, subd. 2(1) (2000), and ..obstruction of legal process, a violation of MinmStat. § 609.50, subd. 1(2) (2000). The state later dismissed the obstruction charge. Appellant moved to suppress the methamphetamine recovered from his person and moved to dismiss the controlled-substance possession charge for lack of probable cause. The district court denied the motion. The parties submitted the case on stipulated facts, and the district court found appellant guilty of fifth-degree controlled-substance possession. The district court sentenced appellant, ordering a stayed term of one year and one day, subject to probation conditions. Appellant contests the denial of his motion to suppress the methamphetamine, arguing that the evidence was the product of an unconstitutional search.

ISSUE

Did the district court err by denying appellant’s motion to suppress the methamphetamine recovered by police following a traffic stop and subsequent arrest for obstruction of legal process?

ANALYSIS

Appellant argues that the district court erred by failing to suppress the methamphetamine because (1) the possibility that there were outstanding warrants for appellant’s arrest did not afford Williams probable cause to arrest appellant and (2) appellant’s act of resisting arrest, thereby obstructing legal process, did not remove the primary taint of the initial illegal arrest. Respondent state counters that, even if Williams lacked probable cause to arrest appellant for possible outstanding arrest warrants, Williams lawfully arrested appellant for obstruction of legal process, thereby removing the taint of the initial illegal arrest. Respondent contends that the subsequent ' search that produced the methamphetamine was a constitutional search incident to arrest.

[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the [district] court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.

State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992) (citations omitted). Whether an arrest is supported by probable cause, and whether a search is constitutional, are questions of law, which this court reviews de novo. See State v. Horner, 617 N.W.2d 789, 795 (Minn.2000) (probable cause); State v. Robb, 605 N.W.2d 96, 99 (Minn.2000) (search).

I.

The United States and Minnesota constitutions protect citizens from “unreasonable searches and seizures.” U.S. ConstAmend IV; Minn. Const. Art. 1, § 10. Warrantless searches and seizures are unreasonable, subject to only a few exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Robb, 605 N.W.2d at 100. One of these exceptions is a search incident to arrest:

If an arrest is valid, police may conduct, without a warrant, a full search of the person of the arrestee as an incident of the arrest without any additional justification.

State v. Walker, 584 N.W.2d 763, 766 (Minn.1998) (citations omitted).

A. Initial Amest for Outstanding Warrant

Appellant first contends that Williams’s search of his person was not a lawful search incident to arrest because the possibility of outstanding warrants did not supply the probable cause necessary for Williams to lawfully arrest appellant.

A valid arrest requires probable cause. State v. Beckman, 354 N.W.2d 432, 436 (Minn.1984). Probable cause exists if the objective facts indicate that “a person of ordinary care and prudence [would] entertain an honest and strong suspicion that a crime has been committed.” State v. Johnson, 314 N.W.2d 229, 230 (Minn.1982) (citing State v. Carlson, 267 N.W.2d 170, 173 (Minn.1978)). The facts must justify more than mere suspicion but less than a conviction. Carlson, 267 N.W.2d at 173-74; see also State v. Riley, 568 N.W.2d 518, 523 (Minn.1997) (police must show that they could have reasonably believed that a crime had been committed by the person to be arrested). The probable-cause standard is an objective one that considers the totality of the circumstances. State v. Perkins, 582 N.W.2d 876, 878 (Minn.1998).

Minn.Stat. § 629.32 (2000) provides that a peace officer may lawfully arrest a person “when advised by any other peace officer in the state that a warrant has been issued for that person.” Williams, however, did not have the necessary “strong suspicion” to arrest appellant because Williams did not know whether appellant was the same man named in the warrants.

Williams testified, “I told [appellant] at that time he was going to have to come with me until I could make sure that the Mike Olson and the Michael Joseph Olson [in the warrants] were not him. * * ⅜ I told him at this point he was under arrest, but if it turned out that there were no warrants out for him, he would be allowed to go.” Williams also testified that he knew the driver and front-seat passenger to be “very active drug user[s].” Williams did not ask appellant for his date of birth or middle name until after arresting appellant, and he never asked appellant for his driver’s license.

Considering the totality of the circumstances, we conclude that Williams had only a “mere suspicion” that appellant was the man named in the warrants because Williams only knew that appellant associated with alleged known drug users. As discussed above, a “mere suspicion,” as opposed to a “strong suspicion,” does not rise to the level of probable cause. Outstanding warrants for persons named Michael Olson, without more, did not supply Williams with the probable cause necessary to arrest appellant.

We reject respondent’s contention that appellant was not under arrest at the time he was handcuffed. An individual is “in custody” to the degree associated with formal arrest when an objectively reasonable person in the place of the detainee would believe that he or she was in custody. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). Courts must examine all of the surrounding circumstances to determine whether there is a formal arrest. State v. Rosse, 478 N.W.2d 482, 484 (Minn.1991).

Williams told appellant that he was “under arrest,” handcuffed him, and began a pat-down search in anticipation of placing appellant in his squad car. We conclude that a reasonable person in appellant’s circumstances would have believed that he was formally under arrest. See, e.g., United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990) (discussing factors indicating custody, including being told under arrest); State v. Moorman, 505 N.W.2d 593, 599 (Minn.1993) (person under arrest when handcuffed).

B. Removal of Taint

Appellant does not dispute that his act of twisting and turning supplied Williams with the probable cause necessary to arrest him for obstruction of legal process. Appellant contends, however, that his act of obstructing legal process, and his consequent arrest for that crime, did not remove the primary taint of the initial illegal arrest for the outstanding warrants, and, therefore, the district court should have suppressed all derivative evidence.

It is established that evidence discovered by exploiting previous illegal conduct is inadmissible. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Such evidence is considered “fruit of the poisonous tree,” and, to be admitted, the state must show that the evidence was obtained “by means sufficiently distinguishable to be purged of the primary taint.” Id. at 488, 83 S.Ct. at 417. Minnesota appellate courts examine several factors to determine whether evidence is fruit of the poisonous tree. Knapp v. Comm’r of Pub. Safety, 610 N.W.2d 625, 628 (Minn.2000). The factors considered are (1) the purpose and flagrancy of the misconduct; (2) the presence of intervening circumstances; (3) whether it is likely that the evidence would have been obtained in the absence of the illegality; and (4) the temporal proximity of the illegality and the evidence alleged to be the fruit of the illegality. State v. Sickels, 275 N.W.2d 809, 814 (Minn.1979). No one factor is dispositive; rather, courts must balance all of these factors. State v. Weekes, 268 N.W.2d 705, 709 (Minn.1978).

The purpose and flagrancy of Williams’s misconduct and the temporal proximity support suppression of the evidence. Williams initially arrested appellant before determining whether the outstanding warrants, were, in fact, for his arrest. Williams discovered the methamphetamine within a short time after the initial arrest. A close temporal proximity favors exclusion. State v. Raj, 368 N.W.2d 14, 16 (Minn.App.1985), review denied (Minn. July 11, 1985).

The intervening circumstances, however, strongly support admission of the evidence. In State v. Ingram, this court held that resisting arrest and flight from a police officer during a pat-down search are intervening circumstances sufficient to purge the initial illegality of a prior stop and attempt to search. 570 N.W.2d 173, 179 (Minn.App.1997), review denied (Minn. Dec. 22, 1997). The Ingram court reasoned that

Minnesota courts have generally held that resisting arrest and flight, from a police officer, even if prompted by illegal police conduct, are intervening circumstances sufficient to purge the illegality of its primary taint. See City of St. Louis Park v. Berg, 433 N.W.2d 87, 90 (Minn.1988) (holding that evidence of defendant’s resistance to arrest may not be excluded as fruit of the poisonous tree); State v. Combs, 394 N.W.2d 567, 568-69 (Minn.App.1986) (holding an illegal arrest does not require suppression of evidence of a crime committed in response to the arrest), rev’d in part on other grounds, State v. Combs, 398 N.W.2d 563 (Minn.1987).

Id. at 178. Ingram explains that a defendant may not resort to “self-help,” such as resisting arrest, to resolve disputes concerning unreasonable search and seizures

because the legal safeguards under the Fourth, Fifth, Sixth, and Fourteenth Amendments provide the victim of an unlawful search with realistic and orderly legal alternatives to physical resistance.

Id. (citations and quotations omitted).

Ingram also explains that resisting arrest is different from merely fleeing and attempting to dispose of incriminating evidence; disposing of contraband is a “predictable and common response” to an illegal search that warrants suppression of the evidence, /¿(citation omitted). As in Ingram, appellant’s act of resisting arrest went beyond an ordinary, predictable attempt to dispose of evidence. See Berg, 433 N.W.2d at 90-91 (observing that suppression of obstruction evidence would effectively grant defendants a “license to resist, no matter how violently, with impunity”); cf. State v. Balduc, 514 N.W.2d 607, 612 (Minn.App.1994) (tossing marijuana plants during execution of search warrant is a predictable response); Combs, 394 N.W.2d at 569 (attempt to conceal a cup of beer followed by an assault on an officer was not predictable and warranted admission of the evidence).

Following Ingram and the authority relied on by the Ingram court, we conclude that the valid arrest of appellant for obstructing legal process outweighs the other factors and removed the taint of the earlier unconstitutional arrest. We therefore hold that the methamphetamine was admissible as the product of a lawful search incident to arrest.

DECISION

The mere suspicion that appellant was the person name in outstanding warrants, without more, did not supply the probable cause necessary to arrest appellant initially. Appellant’s subsequent act of obstructing legal process, however, constituted an intervening circumstance sufficient to purge the taint of the initial illegality. Therefore, the subsequent search of appellant’s person, which produced methamphetamine, was a constitutional search incident to arrest.

Affirmed.

      . Because we conclude that Williams conducted a lawful search incident to arrest, we need not reach respondent's alternative investigatory search arguments.


author: PETERSON, Judge.

text:
    STATE of Minnesota, Appellant, v. Troy Allen KRENZ, Respondent.
    No. C7-01-558.
    Court of Appeals of Minnesota.
    Oct. 2, 2001.

      Mike Hatch, Attorney General, St. Paul, MN; and G. Paul Beaumaster, Rice County Attorney, Jonathan C. Audette, Assistant County Attorney, Faribault, MN, (for appellant).
    David Ludescher, Northfield, MN, (for respondent).
    Considered and decided by PETERSON, Presiding Judge, AMUNDSON and ANDERSON, Judges.
   OPINION

PETERSON, Judge.

This pretrial appeal is from an order suppressing evidence obtained as a result of a warrantless search of a fish house. The state argues that because ice fishing is a pervasively regulated activity and a person engaged in a pervasively regulated activity has a reduced expectation of privacy in the premises where the activity is conducted, the warrantless search of the fish house pursuant to the regulatory scheme for fishing is within an exception from the Fourth Amendment warrant requirement. We affirm.

FACTS

At around 11:30 a.m. on January 21, 2000, Conservation Officer Thomas Hemker approached a fish house on Cannon Lake in Rice County to determine whether the fish house was properly registered and the occupants had fishing licenses. Respondent Troy Allen Krenz owned the fish house. Hemker did not notice any unusual or suspicious behavior and saw that the required registration decal was on the outside of the fish house. Hemker knocked on the fish house, identified himself, and opened the door without waiting for a response to his knock.

Krenz and Christopher Gillen were in the fish house when Hemker entered. As he entered, Hemker saw Krenz push down the trays in a tackle box and thought that Krenz was trying to cover up something. Hemker asked to see Krenz’s fishing license. After searching for his license, Krenz told Hemker that he had lost it a few weeks earlier.

Hemker saw a small aluminum pipe, about five inches long and one half inch in diameter, lying next to the tackle box. The pipe appeared to Hemker to be a device that is used to smoke controlled substances. Because of prior contacts with Krenz, Hemker suspected that there was marijuana in the fish house. He asked Krenz where the marijuana was, and Krenz responded that there was no marijuana in the fish house.

Hemker then investigated the contents of the tackle box. He readjusted the tray and found an aluminum spoon that contained an off-white, rock-like substance. Krenz told Hemker that the substance was baking soda. Hemker then saw Gillen drop several containers into a hole through the ice. Hemker retrieved the items and asked Gillen what was inside them. Gillen said that they contained cocaine.

Krenz was arrested and taken to the law enforcement center where he was given a Miranda warning before speaking with an investigator. Krenz admitted that he smoked crack cocaine with the pipe found in the fish house, that the pipe belonged to him, and that the pipe contained cocaine.

Krenz was charged with one count of controlled-substance crime in the fifth degree. He moved to suppress all evidence obtained from him on the grounds that Hemker’s entry into the fish house was unconstitutional and all of the evidence was obtained as a result of an unlawful search and seizure. Krenz also moved to suppress all evidence taken from the tackle box on the grounds that the seizure of the tackle box exceeded Hemker’s statutory authority and Hemker had no constitutional authority to seize the tackle box without a search warrant. Finally, Krenz moved to suppress any statements he made on the grounds that the statements were the products of an illegal search and seizure.

The district court determined that Hemker’s entry into the fish house was unconstitutional, suppressed all evidence derived from the entry, and dismissed the charge against Krenz.

ISSUE

Did Hemker’s entry into the fish house violate the Fourth Amendment of the United States Constitution?

ANALYSIS

To prevail in a pretrial appeal from a suppression order,

the state must ‘clearly and unequivocally’ show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.

State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (quoting State v. Zanter, 535 N.W.2d 624, 630 (Minn.1995)). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id.

Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.

State v. Kim, 398 N.W.2d 544, 551 (Minn.1987). The trial court’s order suppressing all evidence obtained as a result of Hemker entering the fish house will have a critical impact on the state’s ability to sue-cessfully prosecute Krenz because the order completely destroys the state’s case.

When reviewing pretrial orders on motions to suppress evidence, we may independently review the, facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.

State v. Harris, 590 N.W.2d 90, 98 (Minn.1999) (citation omitted).

The district court concluded that because Krenz had a legitimate expectation of privacy in his fish house, Hemker’s entry into the fish house without consent, a warrant, probable cause, or an articulable basis for suspicion violated the Fourth Amendment of the United States Constitution. We agree.

The Fourth Amendment provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV.

The basic purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967).

[E]xcept in certain carefully defined classes of cases, a search of private property without proper consent is “unreasonable” unless it has been authorized by a valid search warrant.

Id. at 528-29, 87 S.Ct. at 1731.

The United States Supreme Court has explained that

in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; ie., one that has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”

Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387).

There is no dispute that Krenz had a subjective expectation of privacy in the fish house. And we find persuasive the trial court’s reasoning that because the solid walls of a fish house provide visual privacy for a range of legitimate activities that can take place in a fish house, an expectation of privacy in a fish house is reasonable. Krenz owned the fish house, and it was properly on Cannon Lake. See Minn.Stat. § 97C.355, subd. 7 (1998) (specifying dates and times fish house may remain on ice). Krenz, therefore, was properly where he had a right to be, and there was no reason for him to think that anyone outside the fish house could see anything that happened inside the fish house. Under these circumstances, Krenz had a reasonable expectation of privacy in the fish house.

The state argues that the suppression order constituted error because under New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), a person engaged in a pervasively regulated activity has a reduced expectation of privacy in the premises where the activity is conducted and a warrantless inspection of the premises pursuant to the regulatory scheme may be constitutionally permissible. The state contends that this carefully defined exception to the warrant requirement applies here because ice fishing is a pervasively regulated activity, and Hemker entered the fish house pursuant to Minn.Stat. § 97A.215, subd. 3(1) (1998), which is part of the state regulatory scheme for fishing. Therefore, the state concludes, Hemker’s warrantless entry was constitutionally permitted.

In Burger, the Supreme Court considered whether a warrantless search of an automobile junkyard, which was conducted pursuant to a statute that authorized the search, fell within an exception to the warrant requirement for administrative inspections of commercial premises in a pervasively regulated industry. The court explained that

the Fourth Amendment’s prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable. This expectation exists not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative inspections designed to enforce regulatory statutes. An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home. This expectation is particularly attenuated in commercial property employed in “closely regulated” industries. * * * “Certain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise.”

Id. at 699-700, 107 S.Ct. at 2642 (citations omitted) (quoting Marshall v. Barlow’s, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 1821, 56 L.Ed.2d 305 (1978)).

The Supreme Court concluded that where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a war-rantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment.

Id. at 702, 107 S.Ct. at 2644.

In the context of a pervasively regulated business, a warrantless inspection will be deemed to be reasonable when three criteria are met: (1) there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made; (2) the war-rantless inspection must be necessary to further the regulatory scheme; and (3) the certainty and regularity with which the inspection program is applied must provide a constitutionally adequate substitute for a warrant. Id. at 702-03, 107 S.Ct. at 2644.

Minn.Stat. § 97A.215, subd. 3(1), provides:

An enforcement officer may, at reasonable times:
(1) enter and inspect the premises of an activity requiring a license under the game and fish laws.

Krenz’s fish house was the premises of an activity requiring a license under the game and fish laws. Minn.Stat. § 97C.355, subd. 2 (1998), requires a fish house to be licensed, and Minn.Stat. § 97C.301, subd. 2 (1998), requires a person to be licensed to take fish by angling. Also, Minn.Stat. § 97A.251, subd. 1(2) (1998),. requires anglers to submit to inspection of licenses while fishing, and MinmStat. § 97C.355, subd. 3 (1998), provides:

A person may not use a dark house or fish house unless the door is constructed so that it can be opened from the outside when it is in use.

The state argues that Hemker’s war-rantless inspection of Krenz’s fish house pursuant to Minn.Stat. § 97A.215, subd. 3(1), meets the three criteria set forth in Burger for being deemed to be a reasonable search. The state emphasizes that warrantless searches of fish houses are necessary to enforce the regulatory scheme for fishing and that the statutes permitting inspection of fishing licenses and requiring a fish house door to remain unlocked while the fish house is being used make it abundantly clear to fish house users that a conservation officer may be coming to check fishing licenses and fishing methods and to examine any fish that have been caught.

But in making this argument, the state fails to recognize that a warrantless inspection that meets the criteria set forth in Burger is deemed to be reasonable in the context of a pervasively regulated business. Krenz’s ice fishing was not a business activity; it was a personal recreational activity. The United States Supreme Court has declined to extend the exception to the warrant requirement for administrative inspections of commercial enterprises in pervasively regulated industries to property that is not used in a regulated or licensed business.

In Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the United States Border Patrol stopped and searched an automobile that was 25 miles north of the United States border with Mexico. Id. at 268, 93 S.Ct. at 2537. The only asserted justification for the stop and search was a provision in the federal Immigration and Nationality Act that permitted warrantless searches of automobiles “within a reasonable distance from any external boundary of the United States.” Id. (quoting 8 U.S.C. § 1357(a)(3)). A federal regulation defined “reasonable distance” as “within 100 air miles from any external boundary of the United States.” Id. The Border Patrol had no warrant and no probable cause for the stop or search. Id.

In seeking a rationale for the validity of the search in Almeida-Sanchez, the government relied on cases dealing with administrative inspections, as the state does in the case before us. Two of the cases the government relied on, Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), “approved warrantless inspections of commercial enterprises engaged in businesses closely regulated by the Government.” Id. at 270-71, 93 S.Ct. at 2538. The Supreme Court found these cases to be inapposite and explained:

A central difference between those cases and this one is that businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of then-trade, whereas the petitioner here was not engaged in any regulated or licensed business.

Id. at 271, 93 S.Ct. 2535.

Like the petitioner in Almeida-Sanchez, Krenz was not engaged in any regulated or licensed business. Admittedly, Krenz was engaged in a regulated and licensed activity. But the state has not cited any authority that indicates that the exception to the warrant requirement for administrative inspections in pervasively regulated industries has ever been applied to permit a search of noncommercial property simply because a regulated and licensed activity is occurring on the property. Absent any such authority, we see no basis to apply this exception to permit the warrantless inspection of private property used for noncommercial, personal recreational purposes.

The state argues that because violations of fishing regulations that occur in fish houses cannot be observed, prohibiting inspections of fish houses effectively precludes the state from enforcing its fishing regulations for a substantial portion of the year. A similar argument was made in Camara v. Municipal Court, in which the Supreme Court held that administrative inspections of dwellings for possible violations of a city housing code, “when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual.” 387 U.S. at 534, 87 S.Ct. at 1733. In rejecting the argument that warrantless inspections were essential to effective housing code enforcement, the Supreme Court stated:

The final justification suggested for warrantless administrative searches is that the public interest demands such a rule: it is vigorously argued that the health and safety of entire urban populations is dependent upon enforcement of minimum fire, housing, and sanitation standards, and that the only effective means of enforcing such codes is by routine systematized inspection of all physical structures. Of course, in applying any reasonableness standard, including one of constitutional dimension, an argument that the public interest demands a particular rule must receive careful consideration. But we think this argument misses the mark. The question is not, at this stage at least, whether these inspections may be made, but whether they may be made without a warrant. For example, to say that gambling raids may not be made at the discretion of the police without a warrant is not necessarily to say that gambling raids may never be made. In assessing whether the public interest demands creation of a general exception to the Fourth Amendment’s warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search. It has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement.

Id. at 533, 87 S.Ct. at 1733 (citation omitted).

Fish house inspections may be necessary to effectively enforce the state’s fishing regulations. Presumably, that is why the legislature granted enforcement officers the authority to inspect fish houses. But the state has not explained why fish house inspections cannot achieve their goal if they must be conducted with a warrant.

DECISION

Because the exception to the warrant requirement for administrative inspections of commercial premises in a pervasively regulated industry does not apply to a search of private property used for a personal recreational activity, Hemker’s warrantless inspection of Krenz’s fish house violated the Fourth Amendment of the United States Constitution. The district court did not err when it suppressed all evidence obtained as a result of the warrantless inspection.

Affirmed.