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Malone v. Special School District No. 112/6/2005
r his position that annual certifications are required. Because there is no express requirement in the statute that recertification be sought at any particular interval, we decline to rewrite the statute to add such a term. See Genin v. 1996 Mercury Marquis, 622 N.W.2d 114, 117 (Minn. 2001) (stating that rules of construction forbid adding words or meaning to statute that were intentionally or inadvertently left out).
Therefore, we conclude the district court did not err in its application of the law or in its determination that there was no genuine issue of material fact regarding respondent's compliance with the statute.
III.
Appellant argues that Minn. Stat. § 121A.03 (2002) "creates an absolute legal duty upon the Minneapolis School District." The statute requires that the commissioner maintain a model policy on discrimination, harassment, and violence and that school boards adopt, conspicuously post, and submit to the commissioner a policy that conforms to the Minnesota Human Rights Act. Id., subds. 2, 3. "Generally, the existence of a legal duty is an issue for the court to determine as a matter of law." Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).
The violation of a statute may constitute negligence per se. Seim v. Garavalia, 306 N.W.2d 806, 810 (1981). For a statute to create a fixed standard of conduct by which the fact of negligence may be determined per se, the statute's purpose must be: (a) "to protect a class of persons which includes the one whose interest is invaded," (b) "to protect the particular interest which is invaded," (c) "to protect that interest against the kind of harm which has resulted," and (d) "to protect that interest against the particular hazard from which the harm results." Scott, 256 N.W.2d at 488 (quoting Restatement of Torts 2d § 286); see also Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn. 1979) (holding that municipality may be liable for negligence per se when it violates ordinance protecting particular class of individuals, rather than public generally, from specified harm).
Appellant does not argue that the school district violated a particular part of the statute. Instead, he quotes extensively from the policies adopted by the school board pursuant to the statute, but cites to no cases holding that violation of the school's policies is the equivalent of violation of statutes, ordinances, and regulations. See, e.g., Scott, 256 N.W.2d at 488 (holding that former version of Minn. Stat. § 121A.31 created duty on school district to require wearing of protective eyewear); see also Seim, 306 N.W.2d at 810 (setting out statutes creating negligence per se standards of care regarding wearing eyeglasses, removing doors from discarded refrigerators, and outlawing fireworks). Because the statute itself does not create a fixed standard of conduct regarding harassment of teachers, appellant may not rely on it to establish negligence per se.
IV.
Appellant also argues that the district court erroneously determined that the school district is immune from tort liability under the discretionary-function exception to government tort liability. Minn. Stat. § 466.03, subd. 6 (2004).
If a school district is not immune from tort liability based on section 466.12, then it may still be immune from " ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Id. Statutory immunity exists to prevent the courts from conducting an after-the-fact review that second-guesses "certain policy-making activities that are legislative or executive in nature." Nusbaum v. Blue Earth County, 422 N.W.2
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