Tort Claims, Minn. Stat. 3.736, Indemnity

Minnesota case law summary by Attorney Richard Clem: MN tort claims, indemnity.

Chad Nelson v. Troy Schlener, et al.. MN tort claims, indemnity

Under the Minnesota Tort Claims Act, Minn. Stat. 3.736, the state must indemnify an employee for actions of an employee within the scope of employment. In this case, former Department of Human Services (DHS) employee Troy Schlener was accused of improperly accessing personal data regarding Nelson and other persons.

The DHS took the position that Schlener had not been acting within the scope of his employment, and refused to certify that fact for purposes of indemnity under the statute. Schlener then brought a petition for certiorari to the Minnesota Court of Appeals, which granted the writ.

DHS then sought review by the Minnesota Supreme Court. The state high court held that the Court of Appeals lacked subject-matter jurisdiction. Under the statute, the ultimate determination of scope of employment is made by the "trier of fact." The court held that neither the agency nor the Court of Appeals was the "trier of fact" for purposes of this statute. Therefore, the Court of Appeals lacked jurisdiction, and the DHS determination was upheld.

In so holding, the court overruled State v. Tokheim, 611 N.W.2d 375 (Minn. Ct. App. 2000).

No. A13-0936 (Minn. Feb. 11, 2015)

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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