This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






LaDaryl C. Fischer,


County of Blue Earth,


Filed October 23, 2000


Willis, Judge


Blue Earth County District Court

File No. C1992053



Karl O. Friedrichs, Friedrichs Law Office, P.A., 624 South Second Street, Mankato, MN 56001 (for appellant)


Arvid Wendland, Wendland Timmerman, 825 East Second Street, Blue Earth, MN 56013 (for respondent)



            Considered and decided by Amundson, Presiding Judge, Willis, Judge, and Foley, Judge.*



U N P U B L I S H E D  O P I N I O N




Appellant LaDaryl C. Fischer challenges summary judgment in favor of respondent Blue Earth County on his negligence claim.  Fischer appeals the district court’s determination that (1) the county is entitled to statutory immunity and vicarious official immunity and (2) Fischer failed to present evidence establishing causation on his negligence claim.  We affirm.



In May and June 1996, Blue Earth County began construction of County State Aid Highway 90 (C.S.A.H. 90), in part across the southern portion of Fischer’s farm.  The highway construction involved building a roadbed, installing ditches, and modifying the existing underground drainage systems.  Fischer’s land and a portion of the highway are located in the county’s Judicial Ditch No. 13 watershed.  Ditch No. 13 has an underground tile drainage system designed to drain up to one-fourth of an inch of water over a 24-hour period from the watershed lying north of the highway, as well as from a few acres south of the highway.

Fischer’s hog barn is located approximately 900 feet north of the highway and has an underground manure pit.  On June 16 and 17, 1996, the area received a 100-year rainfall, and Fischer’s manure pit was flooded.  Fischer brought a negligence action against the county to recover for structural damage to the manure pit caused by flooding and for income he claims he lost as a result of the damage.  Fischer asserts that the flooding was caused by the county’s negligent design and construction of C.S.A.H. 90 and its water-drainage system.

The county moved for summary judgment, claiming statutory and vicarious official immunity and that Fischer failed to present evidence establishing the causation element of his negligence claim.  The district court agreed and granted the county’s motion on all grounds.  This appeal followed.



On appeal from summary judgment, the reviewing court asks whether there are any genuine issues of material fact to be determined and whether the district court erred in its application of the law.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).  In reviewing a grant of summary judgment, the facts must be taken in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  To establish the existence of a genuine issue of material fact, the nonmoving party must do more than rely on allegations in the pleadings or postulate evidence that might be produced at trial.  W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998).

1.         Statutory Immunity

The district court found that the county was entitled to statutory immunity.  In Minnesota, a county is “subject to liability for its torts and those of its officers, employees, and agents.”  Minn. Stat. § 466.02 (1998).  But a county has statutory immunity from liability for claims “based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”  Minn. Stat. § 466.03, subd. 6 (1998).  The application of immunity is a question of law, which is subject to de novo review.  Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998).  The statutory-immunity exception is narrowly construed.  Cairl v. State, 323 N.W.2d 20, 23 (Minn. 1982).

The doctrine of statutory immunity distinguishes between “planning-level” conduct, which is entitled to immunity, and “operational-level” conduct, which is not.  Fisher v. County of Rock, 596 N.W.2d 646, 652 (Minn. 1999). Operational-level decisions involve decisions relating to the ordinary day-to-day operations of the government.  Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988).  Planning-level decisions, by contrast, are those

involving questions of public policy, that is, the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy.


Id.  Thus, in deciding whether statutory immunity applies, courts ask if the conduct at issue involves questions of public policy, that is, the balancing of political, social, or economic considerations.  See Angell v. Hennepin County Reg’l Rail Auth., 578 N.W.2d 343, 346 (Minn. 1998).

Analysis of a statutory-immunity claim first requires identification of the conduct at issue.  Angell, 578 N.W.2d at 346.  The conduct Fischer places at issue here is the county’s decision-making process relating to the design and construction of C.S.A.H. 90 and its drainage system.  The county bears the burden of establishing that it is entitled to statutory immunity.  Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994).  Therefore, the county must produce evidence that its conduct was of a policy-making nature.  Id.

To support its contention that its design and construction decisions were policy-based, the county provided the affidavit of county highway engineer Alan Forsberg.  Forsberg states that he assists the county board generally in making construction decisions and describes the county’s decision-making process in the design and construction of C.S.A.H. 90 as reflecting “public relations” and economic considerations.  The public relations efforts he describes include the county’s decision to acquaint affected landowners with the proposed highway design and construction process and to invite comment, reflecting political considerations that the county weighed in the planning process.  Forsberg also describes the county’s decision to preserve drainage patterns as they existed before construction and, because of the additional expense that would be involved, not to improve drainage systems that were in need of repair or were inadequately designed, reflecting the county’s balancing of economic considerations.  See Invest Cast, Inc. v. City of Blaine, 471 N.W.2d 368, 372 (Minn. App. 1991) (ruling statutory immunity applied to city’s decision not to allocate funds for extension of sewer and water service), review denied (Minn. Aug. 1, 1991).

Fischer argues that in light of the supreme court’s decision in Conlin v. City of Saint Paul, the affidavit offered by the county is insufficient to support its claim of statutory immunity.  Conlin v. City of Saint Paul, 605 N.W.2d 396 (Minn. 2000).[1]  In Conlin, a motorcyclist was injured when his cycle overturned in loose sand.  Id. at 399.  The City of Saint Paul offered affidavits of a street-maintenance engineer to show that the city’s failure to place warning signs or take other action during the sealing phase of roadwork was the result of a policy decision.  Id. at 402.  The Minnesota Supreme Court held that because the city’s affidavits were merely conclusory, failing to explain how or why policy concerns factored into its decision and neglecting to describe the underlying considerations in detail, the affidavits failed to satisfy the city’s burden to show it was entitled to statutory immunity.  Id. at 402-03. 

Here, Forsberg’s affidavit shows that the county’s decision-making involved a balancing of political and economic considerations.  The affidavit describes in detail how policy considerations were taken into account in the county’s decision-making process. Unlike the affidavits in Conlin Forsberg’s affidavit provides sufficient detail to show that a planning decision was in fact made.  We conclude the county satisfied its burden of showing that its decision was policy-based, in that it balanced political and economic considerations.

The district court did not err in granting the county summary judgment on its claim of statutory immunity for decisions regarding drainage for C.S.A.H. 90.  See Ostendorf v. Kenyon, 347 N.W.2d 834, 836 (Minn. App. 1984) (recognizing that summary judgment for a county is appropriate if its actions are entitled to immunity).

2.         Vicarious Official Immunity

The district court also found that the county is entitled to vicarious official immunity.  To determine whether vicarious official immunity is available to a governmental unit, a court must first determine whether official immunity applies to the challenged behavior.  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998).  The common-law doctrine of official immunity provides that a public official who is charged with duties requiring the exercise of judgment or discretion is not personally liable for damages arising from his or her performance of those duties, unless the official acts with malice.[2]  Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988).  The doctrine is designed to protect officials from “the fear of personal liability that might deter independent action.”  Id. at 678.  Official immunity, therefore, protects government officials from suits based on discretionary acts in the performance of their official duties.   Wiederholt, 581 N.W.2d at 315.  Whether official immunity applies to the challenged behavior is a question of law, which we review de novo.  Gleason, 582 N.W.2d at 219.

Unlike statutory immunity, official immunity involves the kind of discretion that is exercised on an operational rather than a policy-making level.  Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992).  Therefore, the critical inquiry in official-immunity analysis is whether the public official’s actions were discretionary or ministerial.  Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998).  Official immunity does not protect purely ministerial acts.  Ireland v. Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 272 (Minn. App. 1996).  Ministerial acts are “absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts,” and leaving nothing to the discretion of the official.  Id. (citation and quotation omitted).  By contrast, discretionary acts, which are protected, call for the exercise of individual professional judgment that “necessarily reflects the professional goal and factors of a situation.”  Wiederholt, 581 N.W.2d at 315.

Here, the county’s engineers exercised their discretion to effectuate the county’s policy decision to construct the new highway’s drainage system with minimum modification of existing drainage systems.  They decided the number and location of drop inlets and the manner in which new drainage tile would be connected with existing tile to preserve drainage conditions.  In addition, during construction, Fischer asked the engineers to close a drop-inlet.  They refused because of their concern that closing an inlet would have a detrimental effect on adjacent landowners, which shows an exercise of discretion and judgment beyond simply the manner in which they would implement county policy.  These decisions were not merely the execution of a mandated duty precipitated by a set of fixed and designated facts but rather required the exercise of discretion and judgment.  The acts of the county engineers are entitled to official immunity.

Vicarious official immunity protects a governmental entity from a suit based on the acts of an employee who is entitled to official immunity.  Wiederholt, 581 N.W.2d at 316.  The supreme court has concluded that “it would be anomalous” to impose liability on the government employer for the very same acts for which the employee receives immunity.  Id. (citation omitted).  Because the county engineers are entitled to official immunity, the county is also immune from suit.  The district court did not err in determining that the county was entitled to summary judgment on its claim of vicarious official immunity.

3.         Causation

Finally, the district court found that Fischer failed to present any concrete evidence that the county caused the flooding of his manure pit.  Generally, negligence presents a fact question for the jury, but where reasonable minds can reach only one conclusion, summary judgment is proper.  Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633-34 (Minn. 1978).  Summary judgment for the county is appropriate if the record reflects a “complete lack of proof on an essential element” of Fischer’s negligence claim.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

To prove that a defendant’s negligence was the proximate cause of his or her injury, a plaintiff must show that the defendant's conduct was a “substantial factor” in bringing about the injury.  Lubbers, 539 N.W.2d at 401.  Expert opinion is required to establish causation if the issue is “outside the realm of common knowledge.”  Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 762 (Minn. 1998).  Because of the complex nature of drainage systems, the issue here goes beyond the ordinary knowledge and understanding of a layperson, requiring expert testimony to establish causation.   

Fischer submitted a report by a professional engineer, who opined that the county’s changes to the drainage system created “the potential of increasing the build-up of water over the drop inlets and backpressure in the header system serving [Fischer’s] house and hog barn area.” (Emphasis added.)  But the engineer also concluded that “[i]t cannot be determined positively that changes in the drainage system caused water to rise in the * * * hog barn pit because of the many variables involved [including] rainfall intensity, rainfall duration, rainfall frequency and soil permeability.”

Fischer failed to submit any concrete evidence that the county’s modification of the drainage system caused the flooding of his manure pit.  See Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993) (stating “[M]ere speculation, without some concrete evidence, is not enough to avoid summary judgment.”).  Fischer’s theory that the county’s drainage modification caused the flooding “is no more supported by or consonant with the facts than other theories which could be developed” and which would relieve the county of liability.  Zinnel v. Berghuis Constr. Co., 274 N.W.2d 495, 499 (Minn. 1979).  Fischer’s case rests on speculation, which is insufficient to support a finding of proximate cause.

Absent some concrete evidence that the construction and design of the highway and its attendant drainage system caused the flooding of Fischer’s manure pit, the county is entitled to summary judgment.  The district court did not err in granting summary judgment for the county on the issue of causation.


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


[1]The district court issued its order in this case on January 10, 2000, one month beforethe supreme court’s decision in Conlin.


[2] Fischer does not allege that the county or its engineers acted with malice.