This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Ralph Sletten, et al., and
Ronald Brzinski, et al.,
Filed January 29, 2002
Ramsey County District Court
File No. C6976504
Robert Hill, Robert Hill & Associates, LTD, Suite 2450, Centre Village Offices, 431 South Seventh Street, Minneapolis, MN 55402; and
Sonya Braunschweig, Larkin Hoffman Daly & Lindgren, LTD, 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for respondents)
Susan Gaertner, Ramsey County Attorney, Darwin Lookingbill, Bennett Rosene, Assistant County Attorneys, 50 West Kellogg Boulevard, Suite 560, St. Paul, MN 55102-1556; and
Jerome A. Miranowski, Rikke A. Dierssen-Morice, Kristin R. Eads, Faegre & Benson, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-3901 (for appellant)
Susan L. Naughton, League of Minnesota Cities, Association of Minnesota Counties, 145 University Avenue West, St. Paul, MN 55103-2044 (for amicus curiae)
Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Willis, Judge.
From 1990 to 1996, appellant Ramsey County was the sole operator of a compost site located on Beam Avenue in the City of Maplewood (city). Respondents, the Slettens, the Brzinskis, and the Behrens, are three families who live in close proximity to the site and who allege that they and their properties were injured by appellant’s operation of the site.
This is the second interlocutory appeal from the district court’s denial of appellant’s motions for summary judgment on immunity grounds. In the first appeal, this court affirmed the district court’s refusal to grant statutory and unimproved-land immunity to appellant. Sletten v. City of Maplewood, No.C7-98-2377, 1999 WL 595368 (Minn. App. Aug. 10, 1999), review denied (Minn. Oct. 26, 1999) (Sletten I). In this appeal from a partial denial of summary judgment, appellant argues that the court erred when it declined to apply the doctrine of vicarious official immunity to respondents’ nuisance and negligent failure to warn claims. Because it would be premature to grant summary judgment where, under the alleged facts, appellant created the nuisance and then attempted to claim immunity for its existence, we affirm the district court’s denial of vicarious official immunity to appellant on the nuisance claim. Because it would be premature to grant summary judgment where respondents have alleged facts showing that appellant had a duty to warn respondents of known dangers arising from the site and did not have discretion to decline to exercise that duty to warn, we affirm the denial of summary judgment on that claim.
Typically, public officials are not personally liable to individuals for damages where they are “charged by law with duties calling for the exercise of discretion.” Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 (Minn. 1999) (citation omitted). If the duty to be discharged is ministerial rather than discretionary, official immunity does not apply. Id. A discretionary act is one that “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); see S.W. v. Spring Lake Park Sch. Dist. #16, 580 N.W.2d 19, 23 (Minn. 1998) (official immunity protects discretion at operational level rather than at policy-making level). By contrast, a ministerial act is “absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.” Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937) (quotation omitted).
Vicarious official immunity allows the government to receive an employee’s official immunity. S.L.D. v. Kranz, 498 N.W.2d 47, 51 (Minn. App. 1993). It is a policy question in each case whether to extend vicarious official immunity to the government. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992); see Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993) (county entitled to vicarious official immunity to avoid “the focus of a stifling attention on the [employee’s] performance, to the serious detriment of that performance”); Ireland v. Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 274 (Minn. App. 1996) (“vicarious official immunity serves to avoid chilling the [employee’s] exercise of his independent judgment by allowing him to act without fearing that his conduct may eventually be subject to review by the judiciary and may expose his employer to civil liability”), review denied (Minn. Sept. 20, 1996). Vicarious immunity may apply even if the public employee is not named in the suit. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316-17 (Minn. 1998).
The district court ruled that under the facts alleged, appellant is not entitled to vicarious official immunity on the nuisance claim. At this point in the proceedings, we agree. Even if we concede that appellant may exercise some discretion in its management of the site, we conclude that it does not have discretion to operate a compost site that creates a nuisance that is dangerous to public health.
Respondents alleged that appellant’s mismanagement of the compost site injured their health, was offensive to their senses, and obstructed their free use of their property. See Minn. Stat. § 561.01 (2000) (defining nuisance as “[a]nything which is injurious to health, or indecent or offensive to the senses, or an obstruction of the free use of property, so as to interfere with the comfortable enjoyment of life or property”). Respondents also alleged that throughout its operation, the site generated noxious and foul-smelling odors and released abnormally high concentrations of pathogens and bioaerosols. Respondents further alleged that appellant disregarded or ignored their repeated complaints about the site. These alleged facts establish a claim of nuisance. See id.
The district court also concluded that if the governmental conduct here created the nuisance, that conduct is not subject to vicarious official immunity. Again, we agree. In Sletten I, this court analyzed the application of statutory immunity to a nuisance claim and rejected the county’s claim that it is not liable for governmental nuisance claims because the legislature failed to waive immunity for those types of claims when it passed the Municipal Tort Liability Act in 1963. Sletten I, 1999 WL 595368, at *3. Noting that the “attributes of nuisance claims” did not support the county’s statutory immunity claim, Sletten I cited law that supports the concept that the government is not entitled to immunity when it creates or maintains a nuisance. Id. (citingRestatement (Second) of Torts § 895C cmt. e (1979) (“there is no immunity” when municipality creates or maintains a nuisance); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 131, at 1054 (5th ed. 1984) (“nuisance is often equivalent to a taking of land, or at least an easement”)). Similarly, because appellant may have created or maintained the nuisance, we refuse to allow it to claim entitlement to vicarious official immunity.
As further support for its decision below, the district court quoted Highview N. Apts. v. County of Ramsey, 323 N.W.2d 65 (Minn. 1982), and reasoned that the nuisance statute “codifies an equitable cause of action” that “implicitly recognizes a need to balance the social utility of defendant’s actions with the harm to the plaintiff.” Id. at 71. We agree with the court’s characterization of the policy involved here. We therefore affirm the district court’s decision holding that appellant is not vicariously officially immune from suit for respondent’s claim of nuisance.
Duty to Warn Claim
In analyzing an official immunity question, we begin by identifying “the precise governmental conduct at issue.” Watson v. Metro. Transit Comm’n, 553 N.W.2d 406, 415 (Minn. 1996). The determination of whether an act is ministerial or discretionary must begin with a “review of the duty underlying the challenged conduct.” Huttner ex rel. Fenske v. State, ___ N.W.2d ___, ___ (Minn. App. 2001) (citation omitted), review denied (Minn. Nov. 13, 2001).
The district court, in declining to apply vicarious official immunity to appellant on the duty to warn claim, concluded that respondents raised genuine issues of material fact about whether appellant “assumed a specific ministerial duty to warn [respondents] about the dangers of airborne pathogens like aspergillus fumigatus.” The court noted that respondents had produced evidence that appellant had actual knowledge of risks of the pathogens produced at the compost site as demonstrated in the deposition of the Ramsey County Environmental Health Director who was responsible for the operation of the site, the minutes of the technical advisory group meetings, and discussion of health issues contained in a county report about the site. The court further noted that Robert Fulton, a Ramsey County Public Health official, also responded affirmatively when asked in his deposition whether his department “has a duty to warn people about the dangers of opportunistic pathogens.” The record further includes allegations that appellant was untruthful in its dealings with the city that preceded the city’s authorizing a permit for appellant to continue its operations at the site.
Given this evidence and the record, we agree with the district court’s decision refusing to apply vicarious official immunity to preclude respondents from suing appellant for failure to warn them of known dangers at the site. “[P]ublic officials clearly have a duty to adhere to ordinances and statutes.” Wiederholt, 581 N.W.2d at 316 (citation omitted). Here, we reject appellant’s argument that it had discretion to decide whether to warn of known dangers, especially in light of its concession that it owed such a duty. See id. (where city ordinance established city sidewalk inspector’s duty to immediately repair broken sidewalk slabs, inspector not entitled to official immunity for failure to have sidewalk immediately repaired).
We therefore affirm the district court’s refusal at this time to grant vicarious official immunity to appellant on respondents’ nuisance and failure to warn claims. See Christopherson v. City of Albert Lea, 623 N.W.2d 272, 275 (Minn. App. 2001) (decision on whether to apply immunity is legal question subject to de novo review).
 The district court granted summary judgment on respondents’ claims of trespass, violation of the Minnesota Environmental Response and Liability Act, and negligent operation of the site. Respondents do not challenge the district court’s ruling on those claims.