This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Dr. Ba Lam,
County of Ramsey, Minnesota, et al.,
Filed June 8, 2004
Ramsey County District Court
File No. C2-02-9271
Alfred Stanbury, Stanbury Law Firm, P.A., 2209 St. Anthony Parkway, Minneapolis, MN 55418 (for respondent)
Susan Gaertner, Ramsey County Attorney, David F. MacMillan, Assistant County Attorney, 560 RCGC-West, 50 Kellogg Boulevard West, St. Paul, MN 55102 (for appellants)
Considered and decided by Harten, Presiding Judge, Halbrooks, Judge, and Minge, Judge.
Appellants challenge the district court’s denial of their motion for summary judgment, arguing that where respondent’s landscaping created a dam preventing surface water from draining from the adjacent boulevard, and appellants deemed this a safety hazard and created a drainway through respondent’s newly laid sod, they were entitled to official immunity for respondent’s trespass claim. Because we conclude that a genuine issue of material fact exists as to whether appellants acted with malice, we affirm.
In August 2001, respondent Dr. Ba Lam purchased property located at 1622 Lake Johanna Boulevard (the boulevard) in Arden Hills, Minnesota. Respondent’s property is on the lake side of the boulevard; the land located on the other side is unoccupied and referred to as the “swamp” by local residents. Respondent asserts that every home along the lake, except his, has drainage into a culvert that runs to the other side of the boulevard and empties into the swamp. But because respondent’s property is located at a low point of the boulevard, he contends that rainwater has always accumulated and then drained onto his property. According to respondent, “[p]roper drainage never existed.” When respondent took possession of the property, it was not landscaped and the area adjacent to the boulevard was “a large collection of mud and foul smelling debris.”
In September 2001, respondent commenced a landscaping project that included cleaning up the debris, planting shrubs, laying a thin layer of gravel, and laying sod. In July 2002, respondent resumed the project, adding more gravel and laying 45 additional rolls of sod. After several days of heavy rainfall, respondent’s neighbor complained that there was more standing water on her driveway than usual, and respondent noticed that approximately one-third of the putting green in her front yard was also covered with water. The neighbor reported the problem to appellant Ramsey County, and appellant Scott Jahnke, an employee of the Ramsey County Public Works Department, drove to respondent’s property on July 12, 2002 to investigate the problem. Jahnke noticed that “landscaping material, gravel, and timbers had been emplaced adjacent to the paved portion of the right-of-way and were at an elevation of three to four inches above the shoulder, thus creating a dam preventing surface water draining from the [boulevard].” Jahnke posted a notice near respondent’s driveway, advising that there was a drainage issue and that respondent should contact him before completing any additional work in the right-of-way.
Upon receiving the notice, respondent’s mother immediately contacted Jahnke, who returned to the property to talk with respondent and his parents. Jahnke explained that the landscaping had created a drainage problem and would have to be modified to allow water to drain from the boulevard. Jahnke told respondent that he would need to lower the landscaping to be level with or below the edge of the boulevard and create a swale to allow water to drain from the boulevard. Respondent suggested placing underground drainpipes and draining the water into Lake Johanna, but Jahnke informed him that piping unfiltered water into the lake was not permitted.
On July 15, 2002, Jahnke returned to respondent’s property with appellant Gary Clepper to take elevation shots to determine the low points in the drainage area. During that visit, respondent’s neighbor approached Clepper and “expressed concern that at one time she had placed landscaping on the right-of-way and had been required by Ramsey County to remove some of it and change it, as it interfered with traffic and drainage from the [boulevard].” The neighbor also provided appellants with seven photographs she had taken showing flooding on her property and the boulevard.
Appellants subsequently advised respondent that he would have to remove the timber and change the landscaping to permit proper drainage from the boulevard. Respondent, having discovered a culvert leading from under the boulevard that drained into the swamp, asked if that pipe, rather than his yard, could be used for drainage. Jahnke informed him that this was not feasible due to the expense involved. Respondent completed the requested work the same day. On July 24, 2002, Jahnke left respondent a message telling him that the sod would need to be lowered even more. Respondent received the message at 9:00 p.m. that evening.
On July 25, 2002, it rained heavily in the morning. Jahnke and Robert Vezina, another public works employee, returned to the property and noticed that “water had pooled onto the [boulevard] surface to a depth of several inches . . . [and] was creating a traffic hazard and flooding [respondent’s neighbor’s] property.” According to Jahnke, he and Vezina attempted to drain the water off the boulevard by using shovels to remove gravel and folding back some of the newly laid sod that was impeding drainage. Jahnke explained:
We created a drainage way approximately 15 to 20 feet long and one foot wide through the new sod so the water could drain from the [boulevard]. We did not survey the edge of the highway right-of-way and did not know if the drainage way extended beyond the edge of the highway right-of-way.
At the time Robert Vezina and I created this drainway, I felt we had an emergency situation which required immediate action to alleviate a safety hazard to the users of the [boulevard] and the pedestrian bike path. It was my judgment that the danger to the users of the [boulevard] was too great to permit the water to remain on the [boulevard] and simply evaporate. I felt the fastest, least intrusive way to do this was for Mr. Vezina and me to flip back the newly laid sod to create the drainway that would permit the surface water to drain from the [boulevard]. This drainway was dug only so far as was needed to ensure that water would not flood the [boulevard].
In October 2002, respondent commenced suit against Ramsey County, Scott Jahnke, Gary Clepper, Public Works Department director Kenneth Haider, and department engineer Joseph Peroutka. Respondent asserted multiple causes of action, including nuisance, mental anguish, taking of property, racial discrimination, and trespass to land. Appellants interposed several defenses and counterclaims including, with respect to the trespass claim, the defense of official immunity.
Appellants moved the district court for summary judgment on all claims. Following a hearing, the district court issued an order on October 17, 2003, partially granting and partially denying appellants’ motion. With regard to the trespass claim, the district court denied appellants’ official-immunity defense. Appellants filed a notice of appeal from this decision and petitioned for discretionary review of the denial of summary judgment as to respondent’s nuisance claim. Respondent filed a notice of review, challenging the part of the October 17 order granting appellants’ motion for summary judgment on respondent’s discriminatory-conduct and taking claims. By special-term order, this court denied appellants’ petition for discretionary review in December 2003. This court also dismissed respondent’s notice of review in January 2004. This appeal, challenging the applicability of appellants’ official-immunity defense to respondent’s trespass claim, remains.
D E C I S I O N
On appeal from denial of summary judgment, we review 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). “An order denying an immunity defense by way of summary judgment is appealable because immunity from suit is effectively lost if a case is erroneously permitted to go to trial.” Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 209 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). 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). 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). Whether immunity applies is a legal question, which we review de novo. Gleason, 582 N.W.2d at 219.
The common-law doctrine of official immunity establishes 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 unless he is guilty of a willful or malicious wrong.” Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988) (quotation omitted). Official immunity is based on the policy of protecting public officials from the fear of personal liability that might otherwise deter independent action and impair effective performance of their duties. Id. at 678.
In determining whether official immunity applies, courts must focus on the nature of the particular act in question. Id. at 677. If the official duty is “ministerial,” no immunity exists. Id. An act is ministerial where it is “absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.” Williamson v. Cain, 245 N.W.2d 242, 244 (Minn. 1976) (quotation omitted). On the other hand, performance of discretionary duties is protected unless some willful or malicious conduct is involved. Elwood, 423 N.W.2d at 677. “The discretion involved in official immunity is different than the policymaking type of discretionary function immunity afforded governmental entities.” Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992). Official immunity involves the type of discretion “exercised on an operational rather than a policymaking level.” Id. Operational-level decisions are those that “relate to the day-to-day government operation.” Fear, 634 N.W.2d at 210. Generally, when official immunity protects a public official from suit, the governmental employer is likewise immune. Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 414 (Minn. 1996).
Our first inquiry is whether Jahnke’s conduct required the exercise of judgment and discretion that is the type of conduct covered by official immunity. See Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997), review denied (Minn. May 20, 1997). Upon observing that “water had pooled onto the [boulevard] surface to a depth of several inches . . . [and] was creating a traffic hazard and flooding,” Jahnke made a decision about how to handle the situation. Jahnke stated:
I felt we had an emergency situation which required immediate action to alleviate a safety hazard to the users of the [boulevard] and the pedestrian bike path. It was my judgment that the danger to the users of the [boulevard] was too great to permit the water to remain on the [boulevard] and simply evaporate. I felt the fastest, least intrusive way to do this was for Mr. Vezina and me to flip back the newly laid sod to create the drainway that would permit the surface water to drain from the [boulevard].
As his explanation demonstrates, Jahnke’s decision to create a drainway on respondent’s property was not an absolute, certain, and imperative act involving merely the execution of a specific duty arising from fixed and designated facts. See Williamson, 245 N.W.2d at 244. Instead, Jahnke was required to exercise his judgment and discretion to determine what action was appropriate under the circumstances. As appellants point out, there were numerous other decisions Jahnke could have made, including that immediate drainage was unnecessary, that a survey was needed to determine where the highway right-of-way ended so as not to trespass on respondent’s property, or that even more extensive, immediate removal of the landscaping was required. Because Jahnke’s decision was not a ministerial act but, rather, involved the exercise of judgment and discretion, we conclude that the first element of official immunity is satisfied.
Our second inquiry is whether Jahnke’s conduct, although covered by official immunity, was malicious or willful and, therefore, not entitled to protection. See Davis, 559 N.W.2d at 122. The district court indirectly addressed this issue by stating:
[Appellants] did contend that the official duty to maintain road safety allowed them to remove the sod and gravel on July 25 to drain the roadway. They justified the decision because they perceived a serious safety issue that demanded immediate attention. The removal was largely in the county right-of-way. Public officials exercising discretionary functions, especially in emergencies, are entitled to immunity for trespass. Elwood v. Rice Co. The affidavit of bicyclist James Connor controverts [appellants’] “emergency” characterization, and raises a sufficient question of fact as to whether the situation rose to the level of an emergency situation. For this reason, [appellants’] request for summary judgment is denied.
Appellants argue that the district court erred by denying immunity on the grounds that a factual dispute exists as to the existence of an emergency. In support of this argument, appellants cite Watson, 553 N.W.2d at 415, where the supreme court specifically determined that “an emergency situation need not exist for official immunity to apply.” Certainly, courts have found official immunity to apply in non-emergency situations, as the existence of an emergency is not a necessary requirement of official immunity. See, e.g., Rico v. State, 472 N.W.2d 100, 102 (Minn. 1991) (termination of employee covered by official immunity); Elwood, 423 N.W.2d at 677 (stating that for official immunity to apply, official must exercise judgment and discretion and not be guilty of a willful or malicious wrong).
But it does not necessarily follow that the district court erred in denying summary judgment based on the factual dispute over the existence of an emergency. We agree with respondent that the existence of an emergency is relevant to whether Jahnke acted willfully or with malice when trespassing on respondent’s property. In the immunity context, malice means “the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.” Rico, 472 N.W.2d at 107 (quotation omitted). To defeat summary judgment, respondent could not “rely on bare allegations of malice,” but was instead required to “present specific facts evidencing bad faith.” Reuter v. City of New Hope, 449 N.W.2d 745, 751 (Minn. App. 1990) (quotation omitted), review denied (Minn. Feb. 28, 1990).
Here, respondent met this burden by demonstrating through his own affidavit that appellants’ actions were unreasonable and unnecessary and by providing additional evidence through Connor’s affidavit that no emergency existed. In so doing, respondent raised a genuine issue of material fact as to whether Jahnke’s actions were actually in response to an emergency, or whether they were, as respondent alleges, “unjustified and thus done with malice.” Because a genuine issue of material fact exists as to the appropriateness of Jahnke’s actions, official immunity does not bar respondent’s claim. See Costilla v. State, 571 N.W.2d 587, 596 (Minn. App. 1997), review denied (Minn. Jan. 28, 1998). Therefore, we conclude that the district court did not err by denying summary judgment to appellants on respondent’s trespass claim.
 According to appellants’ surveyor, Ronald Meyer, between respondent’s property and the paved portion of the boulevard there is “an area of unpaved right-of-way varying from 13 feet to 21 feet in width, with the narrowest point adjacent to [respondent’s] residence, and the widest point adjacent to the western boundary.” The surveyor states that respondent’s landscaping encroaches upon the right-of-way, which is “under the jurisdiction of Ramsey County.”
 James Connor, a resident in the area, provided an affidavit in which he stated that since 1996, he has biked, walked or jogged past respondent’s property every day. Connor stated that on July 25, 2002, he biked past the property in the early afternoon on his way home from work and saw some men standing on the vacant portion of respondent’s property. According to Connor, “it was not raining at the time and there was no particularly memorable amount of water in the traffic lanes . . . [and the] water in the bike path was not significantly different than puddles [he had] encountered on numerous other occasions elsewhere over the years.” Connor also stated that early in the evening, respondent asked him to come and see what appellants had done to his property. Connor recalls that “a disgusting ditch had been dug on [respondent’s] property across what I knew to have been his newly laid sod.” According to Connor, the ditch had not been dug as of the time he biked by the property.