This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Curt Nordlie, et al.,





City of Maple Lake,



Filed April 11, 2006


Halbrooks, Judge



Wright County District Court

File No. C3-04-3499



Richard I. Diamond, Jesse H. Kibort, Richard I. Diamond, P.A., 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305 (for appellants)


John E. Hennen, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103 (for respondent)



            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants challenge the district court’s grant of respondent’s summary judgment motion on several bases.  Appellants allege that respondent is not entitled to statutory immunity because it did not engage in a discretionary function.  Appellants also claim that respondent is not entitled to official immunity because its employees did not engage in discretionary acts.  Finally, appellants argue that the district court erred in determining that there are no genuine issues of material fact regarding their claim of negligence.  Because respondent did not provide sufficient proof that it engaged in planning or policy-making when it determined whether to upgrade its sewer system, respondent is not entitled to statutory immunity.  But because respondent’s employees’ actions were discretionary, we affirm the grant of vicarious official immunity and because we conclude that there are no material facts in dispute, respondent is entitled to summary judgment, and we affirm.


            Appellants Curt and Catherine Nordlie (Nordlies) and Tim and Ruth Borell own homes in the same neighborhood in Maple Lake.  The Nordlies had an incident of sewage backup in their basement soon after they purchased their home in September 1991.  The backup occurred during a rainstorm due to a defect in respondent City of Maple Lake’s (city) lift station that services the Nordlies’ neighborhood.  Upon inspection, city maintenance workers discovered that the lift station’s circuit was tripped, leaving the station without power.  As a result, the pump was not pumping, and the alarms did not sound.  Once that condition was repaired, the pump started working, and the sewage flow into the Nordlies’ basement was stopped. 

Following this incident, the city “formalized a practice of required daily lift station inspections rather than the previous informal or ‘as needed’ inspections.”  The city contends that this practice enables it to know whether the lifts and alarms are in proper working order.

On June 24-25, 2002, Maple Lake experienced a severe rainstorm that caused flash flooding.  The rain total for the storm amounted to seven inches within a 24-hour period with six inches falling within six hours.  (This storm has been referred to as a “100-year storm” because of the amount of rain that fell within the time period.)  As a result of the volume, the city’s storm sewers were unable to contain the water and overflow into the city’s sanitary sewers resulted.  The sanitary sewers were also unable to contain the excess water, and raw sewage backed up into appellants’ and other’s basements.  The city stated that the backup was not the fault of the sewer system, as the lift station servicing appellants’ neighborhood was operating properly.  The system simply could not keep up with the amount of water that was inundating it.

During the storm, Jerry Sawatzke, the city’s head of maintenance, was responsible for responding to the situation.  That night, he helped the Nordlies push sewage out of their basement, obtained additional city employees to assist in various roles, and engaged the Fire Department to help pump water out of the lift station so that the water level would recede and the sewage backup into residents’ basements could be stopped.  Additionally, city employees checked other lift stations, not just the one servicing appellants’ neighborhood, and responded to the emergencies, as other lift stations were out of power or completely submerged.  Sawatzke believed that, due to the volume of rain, there was not much more that he could do to alleviate the situation.

            In September 2002, the Nordlies again experienced a backup of raw sewage in their basement because of heavy rains.  On that occasion, it appears that only the Nordlies’ basement was affected.  The city does not address this incident in its brief to this court or in either of its memoranda supporting its motion for summary judgment.

            Appellants subsequently filed a complaint, alleging that the city was negligent in the design, maintenance, and operation of the lift stations and for failing to take remedial action after the problem became known.  The city moved for summary judgment, and appellants made several arguments in opposition to that motion.  First, appellants contended that the city should have upgraded its sewer system and implemented certain programs—such as remote telemetry—that would have improved the system and prevented the backups.  The city asserted that whether to implement such programs was a discretionary decision and that, as a result, it is entitled to statutory immunity on that claim.

Second, appellants argued that city employees failed to act quickly enough and did not make proper decisions in their handling of the June 2002 rainstorm.  The city contended that because its employees were responding to an emergency or crisis, their actions and decisions are protected by official immunity, and, as a result, the city is entitled to vicarious official immunity.

Finally, appellants claim that they raised sufficient facts not only to defeat the immunity defenses, but to make a prima facie case of negligence and that the district court failed to consider all of the facts surrounding that claim.  The city responded that, even taking appellants’ assertions and evidence in their favor, they did not provide sufficient facts to show that the city was negligent, as the lift station was in proper working order.

The district court granted the city’s motion for summary judgment on the grounds that the city is entitled to both statutory and vicarious official immunity and because there are no disputed issues of material fact and the city was not negligent in the maintenance of its sewer system as a matter of law.  This appeal follows. 


“On appeal from summary judgment we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  For purposes of a summary-judgment motion, “[a] fact is material if its resolution will affect the outcome of the case.”  Bebo v. Delander, 632 N.W.2d 732, 737 (Minn. App. 2001) (quotation omitted), review denied (Minn. Oct. 16, 2001).  “[T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I.          Did the district court err by granting the city’s motion for summary judgment based on statutory immunity?


“[M]unicipalities are generally liable for the torts of their employees if the tort is committed within the scope of employment.”  Schroeder v. St. Louis County, 708 N.W.2d 497, 503 (Minn. 2006); see Minn. Stat. § 466.02 (2004).  But there are exceptions under which municipalities are immune.  Minn. Stat. § 466.03 (2004).  One of those exceptions is when a municipality is entitled to statutory discretionary immunity, commonly referred to simply as statutory immunity, which applies when a “claim [is] based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”  Id., subd. 6.  “The purpose of statutory immunity is to protect the legislative and executive branches from judicial second-guessing of certain policy-making activities through the medium of tort actions.”  Schroeder, 708 N.W.2d at 503.  Thus, “[w]hether governmental action is protected by statutory immunity is a question of law, which this court reviews de novo,” and we interpret the discretionary function exception narrowly.  Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn. 2000).

“Discretionary immunity . . . does not protect all acts of judgment by government agents.”  Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994).  “In defining what is a discretionary act, [courts] have made a general distinction between operational and planning decisions.”  Id. (quotations omitted).  Planning-level functions “require evaluating such factors as the financial, political, economic, and social effects of a given plan.”  Unzen v. City of Duluth, 683 N.W.2d 875, 882 (Minn. App. 2004), review denied (Minn. Oct. 27, 2004).  “Operational-level decisions, in contrast, are those actions involving the ordinary, day-to-day operations of the government.”  Id.  Only planning-level functions are protected by statutory immunity.  Id.  A court’s first step in determining whether conduct is protected by statutory immunity is to “identify the conduct at issue.”  Conlin, 605 N.W.2d at 400.

The burden rests with the city to prove that it engaged in protected planning-level activities that involved social, political, or economic consideration and is, therefore, entitled to immunity.  Conlin, 605 N.W.2d at 402.  For the city is entitled to immunity “only when it can produce evidence” that its actions were the result of planning and policy-making.  Id.

We have held that “a ‘city’s decision not to remedy’ a defect in its sewer system ‘was clearly of a policy-making nature.’”  Christopherson v. City of Albert Lea, 623 N.W.2d 272, 276 (Minn. App. 2001) (quoting Chabot v. City of Sauk Rapids, 422 N.W.2d 708, 710-11 (Minn. 1988)).  In that case, the city’s sewer system was unable to keep up with flash flooding that “was so extensive that the lift stations could not accommodate the excess water draining into the sewers.  Although the sanitary-sewer-lift stations operated properly, some could not keep up with [the] rainfall.”  Id. at 274.  Several years prior to the storm, the city had ordered an independent engineering study to determine whether the sewer system had excessive infiltration or inflow of storm water.  Id.  The engineering firm’s recommendation, which the city adopted, was that it was most cost-effective to provide wastewater facilities to transport and treat water rather than attempt to reduce infiltration or inflow levels.  Id.  We held that because the city was entitled to discretionary immunity for that decision, it was not liable for the damage caused by the sewer backup to homes in the low-lying areas.  Id. at 276-77.

Similarly, in Chabot, the city commissioned an engineering study of its sewer system.  422 N.W.2d at 709.  The final report recommended certain upgrades, which the city had not implemented when an extraordinary rainfall occurred, flooding a resident’s home.  Id.  A city employee testified that it was not economically feasible to implement the recommendations in a short time span and that the city had previously attempted to upgrade a portion of its sewer system, which was “met with unprecedented public opposition.”  Id.  The supreme court determined that the city had engaged in a discretionary function and, therefore, was immune.  Id. at 711.

The conduct in question here is the city’s decision not to upgrade its sewer system or install a remote telemetry program.  The city asserts that it engaged in planning-level functions in making its decision.  But as the supreme court held in Conlin, courts cannot “allow[] minimal averments in an affidavit to be sufficient evidence of a planning decision, [because] there is a risk that professional or scientific decisions, as well as nondecisions, will be bootstrapped into planning decisions and thus protected by statutory immunity.”  605 N.W.2d at 403. 

[T]he simple conclusory labeling of government conduct as “operational” or “planning” is not helpful. . . .  [W]e [have] made clear that certain government conduct is protected under the discretionary function exception not simply because it is identified as a planning decision.  Rather, it is immune because the specific function involves policy-making that can be made only by the legislative or executive branch of government.


Chabot, 422 N.W.2d at 710-11 (citations omitted).

Here, the city submitted no evidence, other than conclusory statements, to meet its burden to show that those decisions were the result of balancing the costs and benefits of the program or that it engaged in a policy-making analysis.  The city repeats that it “clearly” considered certain factors, but does not cite to the record to establish such an analysis.  The city merely states that the remote telemetry program was too expensive and that it was a discretionary decision whether to upgrade the sewer system to increase capacity, and so it decided against those options.    

While the decision to upgrade its sewer system is typically one that would entitle the city to immunity, summary judgment here is inappropriate, and the city is not entitled to immunity on this ground because there is nothing in the record that reflects the city’s planning and analysis in support of its decision. 

II.        Did the district court err by granting the city’s motion for summary judgment based on official immunity?


“A district court’s decision regarding governmental immunity is immediately reviewable by this court.” Meier v. City of Columbia Heights, 686 N.W.2d 858, 863 (Minn. App. 2004)(citing Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn. 1986), review denied (Minn. Dec. 14, 2004).  “The applicability of immunity is a question of law, which this court reviews de novo.”  Id. (citing Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996)).

The purpose of official immunity is to “protect[] public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties.”  Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988).  The first step in determining whether city employees are protected by official immunity is to ascertain whether they were performing a discretionary or ministerial act.  See Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998) (noting that the critical issue in official immunity claims is whether the conduct is discretionary or ministerial).

Ministerial functions, which are unprotected, are acts that are “absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.”  Watson v. Metro. Transit Comm’n, 553 N.W.2d 406, 414 (Minn. 1996) (quotation omitted).  In other words, “the duty must dictate the scope of the employee’s conduct.”  Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 659 (Minn. 2004).“[O]fficial immunity does not protect officials when they are charged with the execution of ministerial, rather than discretionary, functions, that is, where ‘independent action’ is neither required nor desired.”  Id. at 655.  Rather, official immunity protects officials “charged by law with duties which call for the exercise of [their] judgment or discretion.”  Id.(quotation omitted).

If an act is ministerial, this court must determine whether or not the duty to perform that act was properly executed.  See id. at 660 (stating that “[t]he ministerial-conduct bar to official immunity arises when the allegation is that a ministerial duty was either not performed or was performed negligently”).  If an act is discretionary, official immunity attaches unless the conduct was malicious or willful.  See Bailey v. City of St. Paul, 678 N.W.2d 697, 700-01 (Minn. App. 2004) (noting that public officials performing discretionary actions in the course of their official duties are protected from liability by official immunity unless those acts are malicious or willful), review denied (Minn. July 20, 2004).

The supreme court has held that government employees’ actions during an emergency are protected because the employees “must exercise significant independent judgment.”  Watson, 553 N.W.2d at 415 (citing Elwood, 423 N.W.2d at 678-79).  When an official must make decisions with little time for reflection and on the basis of incomplete information, “[i]t is difficult to think of a situation where the exercise of significant, independent judgment and discretion would be more required.”  Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992).

The circumstances here do not involve an “absolute, certain, and imperative” duty “arising from fixed and designated facts.”  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (quotation omitted).  Instead, city employees were reacting and responding to a storm involving record amounts of rain.  The circumstances required Sawatzke to make decisions about how best to respond.  He opted to help residents pump out their basements, calling in additional city employees to help in the response, seeking assistance from other city departments to pump excess water from lift stations, and so on.

Sawatzke and the other city employees did not have a policy mandating their actions and reactions under these circumstances.  They had to continually assess and reassess the situation in order to make decisions to lessen or stop further damage during an ever-changing event.  This strikes us as the type of emergency or crisis situation in which official immunity is meant to apply, so that the city employees can discharge their duties as they believe them to be effective and necessary under the circumstances.

Thus, the next question we must address is whether the city is entitled to vicarious official immunity based on its employees’ official immunity.  “[V]icarious official immunity protects the government entity from suit based on the official immunity of its employee.”  Wiederholt, 581 N.W.2d at 316.  “Generally, if the employee is found to have immunity, the claim against the municipal employer has been dismissed without any explanation.”  Pletan, 494 N.W.2d at 42.  Moreover, courts may grant vicarious official immunity to a municipality regardless of whether the employee was named as a party to the suit, because to hold otherwise “would allow plaintiffs to defeat immunity by declining to name the official as a defendant.”  Wiederholt, 581 N.W.2d at 317. 

Courts do not automatically grant vicarious official immunity whenever an employee’s conduct is protected by official immunity.  Meier, 686 N.W.2d at 866.  But we will grant vicarious official immunity “when failure to grant it would focus stifling attention on an official’s performance to the serious detriment of that performance.”  Schroeder, 708 N.W.2d at 508 (quotations omitted).

Although appellants did not name Sawatzke or the other city employees as defendants, that is not a hindrance to a conclusion that the city has vicarious official immunity.  The actions of the employees are of the type that if immunity were denied, the failure to extend immunity would inhibit employees in the future.  Sawatzke and others needed to approach this emergency with the freedom to act in a manner that, in their professional judgment, was most appropriate.  If the employees are afraid that, although their actions are protected, they might subject their employer to liability, the employees may be less inclined to act in the future.  Because we conclude that the city is entitled to vicarious official immunity, the district court did not err by granting the city’s motion for summary judgment on this ground.

III.       Did the district court err by determining that there were no genuine issues of material fact regarding the city’s negligence claim?


In order to make a prima facie case of negligence in a sewage backup case, the plaintiff must prove that the defendant owed plaintiff a duty, that there was a breach of that duty, that the breach proximately caused the plaintiff’s damages, and that the plaintiff did in fact suffer injury.


Jindra v. City of St. Anthony, 533 N.W.2d 641, 643 (Minn. App. 1995).  A city is liable for damages caused by its sewer system only if the damages result “from its failure to exercise ordinary or reasonable care to keep them in repair and free from obstructions.”  Pettinger v. Village of Winnebago, 239 Minn. 156, 162, 58 N.W.2d 325, 329 (1953). 

But a city must first have notice that there is a defect in the sewer system or that there has been a sewage backup.  Jindra, 533 N.W.2d at 644.  That notice can be either actual or constructive.  Id.  “Constructive notice arises when a condition has existed for such a period of time that a municipality in the use of reasonable care should have discovered the condition.”  Id.

Whether a city failed to exercise reasonable care tends to be a question for the jury.  Id.  In addition, “[c]ausation is generally a question of fact . . . [and] only becomes a question of law where different minds can reasonably arrive at only one result.”  Paidar v. Hughes, 615 N.W.2d 276, 281 (Minn. 2000) (quotation omitted).  Appellants contend that the city was negligent in its maintenance of the system by not exercising reasonable care.  As proof, appellants cite three separate incidents of sewage backup; one in 1991 and two during the summer of 2002.  This, appellants assert, provided the city with actual and constructive notice of a defect in the sewer system.

The city concedes that the incident in 1991 was the result of a defect in the lift station, as the circuit breaker was tripped and the station was without power.  But appellants provide no facts or other evidence to establish that the two incidents in 2002 were in any way caused by a defect or obstruction in the city’s sewer system or were the result of negligent maintenance on the part of the city.  Moreover, a failure to upgrade the sewer system does not constitute negligent maintenance of the system currently in place.  Appellants seem to argue that, because the lift station malfunctioned once, it must have malfunctioned again, but provide no evidence in support of this assertion.

It is important to note that following the 1991 incident, and arguably as a result of that incident, the city “formalized a practice of required daily lift station inspections rather than the previous informal or ‘as needed’ inspections.”  According to Sawatzke’s deposition testimony, this practice allows the city to know whether the lifts and alarms are in proper working order and “make sure that the pump was not tripped out.”

The district court ruled that the city “exercised ordinary and reasonable care to keep the city sewers in repair and free from obstructions.”  In addition, it stated that the city “did not negligently maintain the city sewer system nor did negligent maintenance cause or contribute to the damages.”  Although these statements are contained in a section of the district court’s order entitled “Findings of Fact,” and appellants argue that the district court erroneously made findings of fact on summary judgment, we conclude that the district court did not actually engage in a fact-finding process.  Rather, the district court determined that these were either undisputed facts or facts that the city presented that appellants did not contradict.

Thus, because appellants provide no evidence that the sewer system contained a defect, was malfunctioning, or that the city negligently maintained the sewer system, the district court did not err by finding that there are no genuine issues of material fact and by granting the city’s motion for summary judgment on this basis.