This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Curt Nordlie, et al.,
Filed April 11, 2006
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,
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.
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.
Curt and Catherine Nordlie (Nordlies) and Tim and Ruth Borell own homes in the same
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,
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,
I. Did the district court err by granting the city’s motion for summary judgment based on statutory immunity?
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 (
immunity . . . does not protect all acts of judgment by government
agents.” Steinke v. City of
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.
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
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.
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 (
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.
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 (
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
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 (
The circumstances here
do not involve an “absolute, certain, and imperative” duty “arising from fixed
and designated facts.” Wiederholt v. City of
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.
v. City of
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
city failed to exercise reasonable care tends to be a question for the
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.