This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Gary Schmitz, et al.,
Filed July 24, 2007
Dakota County District Court
File No. C1-05-8558
Robert B. Bauer, Kristine K. Nogosek, Jessica L. Sanborn, Severson, Sheldon, Dougherty & Molenda, P.A., 7300 West 147th Street, Suite 600, Apple Valley, Minnesota 55124 (for appellants)
Jana O’Leary Sullivan, League of
Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Gary and Doris Schmitz challenge the district court’s grant of summary judgment
in favor of respondent City of
In April 2003, respondent approved
The contract specified that dewatering, which is the removal of groundwater by pumping to lower the water table, might be necessary to excavate the trench and install the pipe, which had to be laid in a dry condition before backfill was added. The contract called for the maintenance of the groundwater level at one foot below the pipe invert; it required measuring the rate of flow from the dewatering pumps at the beginning of the process and once per week thereafter, and keeping a daily log of hours pumped.
general contractor contracted with a subcontractor to design and implement the
dewatering project. In the permit notification
form required for dewatering, the city and its contractor estimated that 44
million gallons of water would be pumped out to lower the water table 10 to 15
feet. This was achieved by drilling a
series of 30-foot-deep wells, installing pumps, and laying pipes to discharge
the pumped groundwater to the
After the dewatering process was completed, significant cracks appeared in the foundation walls, chimney, interior walls, and basement floor of appellants’ house. According to appellants’ measurements, the western side of their house settled an estimated two and one-half inches and the wide crack in the basement floor was described as essentially splitting their house in half. Appellants informed the city, the contractor, the subcontractor, and their respective insurance companies about the damage to their home. Each denied liability. Appellants consulted with an engineering firm, which concluded that the settling of the ground under appellants’ home due to the dewatering probably caused the damage.
In June 2005, appellants initiated this action against respondent, alleging that the dewatering caused the damage to their home. They sought damages for negligence, and, in the alternative, brought a petition for a writ of mandamus for inverse condemnation.
Respondent moved for summary judgment. For purposes of summary judgment, causation and damages were not in dispute. The district court granted respondent’s motion for summary judgment, concluding that (1) respondent was statutorily immune from liability; (2) respondent could not be held vicariously liable for the independent contractors’ conduct; and (3) inverse condemnation was not appropriate. This appeal follows.
“On appeal from a grant of summary
judgment, the role of this court is to review whether genuine issues of
material fact exist and whether the trial court erred in its application of the
law.” Zimmer v. Carlton County Co-op Power Ass’n, 483 N.W.2d 511, 513
(Minn. App. 1992), review denied
(Minn. Jun. 10, 1992). “[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 (
argue that the district court erred by concluding that respondent was
statutorily immune from their negligence claim.
“The existence of governmental immunity is purely a question of law,
distinct from a defense to the merits of a plaintiff’s claim.” Unzen
v. City of Duluth, 683 N.W.2d 875, 878 (Minn. App. 2004), review denied (
municipalities are subject to tort liability.
most acts by municipalities require some exercise of judgment and discretion,
not every governmental act is entitled to immunity protection. Angell
determining whether immunity is appropriate, the first step is to identify the
challenged conduct. Conlin, 605 N.W.2d at 400.
Appellants do not dispute that respondent’s decisions to proceed with
the project and to contract with the general contractor are protected by
immunity. See Chabot v. City of Sauk Rapids, 422 N.W.2d 708, 710–11 (
The district court ruled that “the city relied entirely on the professional and scientific judgment of its independent contractors to perform the necessary dewatering.” In effect, the court ruled that the city itself did not engage in any non-immunized acts for which it could be held liable.
Appellants argue that dewatering was an operational act that did not involve weighing social, political, or economic issues. Respondent maintains that dewatering was part of the overall decision to proceed with the project so that it is immunized. While the decision to dewater as part of the overall decision to proceed with the project is immunized, appellants here are challenging the implementation of the dewatering project, which they claim involved the application of scientific or technical skills, which is not immunized. Angell, 578 N.W.2d at 346. The issue for appellants, as the district court recognized, is whether respondent, as opposed to its contractor and subcontractor, engaged in this conduct, and whether the general rule that an employer is not liable for the acts of its independent contractors protects respondent from liability.
First, appellants argue that the district court erroneously found that the city relied solely on the judgment of its contractors for the dewatering process, and they contend that the engineers who designed the project were acting as the city’s agents or employees. But appellants are not alleging negligent design. Furthermore, according to the deposition of respondent’s city engineer, the subcontractor designed the dewatering project.
Next, appellants contend that the contract specified that the contractor was to dewater before laying the sewer lines, and the contractor and the subcontractor were following the instructions of the respondent. This argument is relevant to whether respondent’s control over the contractor creates an exception to an employer’s nonliability for independent contractors, rather than the issue of immunity and we will address this below.
Finally, we address appellants’ broader argument that respondent failed to ensure that the project was completed so as not to injure their property. First, this is more relevant to an exception to an employer’s nonliability for the conduct of an independent contractor, discussed below, rather than immunity. Furthermore, decisions on supervision are considered policy-level activities protected by statutory immunity. Fear, 634 N.W.2d at 212. Consequently, any claims appellants may have of negligent supervision are subject to immunity.
here, the evidence shows that one of respondent’s agents visited the dewatering
site almost daily, while another visited periodically. Respondent failed to connect their visits to
any evaluation or balancing of social, political, or economical considerations.
Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (
next argue that the district court erred as a matter of law by concluding that none
of the exceptions to the general rule of nonliability of employers for the acts
of its independent contractors applied. Generally,
“an employer of an independent contractor is not liable for physical harm
caused to another by an act or omission of the contractor or his servants.”
Consequently, we must examine whether respondent, as the employer of independent contractors who used nonimmunized scientific or technical expertise in conducting the dewatering, is subject to one of these exceptions to the general rule of employers’ nonliability for the acts of their independent contractors.
First, the so-called “control exception” provides that “an employer of an independent contractor may be found negligent when it retains detailed control over a project and then fails to exercise reasonably careful supervision over that project.” Anderson, 693 N.W.2d at 189; see Unzen, 683 N.W.2d at 881 (noting that in determining whether one is an employee or an independent contractor, “the right of the employer to control the means and manner of employment” is the most important factor). Here, the district court concluded that “there is no evidence to suggest the city retained control over this project.” We agree.
Appellants rely on the language of the contract between respondent and its general contractor to support their argument that the respondent retained control, and they cite various provisions to support their argument. But we have examined the provisions concerning pumping and dewatering, which state that the contractor shall:
1. Provide draining, pumping, dewatering, and cleaning operations necessary to complete the Work.
2. Provide all necessary pumping to remove all surface water and groundwater from structures as required for the Work. Provide erosion control measures for discharge of water.
3. Protect Site and adjacent property to avoid damage.
Further, the contractor was to dewater as necessary, measure the rate of flow from the pumps weekly, and keep a daily log of the hours pumped.
These provisions do not support appellant’s argument. The district court properly concluded that the control exception to the general rule that the employer of a independent contractor is not liable for harm that the latter causes does not apply.
2. Dangerous conditions
Another exception to the nonliability of employers for the acts of independent contractors arises for “work which is specifically, peculiarly, or ‘inherently’ dangerous.” Lakeview Terrace Homeowners Ass’n v. Le Rivage, Inc., 498 N.W.2d 68, 71 (Minn. App. 1993) (citing Restatement (Second) of Torts § 409 & cmt. b (1965)); 18 Eugene McQuillin, The Law of Municipal Corporations § 53.76.30 (3d ed. rev. vol. 2003) (addressing exception as applied to municipalities). Under this exception, the municipality is liable when “the act which causes the injury is one which the contractor is employed to perform, and the injury results from the act of performance and not from the manner of performance.” McQuillin, supra, § 53.76.30 (footnote omitted).
nondelegable duty is imposed on an employer of an independent contractor “if
the trier of fact finds the ‘work’ involves either a ‘peculiar risk’ or a
‘special damage.’” Conover v. N. States Power Co., 313 N.W.2d 397, 404–05 (
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
Peculiar risk is defined as
special risks, peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done, against which a reasonable man would recognize the necessity of taking special precautions. . . . [It] does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk. It has reference only to a special, recognizable danger arising out of the work itself.
Restatement, supra, §§ 413 cmt. b (providing definition),
416 cmt. b (referring to definition of “peculiar risk” in section 413). Demolishing buildings, tearing down walls,
and performing excavation work are examples of work to which this definition is
Similarly, section 427, which is closely related to section 416, addressing negligence as to danger inherent in the work, provides:
One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.
Restatement, supra, § 427 & cmt. a. This section applies when the work “involves
a risk, recognizable in advance, of physical harm to others which is inherent
in the work itself, or normally to be expected in the ordinary course of the
usual or prescribed way of doing it, or that the employer has special reason to
contemplate such a risk under the particular circumstances under which the work
is to be done.”
The district court concluded that this exception did not apply because there was no evidence in the record “to suggest that the city had either actual or constructive notice that dewatering could cause property damage or that dewatering was either inherently dangerous or dangerous in the absence of special precautions.” We must disagree. First, the contract provides that as to pumping and dewatering, the contractor is to “Protect Site and adjacent property to avoid damage,” which implies that respondent was aware that damage to adjacent property could occur. Second, in the permit notification form, the city and its contractor estimated that some 44 million gallons of water would be removed, using wells that are 30 feet deep to lower the water some 10 to 15 feet. We believe that there is a genuine issue of material fact as to whether a reasonable person should be aware that displacing some 44 million gallons of water could pose a peculiar risk of harm requiring special precautions, such as the displacement of earth in an excavation does. Restatement, supra, § 413 cmt. c. Similarly, pumping that amount of water could also be likened to the use of fire or high explosives, requiring “constant attention and skillful management” to avoid harm. Restatement, supra, § 427 cmt. c. Respondent arguably recognized this by its contractual requirement that the contractor was to measure the rate of flow from the pumps weekly and to keep a daily log of the hours pumped, as well as by the almost daily visits by respondent’s agent.
Respondent asserts that the language
of § 413 of the Restatement, which refers to “physical harm,” is arguably
limited to claims of personal injury.
But “physical harm” as used by the Restatement (Second) of Torts denotes
“the physical impairment of the human body, or of land or chattels.” Restatement, supra, § 7(3). “Where the
harm is impairment of the body, it is called ‘bodily harm.’” Restatement, supra, § 7 cmt. e.
Consequently, these sections are properly applied to damages for harm to
3. Non-delegable duty to public
next consider appellants’ argument that the district court erred when it concluded
that respondent “did not have a nondelegable duty” to protect appellants’
private property, except insofar as it related to keeping the surrounding
public areas and roads in reasonably safe condition. “The existence of a duty generally is a
question of law for [appellate courts] to decide de novo.”
on Chabot, appellants argue that the
city has a fundamental duty to repair, maintain, and operate a sewer. But in Chabot,
the court stated that while there is a duty to repair and maintain, there is no
duty to build a sewer. Chabot, 422 N.W.2d at 712. Further, as discussed above, a city decision
to improve a sewer system is immunized.
also argue that a person under a duty to the public has a non-delegable duty to
see that work is carefully performed to avoid injury to others. See Lamb
v. S. Unit Jehovah’s Witnesses, 232 Minn. 259, 263, 45 N.W.2d 403, 406
(1950) (addressing duty to public, when church engaged independent contractor
to connect church building to sewer main, trench on boulevard was filled in
negligently, and pedestrian on boulevard was injured). In such a case, when injurious consequences
must be expected to arise, an owner cannot relieve itself of liability by
4. Removal of lateral support
Finally, we briefly address appellants’ claim that there is a genuine issue of material fact as to whether respondent is liable for damages caused by removal of lateral support, on the theory that this was the result of the dewatering.
person has the right to the lateral support of the land adjoining his and is
entitled to damages for its removal.” Brewitz v. City of
argue that under Restatement (Second) of Torts § 422A (1965), the employer of
an independent contractor in these circumstances is subject to the same
liability for the contractor’s withdrawal of lateral support as if the employer
had retained the work in his own hands. Generally,
section 422A applies to damage to the land.
argue that the district court erred by concluding that appellants did not have
a cause of action for inverse condemnation.
When the government has taken property without formally using its
eminent-domain power, the property owner has a cause of action for inverse
condemnation. Alevizos v. Metro. Airports Comm’n, 298
for inverse condemnation must be brought to the court through an action in
mandamus.” Nolan & Nolan v. City of Eagan, 673 N.W.2d 487, 492 (Minn. App.
2003), review denied (
is an extraordinary remedy.” N. States Power Co. v.
the district court did not determine whether respondent’s conduct constituted a
taking. Instead, the district court
concluded that appellants did not petition for a writ of mandamus and that they
had an adequate remedy at law. Count II
of appellants’ complaint, however, is titled “Petition for Writ of Mandamus”
and seeks to compel inverse condemnation.
Without more specific findings by the district court, it is not possible
to determine why the district court did not consider this allegation to be
sufficient. In addition, the record
shows that the parties litigated this issue on summary judgment. Furthermore, a party can simultaneously
pursue a writ of mandamus and tort claims.
Nolan, 673 N.W.2d. at
494. This court has stated that judicial
efficiency and economy permit a landowner to “seek inverse condemnation by
petitioning for mandamus, and alternatively, file a complaint, particularly
where . . . it is uncertain whether the landowner will be successful in
establishing that a taking occurred.”
must also address the district court’s conclusion that appellants have an
adequate remedy at law against the independent contractors. Appellants could institute a negligence
action directly against the contractors or bring a legal claim that the
dewatering removed lateral support. See Brewitz, 256
 Appellants cite the provision in the construction
easement in which respondent agreed to restore their land to the condition in
which it existed before construction, and they argue that this imposed a duty
on respondent to protect their property from harm. Appellants did not seek recovery based on
this provision in their complaint, it does not appear that they raised it in
response to respondent’s summary-judgment motion, and the district court did
not address it in its decision.
Consequently, we decline to address this issue on appeal. See
Thiele v. Stich, 425 N.W.2d 580, 582 (