This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994)
                          State of Minnesota
                            in Court of Appeals

     Universal Circuits, Inc., et al.,



K & R Design, Ltd., et al.,



Frank Richardson, et al., defendants and

third-party plaintiffs,


Cedar Creek Construction Co., et al.,

Third-party Defendants,

City of Maple Grove,

Filed October 15, 1996
Harten, Judge

Hennepin County District Court

File No. C5-3067

John M. Harens, James E. Blaney, Moore, Costello & Hart, P.L.L.P., 55 East
Fifth Street, 1400 Norwest Center, St. Paul, MN 55101-1792 (for Appellants)

George C. Hoff, Paula A. Callies, Hoff, Barry & Kuderer, P.A., Suite 260,
7901 Flying Cloud Dr., Eden Prairie, MN 55344-7914 (for Respondent City of
Maple Grove)

Considered and decided by Harten, Presiding Judge, Crippen, Judge, and
Thoreen, Judge.(1)
        [Footnote] (1Retired judge of the district court,
        serving as judge of the Minnesota Court of Appeals
        by appointment pursuant to Minn. Const. art. VI,
        § 10.
                        Unpublished Opinion

HARTEN, Judge (Hon. Franklin J. Knoll, District Court Trial Judge)

Appellants Frank Richardson and ArchDesign, Ltd. challenge the grant of
partial summary judgment to respondent City of Maple Grove based on
statutory immunity pursuant to Minn. Stat. § 466.03, subd. 4 (1994). We

Universal Circuits, Inc. (Universal) constructed a manufacturing facility
in the City of Maple Grove (city). Appellants ArchDesign, Ltd. and Frank
Richardson designed the facility. In 1992, the facility was damaged by a
fire. During its subsequent fire investigation, the city noted design
defects. The city then required that structural modifications be made to
bring the building into compliance with applicable building codes.

Universal, among others, then sued appellants claiming negligent design of
the facility. Appellants filed a third party complaint against the city for
indemnity and contribution based on the city's issuance of a building
permit and certificate of occupancy for the facility. Appellants alleged
that the city actively participated in revising the building design to meet

the city's interpretation of the 1982 Minnesota Building Code. The city
moved for summary judgment, claiming that statutory immunity(1)
        [Footnote] (1)Following the lead of the supreme
        court, we will use the term ``statutory immunity''
        to describe immunity pursuant to Minn. Stat. §
        466.03, subd. 6 (1994), that previously has been
        variously referred to as statutory discretionary
        function immunity, discretionary function immunity,
        statutory discretionary immunity, or discretionary
        immunity. See Johnson v. State, ___ N.W.2d
        ___, ___ n.1 (Minn. Aug. 29, 1996); Watson v.
        Metropolitan Transit Comm'n, ___ N.W.2d ___, ___
        n.1 (Minn. Aug. 29, 1996).

bars liability for damages allegedly resulting from the actions of its
building inspector. The district court granted partial summary judgment for
the city, finding that appellants failed to establish genuine issues of
material fact that the city had acted outside its allowed discretion in the
decision-making process.

Whether statutory immunity applies on established facts is a question of
law for an appellate court to review without deference to the district
court. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn.
1989). This court is not bound by the district court's decision on purely
legal questions, but must review such questions de novo. Frost-Benco
Elec. Ass'n. v. Minnesota Pub. Utils. Comm'n., 358 N.W.2d 639, 642
(Minn. 1984).
        On an 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). On appeal,
the 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).

1. Burden of Proof
Appellants claim that the district court impermissibly shifted the
burden of proof to appellants in considering the city's motion for summary
judgment. The city bears the initial burden to demonstrate ``that it is
immune under the discretionary function exception.'' Nusbaum v. Blue
Earth County, 422 N.W.2d 713, 722 n.6 (Minn. 1988). The party opposing
summary judgment has a burden to ``demonstrate at the time the motion is
made that specific facts are in existence which create a genuine issue for
trial.'' Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d
853, 855 (Minn. 1986) (party must provide specific evidence showing that
material fact issues remain for trial). The issue on appeal is whether
appellants have demonstrated any specific facts that create an issue for
trial. The fact that the district court may have shifted the burden of
proof on this matter is harmless in this context and not grounds for
2. Statutory Immunity
The city moved for summary judgment based on statutory immunity.
Municipalities are immune from ``[a]ny claim based upon the performance or
failure to exercise or perform a discretionary function or duty, whether or
not the discretion is abused.'' Minn. Stat. 𨸪.03, subd. 6. Minnesota
courts have consistently held that, because the issuance of building
permits and certificates of occupancy and the interpretation of building
codes are discretionary acts, municipalities are immune from tort liability
for those acts. Anderson v. City of Minneapolis, 287 Minn. 287, 289,
178 N.W.2d 215, 217 (1970) (issuance of building permits protected by
statutory immunity); Masonick v. J.P. Homes, Inc., 494 N.W.2d 910,

913 (Minn. App. 1993) (issuance of occupancy certificates is protected
discretionary function).

In Snyder, the supreme court reaffirmed the general rule that the
issuance of a building permit is a protected discretionary function. The
supreme court stated that the primary consideration in determining whether
statutory immunity applies is whether the legislature intended to immunize
the particular governmental function that gave rise to the tort action.
Snyder, 441 N.W.2d at 787 (citing Nusbaum, 422 N.W.2d at
719). The supreme court noted that
        more than eighteen years have passed since our
        decision in Anderson, ample time for the
        legislature to have corrected any misapprehension
        this court may have entertained in Anderson
        regarding legislative intent to protect
        municipalities from liability in the issuance of
        building permits. Accordingly, we have no occasion
        to question the continuing viability of


Nevertheless, appellants argue that, although the issuance of building
and occupancy permits is a discretionary function, here the city did more
than that. Appellants contend that the City Inspector, LeRoy Paulson, who
reviewed the building permit applications, exceeded the city's
discretionary role.

First, appellants argue that Paulson identified the structure corridors as
a code problem and indicated that they must be brought into compliance with
the Uniform Building Code. We conclude that these actions merely
demonstrate that the city required appellants to comply with the code and
pointed out deficiencies in the building plans.

Second, appellants contend that when Paulson told the construction site
supervisor that the ``corridor ceilings had to comply with fire ratings in
the code,'' the city thereby specified the manner of construction. But even
if Paulson specified the type of corridor ceilings to be constructed and
was incorrect in his code interpretation, the city is protected from
liability by statutory immunity. In Anderson, the supreme court
noted that even if the proposed use of the land had been so clearly illegal
as to eliminate any city discretion, the city would still be immune from
liability. Anderson, 287 Minn. at 289, 178 N.W.2d at 217.
Furthermore, the court noted that the permit recipient
        and those who act for him are charged with the
        knowledge of the laws regulating the granting of the
        permit and any expense incurred is at the owner's
        risk, at least in so far as the city is concerned.

Id. If a city is immune from liability even if one of its officials
issues an illegal permit, the city cannot be held liable here for the
lesser claim of allegedly misconstruing the building code. Appellants have
an independent duty to know the code as it relates to their construction

Moreover, the evidence does not permit an inference that the city assumed a
direct duty toward appellants, such as was found in Gilbert v. Billman
Constr., Inc., 371 N.W.2d 542, 546-47 (Minn. 1985). In Gilbert,
the supreme court concluded that the district court properly submitted
a negligence issue to the jury where the evidence demonstrated that the
county assumed a direct duty to the plaintiffs because the county
sanitarian had designed the approved plans. The sanitarian

        himself drew a sketch * * * of the septic tank, * *
        *. He included this sketch with a permit he sent to
        [plaintiff], expressly approving ``construction of
        this system in accordance with these approved

Id.  Appellants point to no similar evidence tending to establish
that the city assumed a direct duty to them. There is no evidence
indicating that the city actually designed the corridors. The city simply
required that the building plans comply with its interpretation of the
building codes. Appellant's emphasis on Gilbert is misplaced for
other reasons. Gilbert involved the ``public duty'' doctrine, not statutory
immunity, as here. There, the city selected for approval only one of a
number of possible septic system designs; here, there were essentially but
two possible corridor designs.

Finally, appellants argue that the city is immune from liability only for
the actual issuance of permit documents, but the city is not immune from an
action for incorrect code interpretation. This argument is inconsistent
with the supreme court's decision in Anderson, which recognized that
the approval of building permits involves
        an exercise of discretion in the sense that the
        city's employee had to make a judgment as to whether
        plans submitted in support of the application for
        the permit constituted a permissible use of the
        property in the area involved.

Anderson, 287 Minn. at 288, 178 N.W.2d at 217. If a city is
protected by discretionary immunity in determining whether a plan complies
with the building code, a city's code interpretations necessarily are
protected. Moreover, a city cannot be held liable merely because its
officials fulfill their duty to discuss and identify building code
violations with permit applicants. Here, the city's interpretation of the
code and determination of whether the proposed plan complied with the code
is the very type of conduct that the Anderson court intended to

In the final analysis, if Paulson's act of advising appellants of his
interpretation of the building code is not a protected discretionary
function, the city would become an insurer of construction:
        If we were to hold that the issuance of a
        certificate of occupancy was not a protected
        discretionary function, we would essentially be
        mandating that municipalities become insurers of
        construction. This is contrary to the purpose
        underlying the enactment and enforcement of building
        codes and ordinances. ``Building codes, the issuance
        of building permits, and building inspections * * *
        are not meant to be an insurance policy by which the
        municipality guarantees that each building is in
        compliance with the building codes and zoning

Masonick, 494 N.W.2d at 913 (quoting Hoffert v. Owatonna Inn
Towne Motel, Inc., 293 Minn. 220, 223, 199 N.W.2d 158, 160 (1972)
(discussing city's duty to use due care in issuing permits) ).

We conclude that the district court properly granted partial summary
judgment for the city.