This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-961

A & L Superior Quality Sod, Inc.,

Respondent,

vs.

City of Lino Lakes,

Appellant,

Rice Creek Watershed District,

Respondent,

Arcon Construction Co., Inc.,

Defendant,

Toltz, King, Duvall, Anderson and

Associates, Incorporated,

Respondent,

Arcon Construction Co., Inc.,

Third-Party Plaintiff,

vs.

Dresel Contracting, Inc.,

third-party defendant,

Respondent.

Filed January 21, 1997

Affirmed

Klaphake, Judge

Anoka County District Court

File No. C0-94-5365

Jordan M. Lewis, Siegel, Brill, Greupner & Duffy, P.A., 1300 Washington Square, 100 Washington Avenue South, Minneapolis, MN 55401 (for Respondent A & L Superior Quality Sod)

Timothy R. Murphy, Geraghty, O'Loughlin & Kenney, P.A., 1400 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for Appellant City of Lino Lakes)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Respondent A & L Superior Quality Sod (A & L) sued a number of defendants, including appellant City of Lino Lakes (the City), for damages sustained when its sod fields flooded following a heavy rainstorm. A & L claimed that the flooding occurred when organic materials and debris washed down the sides of a storm sewer ditch and collected at a trashguard covering the end of a culvert. The culvert and trashguard recently had been installed by the city in connection with a road project, and were located approximately one mile downstream from A & L's fields.

The City appeals from the district court's partial denial of its motion for summary judgment. The court found as follows:

[T]he City is entitled to discretionary immunity on any claims by [A & L] which relate to the City's decision to install the 84 inch trashguard, but it is not entitled to discretionary immunity on claims by [A & L] which relate to the City's maintenance of the trashguards.

Because the City has failed to establish that it is entitled to statutory immunity with respect to its maintenance of the trashguards, we affirm.

D E C I S I O N

A municipality is entitled to statutory immunity from tort liability for "[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Minn. Stat. § 466.03, subd. 6 (1994). As an exception to the general rule of tort liability, statutory immunity must be narrowly construed. Holmquist v. State, 425 N.W.2d 230, 231 (Minn. 1988). The burden is on the municipality to produce evidence that its actions fall within this narrow exception. See Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994); Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988).

In our immunities analysis, we must identify and focus on the precise governmental conduct being challenged. See Nusbaum, 422 N.W.2d at 722. A plaintiff may identify the precise acts of governmental conduct being challenged at any time, as long as the defendant has sufficient notice. See Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 415-16 (Minn. 1996) (plaintiff enumerated precise acts of governmental conduct in memorandum in opposition to summary judgment). Thus, we review the denial of summary judgment as the matter was submitted to the district court. See id. at 416. In this case, A & L challenged the City's (1) decision to install trashguards, which the district court determined, and A & L concedes, was discretionary, protected conduct; and (2) failure to properly maintain the trashguard in question, which the district court determined was an unprotected, ministerial act.

The City presented evidence showing that the trashguards were installed pursuant to the City's Engineering Standards, which were adopted in 1985 and applied to all City street and utility projects. The City also submitted affidavits from its administrator, engineer, and public works director. All three affiants stated:

[The] City Engineering Standard requiring trash guards to be specified and installed on all roadway culverts and storm sewer outlets and inlets was a discretionary policy decision made by the City, after balancing all related policy concerns, primarily for the general public safety concern of keeping both children and adults out of the culverts and/or storm sewer outlets and inlets.

Clearly, this evidence shows that the City's installation decision involved the balancing of policy objectives.

However, the City concedes that it presented no evidence on the maintenance claim; instead, it asks this court to engage in a "common sense" analysis and assume that the City would have had to consider economic factors in making any maintenance decision. This case does not involve governmental conduct that "facially" encompassed a balancing of policy objectives. See Nusbaum, 422 N.W.2d at 722 n.6 (citing Stevenson v. State Dep't of Transp., 619 P.2d 247, 253-54 (Or. 1980) (mere description of certain governmental decisions, such as decision to build highway or initiate new program, may establish discretion necessarily involved)). Nor has the City shown that its conduct stemmed from or was a consequence of its initial decision to install trashguards. Cf. Zank v. Larson, 552 N.W.2d 719, 721-22 (Minn. 1996) (city entitled to statutory immunity when affidavit by city engineer stated decision regarding signal timing made when intersection initially designed and involved numerous policy-type considerations). Rather, the City was required to be fairly specific in explaining and articulating its reasons for its conduct. See Schaeffer v. State, 444 N.W.2d 876, 881 (Minn. App. 1989). Thus, we conclude that the City failed to prove it is entitled to statutory immunity on the maintenance claim.[1]

Finally, the City alternatively argues that it is entitled to dismissal of the maintenance claim because, as a matter of law, it had no notice. See Pettinger v. Village of Winnebago, 239 Minn. 156, 162, 58 N.W.2d 325, 329 (1953) (municipality may be liable for failing to maintain sewers if it has adequate notice of defective condition and adequate time to correct situation). Due to an earlier order from this court limiting the issues on appeal, however, the notice issue is not properly before us. See McGovern v. City of Minneapolis, 475 N.W.2d 71, 73 (Minn. 1991).

The district court's partial denial of summary judgment to the City is affirmed.

Affirmed.

[ ]1Even were we to agree that the City was not required to present any direct evidence regarding maintenance, we still conclude that this maintenance claim involved day-to-day operational decisions that are unprotected by statutory immunity. See Holmquist, 425 N.W.2d at 232. When deposed, the City's public works director stated that after the flooding of A & L's fields, he told his staff to "keep an eye [on the trashguard] to make sure that [it] stays clean." This statement suggests that the only city policy respecting maintenance of trashguards involved informal responses to daily conditions, not a balancing of policy considerations.