This opinion will be unpublished and

may not be cited except as provided by

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




Ronald Wiederholt,



City of Minneapolis,


Donald Hawkinson,


Filed May 6, 1997

Affirmed in part, reversed in part, and remanded

Amundson, Judge

Hennepin County District Court

File No. 95-13979

David A. Singer, 3033 Excelsior Boulevard, Suite 300, Minneapolis, MN 55416 (for Appellant)

Michael T. Norton, Acting City Attorney, Deborah A. Styles, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Respondent)

Brett Olander, 900 Norwest Tower, 55 East Fifth Street, St. Paul, MN 55101 (for Defendant)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Amundson, Judge.



Ronald Wiederholt appeals from the district court's grant of summary judgment, arguing that the city of Minneapolis is not entitled to discretionary function immunity or vicarious official immunity. We affirm in part, reverse in part and remand.


On June 16, 1993, a Minneapolis city sidewalk inspector did a routine inspection of the public sidewalk at 2416-18 West 42nd Street in Minneapolis. The inspector noted several sections of sidewalk "projecting," i.e. there was a vertical differential between sections of the sidewalk. The differential was greater than the one inch standard that the city's policy designates as a "hazard."

On July 12, 1993, Donald Hawkinson, the owner of the adjoining property, was issued written notice of the problem. He was informed of his option to either repair the problem himself within 15 days or have the city repair it at his expense. Hawkinson did not repair the problem himself.

On July 18, 1993, appellant Ronald Wiederholt fell and was injured on the sidewalk projection in front of Hawkinson's property as he was in-line skating to Lake Harriet.

On September 30 and October 1, 1993, Gunderson Brothers, a contractor the city hired to make sidewalk repairs in the area, repaired the sidewalk.

In June 1995, Wiederholt sued the city and the property owner. Wiederholt alleged that the city "had actual or constructive notice of the condition of disrepair of the sidewalk and was negligent in its failure to make repairs."

The district court granted summary judgment in favor of the city and the property owner. The district court determined that the city's sidewalk repair policy was entitled to discretionary function immunity. The court also determined that the decision whether or not to place a warning device was made by the sidewalk inspector, in the field, at the operational level, and thus was not entitled to discretionary function immunity. However, the court determined that the decision not to place a warning device was a discretionary act and thus the inspector was entitled to official immunity and the city was entitled to vicarious official immunity.

On January 22, 1997, after the parties stipulated to a dismissal of the action against the property owner, this court dismissed the appeal in part.


Whether government entities and public officials are protected by statutory immunity and official immunity is a legal question that this court reviews de novo. See Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).

I. Discretionary Function Immunity

The city argues that it is entitled to discretionary function immunity for any delay in repairing the sidewalk in connection with its sidewalk repair program.

The immunity statute provides that a municipality is not subject to 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). The critical question in determining if governmental conduct is discretionary is whether the conduct involved a balancing of policy objectives. Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988). Government conduct is protected from liability only where there is evidence that "the conduct was of a policy-making nature involving social, political, or economic considerations." Id. In analyzing the discretionary function exception, the supreme court has distinguished between planning level decisions, which are discretionary and protected, and operational level decisions, which are nondiscretionary and unprotected. Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988). Planning level decisions are those involving questions of public policy, that is, the evaluation of factors such as the social, political, and economic effects of a given plan or policy. Id. at 232. Operational level decisions are those involving ordinary day-to-day operations of the government. Id.

The city is budgeted approximately $800,000 annually to maintain 1,900 miles of sidewalk, which it inspects on a seven to ten year cycle. Because of budgetary constraints, the city has developed a policy which allows property owners the first opportunity to repair sidewalks abutting their property. In cases where the property owner does not repair the sidewalk, fiscal concerns have also motivated the city to adopt a policy of allowing contractors to perform repairs in contiguous geographic areas, a policy which may result in repairs being completed in a different chronological order from that in which they are discovered. The city's sidewalk maintenance policies represent planning level decisions that weigh social, political, and economic considerations. We therefore conclude that the city is entitled to discretionary function immunity.

II. Vicarious Official Immunity

The city and the district court agree that the sidewalk inspector's decision not to place warning devices or make an interim repair was an operational, not a policy, decision. However, the city argues that the inspector's decision not to place a warning device or make a temporary repair was a discretionary decision and thus is protected by official immunity. See Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976) (under the official immunity doctrine, "a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong").

The city further argues that it is entitled to vicarious official immunity. Wiederholt argues that vicarious official immunity should not apply because this case does not involve the exercise of "highly professional judgment involving high degrees of risk to the safety of the public."

The sidewalk inspector was not sued in this case and therefore cannot be personally liable for damages arising out of any of his actions or omissions. Thus, the purpose of official immunity--to protect public officials from "the fear of personal liability that might deter independent action and impair effective performance of their duties"--would not be served by applying it in this case. See Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988). Because there is no action against the inspector, there is no occasion to apply official immunity doctrine in this case. It therefore follows that vicarious official immunity is also inapplicable.

Affirmed in part, reversed in part, and remanded.