STATE OF MINNESOTA
IN COURT OF APPEALS
Donald and Ora Buchanan,
City of Mankato,
Filed July 28, 1998
Concurring specially, Short, Judge
Blue Earth County District Court
File No. C6-97-438
Bailey W. Blethen, Silas L. Danielson, Blethen, Gage & Kruse, 127 South Second Street, P.O. Box 3049, Mankato, MN 56002-3049 (for respondents)
James G. Golembeck, Shari L. Johnson, Jardine, Logan & O'Brien, 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Crippen, Presiding Judge, Short, Judge, and Schultz, Judge.*
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
Respondents, landowners Donald and Ora Buchanan, recovered a $27,473.55 money judgment from appellant City of Mankato following a bench trial on respondents' action for damage to their yard that they attributed to the city's installation of a curb-side drain that was inadequate to prevent water runoff across the property. On appeal, the city restates the proposition it first posed in a summary judgment motion three months before the trial commenced--that it should enjoy immunity from the respondents' action due to evidence that it weighed policy considerations in determining the appropriateness of the drain it installed. Because the record compels a conclusion that the city enjoys discretionary immunity from an action arising out of the drain installation, we reverse.
In 1965, respondents bought a house at the end of Weaver Street in the City of Mankato. Weaver Street slopes down toward the house and the yard slopes down from Weaver Street to a ravine behind respondents' yard. At the time they bought the house, Weaver Street lacked any drains; a cut in the curb allowed water to run across the yard and into the ravine.
In 1968, the city suffered a "ten-year rainfall," as a consequence of which part of respondents' yard washed out into the ravine. Respondents subsequently built a retaining wall and added backfill.
In 1993, the city informed respondents that it planned to resurface Weaver Street. One of the respondents reported to a city street department employee that he wanted the city to address drainage on Weaver Street. Subsequently, at the time of resurfacing the street, the city installed a circular grate in front of the curb abutting respondent's property. Beneath the grate was a catch basin. The city also dug a trench from the basin to the ravine, installed a four-inch diameter pipe in the trench leading from the basin to the ravine, and recovered the trench. The cost to install this drain was approximately $400 to $1,000.
Respondents' experts contended that a different drain system should have been installed, using pipe of greater diameter and an open-faced catch basin, which is a curb opening that has a back plate and outlet to accommodate water and debris that cannot pass through the grate. They estimated the cost of such a drain at $5,000 to $6,000. Respondents offered evidence that the more expensive improvement, with an open-faced curb, would have averted damage to their yard that occurred in the course of a 250-year rainfall experience in Mankato in 1996.
Respondents brought suit to recover for damages suffered in the 1996 flooding. The city sought summary judgment on immunity and other grounds. The trial court stated that the city was not entitled to immunity if it installed the drain in direct response to the respondents' request, rather than as a mere incidental part of the street-resurfacing project. The case proceeded to trial.
After the case was heard, the trial court found that "once the decision was made to install a storm sewer system in a location where no such system had existed before, then [appellant city] was required to adhere to its own design standards, as set forth in the Capital Improvements Plan." At trial, the city engineer testified that about 20 years ago the city adopted the Capital Improvements Plan (CIP) to deal with major sewer projects.
On appeal, the city contends that the trial court clearly erred in finding the drain on Weaver Street subject to the CIP requirements and that the court otherwise failed to identify cause to deny the city's claim for immunity. The city further contends that its choice of a drain at the end of Weaver Street involved policy decisions by its street superintendent and expenditures from his annual budget of $200,000 for street overlay and incidental structural and drainage enhancements.
The city did not file a motion for new trial and thus appeals only from the judgment. Thus, the appeal presents only the questions of "whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment." Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 597 (Minn. App. 1995) (citation omitted).
1. CIP Finding Erroneous
A review of the record uncovers no evidence to support the trial court's factual finding that the drain installed on Weaver Street was a project governed by the requirements of the CIP--so that, as such, the city undertook a nondiscretionary task of complying with the CIP. Being unsupported by evidence in the record, the finding is clearly erroneous. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous); Hubbard v. United Press Int'l. Inc., 330 N.W.2d 428, 441 (Minn. 1983) (findings of fact clearly erroneous if not reasonably supported by the record as a whole).
The city engineer testified that the city acts under the CIP to prioritize each year which major sewer projects to undertake within budgetary limitations. These projects occur in construction of new streets and major reconstruction that involves replacing an entire infrastructure beneath an existing street. The projects typically cost in excess of $100,000. Sewer projects performed in accordance with the CIP are designed using 12-inch diameter pipe to accommodate the amount of water associated with a ten-year storm.
The engineer distinguished projects subject to CIP from other maintenance and street overlay projects. He testified that his department is responsible for design of drainage and storm sewer systems for the city, whereas the public works department performs day-to-day maintenance operations and overlay projects. The city engineer is involved in street overlay projects only by assisting with hearings and assessment calculations. The city street superintendent, acting within budget limitations, has discretion in directing street overlay projects.
The city engineer gave uncontradicted testimony that the CIP applies to sewer projects on new streets and major reconstructions that typically cost in excess of $100,000. No evidence in the record indicates that work performed by the public works department at the time of a street overlay project is subject to the CIP requirements. The drain installed here cost under $1,000 and was installed as an incidental part of a street resurfacing project.
2. Street Superintendent's Decision
The respondents do not defend the trial court's finding that the CIP governed the specifications for the drain installed on Weaver Street. If the city was not undertaking a nondiscretionary task under the CIP, respondents argue that the street superintendent's decision as to how to install the drain still was merely operational, not a discretionary, planning-level decision. This position parallels the trial court rationale that was evident in its denial of the city's summary judgment motion some months before trial.
A municipality is liable for the actions of employees within the scope of their employment. Minn. Stat. § 466.02 (1996). But municipalities are not liable for claims based upon their employees' performance of discretionary functions or duties, whether or not the discretion is abused. Minn. Stat. § 466.03, subd. 6 (1996).
In determining whether particular government activity is protected by discretionary immunity, the issue is whether the challenged activity "involved a balancing of policy objectives." Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996) (citation omitted). Discretionary immunity protects the government only when it can produce evidence that its conduct involved social, political, or economic considerations, rather than merely professional or scientific judgments. Id. Another significant consideration is the extent to which the threat of liability would impair the effective performance of governmental functions. Cairl v. State, 323 N.W.2d 20, 23 n. 3 (Minn. 1982).
At trial, the city street superintendent testified that he does not have budgetary authority to perform drainage work involving construction according to a ten-year storm design in residential neighborhoods; it is undisputed that the drain design suggested by respondents' experts, utilizing a twelve-inch drainage pipe, must be classified as a ten-year storm design. Thus, the street superintendent testified that in installing the drain on Weaver Street, he did not have the option of installing an open-curb drain with a twelve-inch drain. This testimony is not contradicted. And the superintendent testified that in determining how to address a drainage problem as part of a street overlay project, he considers: (a) whether a drain system already exists as would allow correction of a problem by raising a curb to redirect water without installing a structure; (b) how to address the perceived problem; (c) whether a course of action will postpone the need for more expensive major reconstruction; and (d) the limitations of his budget. He testified that he has an annual budget of $200,000 to perform 50,000 square yards of street overlay per year and accompanying minor storm sewer corrections.
This is not a situation where the street superintendent, acting for the public works department, was directed to address a drainage problem and was either compelled to follow a specific plan or merely permitted to make professional or scientific judgment as to how to proceed, unfettered by any social, political, or economical considerations. Cf. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 723 (Minn. 1988) (no discretionary immunity where decision as to placement of speed limit sign involved only professional or scientific judgment, and decision not to recommend placement of warning sign at curve did not involve policy considerations); Abbett v. St. Louis County, 424 N.W.2d 82, 85 (Minn. App. 1988) (no discretionary immunity where decision not to install road guardrail involved only safety factors and factual variables), review denied (Minn. July 28, 1988); Abo El Ela v. State, 468 N.W.2d 580, 582 (Minn. App. 1991) (no discretionary immunity where decision of state trooper to use hand signal rather than other method to direct motorist to stop involved only professional judgment as to safety).
Here directives to the street superintendent only limited his authority to do what respondents suggest the superintendent should have done. And it is evident that any municipal decision to enlarge the superintendent's powers to include the project envisioned by respondents' experts would involve municipal policy-making. Within the scope of his discretion on choice of drain projects, the superintendent had to allocate funds from a limited budget. Officials enjoy discretionary immunity on decisions that require the balancing of an intended objective against limited financial resources. See In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 547 (Minn. App. 1997) (discretionary immunity applied where decision to retrofit only newer snowplows with new lighting involved balancing financial resources against safety concerns), review denied (Minn. June 26, 1997); McEwen v. Burlington N. R.R. Co., Inc., 494 N.W.2d 313, 317 (Minn. App. 1993) (discretionary immunity applied where decision not to upgrade railroad crossing involved balancing safety considerations with limited funding), review denied (Minn. Feb. 25, 1993); Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 413 (Minn. 1996) (discretionary immunity applied where decision not to have security personnel present on bus involved balancing safety of passengers with limited funds available for that purpose). An attack on the superintendent's decision is in essence an attack on the city's policy for street and sewer repair and construction, which, if allowed, would impair the effective performance of these governmental functions.
SHORT, Judge (concurring specially).
I concur only insofar as the majority concludes the city is entitled to discretionary immunity.
 Generally, where a municipality merely implements a previously determined policy, it does not enjoy discretionary immunity from liability arising from professional judgment exercised in implementation. Holmquist v. State, 425 N.W.2d 230, 234 (Minn. 1988).
 The trial court found that the Weaver Street drain addition was not "mere maintenance," a suggestion made in testimony for the city. The evidence permits this judgment as to what is "mere maintenance" or what improvements are "minor," but there is no evidence that the CIP governs all improvements that are not categorized as mere maintenance. To the contrary, the evidence shows that the CIP governs a specific class of major construction projects.
 In considering whether city action was merely operational, the respondents view as determinative that improvement decisions were made by the street superintendent, rather than the city council. But the ultimate question, even as to field work of an individual, is whether the challenged conduct involved the evaluation and weighing of social, political, and economic considerations that underlie public policy decisions, rather than merely following a policy directive or only applying scientific and technical skills in carrying out established policy. Nusbaum 422 N.W.2d at 723.