This opinion will be unpublished and

may not be cited except as provided by

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




Bruce Reigstad, et al.,



City of Willmar, et al.,


Filed July 21, 1998


Amundson, Judge

Kandiyohi County District Court

File No. C896890

Bruce Reigstad, 901 Fifteenth Avenue Northwest, Willmar, MN 56201 (pro se appellant)

Carla J. Heyl, 145 University Avenue West, St. Paul, MN 55103 (for respondents)

Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Norton, Judge.[*]



Appellants challenge the district court's grant of summary judgment in favor of respondents city and city officials based on official immunity, claiming that the district court erred in concluding that appellants failed to establish willful or malicious wrongdoing by respondents. We affirm.


Appellants Bruce and Marna Reigstad own rental property in the respondent City of Willmar. In the spring of 1994, one of the Reigstads' tenants called the city to complain about vandalism in the Reigstads' buildings. Respondents Randy Kardell, the city building inspector, and Merle Berkeland, the city fire marshal, inspected the buildings in response to the complaint. Kardell and Berkeland cited the Reigstads for several fire and building code violations and issued oral orders, including an order to install a fire alarm system.

A few days later, Bruce Reigstad went to Kardell's and Berkeland's offices and proposed making some alterations to the buildings instead of installing a fire alarm system. The Reigstads claimed that both Kardell and Berkeland agreed that the proposed alterations would obviate a fire alarm system and indicated that the Reigstads would not need a building permit to make the alterations. In the summer of 1994, the Reigstads made the proposed alterations to their buildings.

In the fall of 1995, defendant Kyle Christianson,[1] a building inspector, conducted a routine inspection of the Reigstads' rental units. Christianson noted the alterations to the buildings. Based on Christianson's report, Kardell and Berkeland conducted another inspection. Kardell and Berkeland determined that the alterations were an imminent fire safety hazard, and the city ordered that all tenants be immediately evacuated from the buildings. The city lifted the order to vacate when the Reigstads agreed to install scaffolding around the buildings to provide temporary alternative fire exits. The Reigstads eventually installed sprinkler systems in their buildings, and the city has since determined that the buildings are in compliance with fire and building codes.

The Reigstads appealed the inspectors' decisions and enforcement of the fire code to the city council, which denied relief to the Reigstads. They also formally complained to the city about the inspectors and the inspection process. Defendants Bruce Peterson, the city's director of planning and development services, and Michael Schmit, the city administrator, investigated and found that the city employees had acted properly.[2] In July 1996, the Reigstads brought an action in district court against the city and the employees involved in the dispute.

In an order dated January 17, 1997, the district court found that defendants' actions were discretionary for purposes of the official immunity doctrine and that all defendants except for Kardell and Berkeland were entitled to official immunity for their actions. The court stated that Kardell and Berkeland were not entitled to official immunity, finding a material issue of fact regarding their willfulness or maliciousness in making the representation that a building permit was not necessary to make the proposed alterations. The district court accordingly denied summary judgment in favor of Kardell, Berkeland, and the city, based on its vicarious liability.

After discovery, the respondents again moved for summary judgment. The district court granted the motion, finding that the Reigstads presented "no evidence that any defendant acted with malice at any time relevant to this claim." As an alternative holding, the court found that "to the extent that [the Reigstads's] case is based on a misinterpretation of law by [respondents], no such cause of action exists under the circumstances of this case," citing Northernaire Prods., Inc. v. County of Crow Wing, 309 Minn. 386, 244 N.W.2d 279 (1976).

The Reigstads appeal from the district court's grant of summary judgment.[3]


"On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Summary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law. Minn. R. Civ. P. 56.03.

The question of whether either statutory or common-law immunity applies is one of law, which this court reviews de novo. Davis v. Hennepin County, 559 N.W.2d 117, 120 (Minn. App. 1997), review denied (Minn. May 20, 1997). "If a claim is barred on immunity grounds, the governmental entity is entitled to judgment as a matter of law and dismissal is proper." S.J.S. by L.S. v. Faribault County, 556 N.W.2d 563, 565 (Minn. App. 1996), review denied (Minn. Jan. 21, 1997).

We will not set aside the district court's findings of fact unless clearly erroneous. Minn. R. Civ. P. 52.01.

The official immunity doctrine in Minnesota provides that:

"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 willful or malicious wrong."

Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)). Malice is "`the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.'" Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (quoting Carnes v. St. Paul Union Stockyards Co., 164 Minn. 457, 462, 205 N.W. 630, 631 (1925)).

[I]n determining whether an official has committed a malicious wrong, the fact finder considers whether the official has intentionally committed an act that he or she had reason to believe is prohibited.

State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). Whether an officer acted maliciously or willfully is usually a question of fact for the jury, but the question can also be appropriately resolved on summary judgment. Soucek v. Banham, 503 N.W.2d 153, 160 (Minn. App. 1993). To show malice, a plaintiff may not rely on general allegations, but must present specific facts showing such intent. Reuter v. City of New Hope, 449 N.W.2d 745, 751 (Minn. App. 1990), review denied (Minn. Feb. 28, 1990).

The Reigstads challenge the district court's finding that they failed to produce facts indicating that respondents acted maliciously. The Reigstads claim that Kardell and Berkeland attempted to "cover up" the fact that they told Bruce Reigstad that he did not need a building permit and, therefore, malice and willfulness can be inferred. The Reigstads claim that respondents' oral approval of the proposed alterations led the Reigstads to make the alterations, which city officials found to be fire hazards upon completion. The Reigstads allege that a cover-up may be shown by respondents' failure to make a written report of the code violations found after the 1994 inspection and by an erroneous inspection date in Berkeland's order to vacate. The Reigstads argue that the error in Berkeland's order

could have been intentional and in conjunction with the fact that no written report had been made of the 1994 inspection. If that is the case then possible cover-up was taking place and if that is true then it likely would have been to cover-up malicious misrepresentations made to the [Reigstads] during that 1994 inspection.

The Reigstads have no cause of action if they cannot point to any facts indicating that respondents intentionally violated a known right at the time the specific conduct in question occurred. See Burns v. State, 570 N.W.2d 17, 20 (Minn. App. 1997) ("Malice in the context of official immunity means intentionally committing an act that the official has reason to believe is prohibited").

The Reigstads' allegations do not include any specific facts showing malicious intent by respondents when they made the statements to the Reigstads in 1994. Even if the allegations are sufficient to show a "cover-up" of the 1994 statements, there is still no evidence showing that respondents acted with malicious intent in 1994.

The record does not contain any facts indicating that respondents intentionally misrepresented the terms of the building code to the Reigstads. Because the Reigstads have failed to identify facts indicating that respondents' representations about the necessity of a building permit were made without legal justification or excuse or that respondents willfully violated a known right, the district court properly found that respondents were entitled to official immunity.

In addition, the district court correctly found that there is no cause of action for respondents' negligent interpretation of the building code. See Northernaire Prod., Inc. v. County of Crow Wing, 309 Minn. 386, 389, 244 N.W.2d 279, 281-82 (1976) (negligent misrepresentation of law may create legal claim only if misrepresenter stands in a fiduciary relationship to person receiving misrepresentation). Because the Reigstads have failed to show that respondents were more than possibly negligent in allegedly misrepresenting the building code requirements, the Reigstads have no cause of action in this case.

The district court did not err in granting summary judgment in favor of respondents.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] All claims against Christianson were dismissed in January 1997 based on official immunity.

[2] All claims against Peterson and Schmit were dismissed in January 1997 based on official immunity.

[3] In their brief, respondents argue that the district court erred in finding that they were not entitled to statutory immunity. We do not address this issue because respondents failed to file a notice of review, as required by Minn. R. Civ. App. P. 106.