This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Cavalier Condominiums Association, et al.,


The City of Rochester,

Filed June 29, 1999
Peterson, Judge

Olmsted County District Court
File No. CX972711

Michael A. Mochinski, P. Arthur Moe, 3300 County Road 10, Suite 514, Brooklyn Center, MN 55429 (for appellants)

Patricia Y. Beety, 145 University Avenue West, St. Paul, MN 55103 (for respondent)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Schultz, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellants argue that because genuine issues of material fact exist regarding their claim that respondent was negligent in maintaining and operating its water supply system, the district court erred by granting summary judgment. We affirm.


Appellants Karim and Ruth Esmailzadeh own and manage Eastwood Village Apartments in respondent City of Rochester. Eastwood Village consists of 14 prefabricated buildings, each containing eight rental units. The members of appellant Cavalier Condominium Association maintain and repair the apartment complex's common property.

The buildings were constructed in the early 1970s in North Dakota. In 1978, they were disassembled, moved to Rochester, and then reassembled. The buildings retained their original copper plumbing system, and new water lines were installed to connect the buildings to the city's water system, which is operated by the Rochester Public Utility Board (RPUB).

The RPUB inspects and maintains the municipal water supply lines, in part, through hydrant-flushing procedures. It also tests the water supply to ensure compliance with federal and state law.

Karim Esmailzadeh first noticed a problem with the plumbing in one of the buildings when a leak near the water meter made a hole in the sheetrock. Other leaks developed in the internal piping, sometimes causing them to burst. Because the leaks occurred in the walls of the pipes, rather than at the joints, Esmailzadeh, who is a professional engineer and master plumber, believed that the water contained abrasive materials. He reasoned that pipes do not burst by themselves and that water by itself does not cause holes.

In 1990, he notified Doug Rovang, the director of the RPUB's water division, of his plumbing problems. Rovang told him that the city's water met all of the applicable water quality and composition standards.

In 1993, Esmailzadeh submitted samples of eroded copper pipe to the RPUB for analysis. Maintenance supervisor Harold Wobschall believed that factors contributing to the pipe failures were (1) thin pipe walls; (2) poor joint workmanship; and (3) excess solder at the joints. He concluded that reaming had not been done at some joints, and water flowing past the obstructions created turbulence, which caused erosion-type corrosion. In his opinion, several bends in flow direction also contributed to the turbulence.

Esmailzadeh was dissatisfied with this response and asked the city to send a representative to collect water samples from the water main located near the apartment complex. On August 23, 1994, Esmailzadeh and Wobschall filled two large (140-gallon and 525-gallon) plastic drums with water drawn from the water main. Esmailzadeh observed "crud" in the water flow and at the bottom of the drums. After draining all but 3 1/2 inches of water from the drums, the men collected water samples for analysis.

The results of the city's analysis showed traces of silica sand in the water. This amount was, in Rovang's opinion, within acceptable levels. Braun Intertec, an independent laboratory, analyzed sediment samples that Esmailzadeh had removed from Eastwood Village's water lines. Braun Intertec's report indicated that the sediment samples contained quartrose sand concentrations ranging from five to 40 percent by volume and iron oxide concentrations ranging from 60 to 95 percent by volume.

In the fall of 1995, Esmailzadeh sent pipe samples to Braun Intertec for evaluation of the erosion-type corrosion damage. In Braun Intertec's opinion, corrosion products and possibly silt or fine sand were introduced into the copper piping system from the cast iron and steel service piping and pumps. These contaminants were "deposit[ed] on the copper tubing and [were] causing increased pitting corrosion and greater turbulence leading to more rapid corrosion rates."

In February 1998, Braun Intertec, after studying more samples, issued another report, which stated that the insides of the failed pipes showed areas of turbulent flow and a build up of corrosion products consisting of iron oxide and manganese oxide. Failed areas near elbows and T-joints had excess solder or a build up of corrosion products. Some sections of straight pipe had uniform wall thinning in the absence of corrosion products.

Appellants sued the city, alleging negligent operation and maintenance of the municipal water supply system based on the claim that the municipal water contained sand and other abrasive material that had eroded the buildings' internal water distribution pipes, causing them to develop leaks or burst.

The city moved for summary judgment. Appellants' counsel filed the deposition transcript of Karim Esmailzadeh, the affidavit of Marie Ciskowski, and two photographs taken by Ciskowski of a sign over the drinking fountain at a college in Rochester, which stated:

The Water is Always Running Because the College is at the End of the Water Line and the Sediment Build-Up Would Make it Undrinkable.

There was no evidence that the drinking fountain was connected to the city water system. The district court granted the motion for summary judgment.


On appeal from summary judgment, a reviewing court asks (1) whether there are any genuine issues of material fact and (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). An appellate court must view the evidence in the light most favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff's claim.

Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

The essential elements of a negligence claim are (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) a causal connection between the breach and the injury. Id. A municipality has a legal duty to exercise reasonable care to keep facilities it operates in safe condition. Chabot v. City of Sauk Rapids, 422 N.W.2d 708, 711, (Minn. 1988).

Appellants argue that the city breached its duty of care by failing to remove foreign particulate matter from its water distribution system and by failing to adequately flush the system to eliminate silica or sand in the water. But even if we assume that the city's duty to keep facilities it operates in safe condition includes a duty to remove sand from the water, appellants presented no evidence that indicated the city breached that duty. There is evidence that there was sand in the water, but there is no evidence that the city had a duty to remove every trace of sand from the water.

The federal Safe Drinking Water Act authorizes the Environmental Protection Agency to promulgate primary and secondary standards for drinking water. 42 U.S.C. 300g-1 (1994 & Supp. II 1996). Minn. Stat. § 144.383 (1998), which is part of the state Safe Drinking Water Act of 1977, authorizes the Commissioner of Health to regulate public water supplies and to promulgate rules no less stringent than federal regulations. See also Minn. R. 4720.0350 (1997) (incorporating regulations in 40 C.F.R. §§ 141, 142.40-.64 by reference). The parties agree that the primary regulations do not govern sand or silica and the secondary regulations do not set forth recommended levels for sand or silica. See 40 C.F.R.§§ 141.1-.144 (national primary drinking water regulations), 143.3 (secondary maximum contaminant levels) (1998). Appellants failed to present any other evidence of a sand-removal standard that the city had a duty to meet.

Because there is no evidence that indicates how much sand the city had a duty to remove from the water, there is a complete lack of evidence that the city breached its duty to maintain its water system in safe condition. Viewing the evidence in the light most favorable to appellants, it does no more than establish as a fact issue whether sand in the water contributed to corrosion in the pipes. It does not establish as a fact issue whether the city breached its duty to maintain its water system in safe condition by failing to remove sand from the water. Because the record reflects a complete lack of proof on an essential element of appellants' negligence claim, the city was entitled to summary judgment.


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