This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Nancy A. Hills, et al.,



City of White Bear Lake,


Filed July 6, 1999


Crippen, Judge

Ramsey County District Court

File No. C4979613

William C. Strait, Suite 218, 2845 Hamline Avenue North, Roseville, MN 55113 (for appellants)

Susan M. Sager, Carla J. Heyl, 145 University Avenue West, St. Paul, MN 55103-2044 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Willis, Judge.



Appellants claim harm arising from a city's improvement of a baseball field. The trial court granted summary judgment in favor of respondent city because appellants' claims were brought after the statute of limitations had run. On review of appellants' challenge to this decision, we affirm.


In 1987, appellants Nancy and Darwin Hills purchased a house adjacent to Weyerhaeuser Park in White Bear Lake. The park included a baseball field (the northern ballfield) with its third base line running parallel to the back border of appellants' property. A row of trees separates appellants' property from the ballfield.

In 1988, respondent city White Bear Lake gained possession of the park from Weyerhaeuser Corporation. The city commenced a park improvement project, during which the ballfield was moved somewhat closer to appellants' property and an eight-foot fence was installed between the field and appellants' lot. These improvements were completed in 1991.

Beginning in 1993, appellants complained of baseballs entering their yard. As a result, the city made various efforts to curtail the errant baseballs. In the spring of 1994, the city installed a 20-foot net fence atop the existing eight-foot fence. This netting did not stop the balls from entering appellants' yard. In 1996, the city installed cantilevered netting over the backstop. Appellants claim that this step was also ineffective.

On May 11, 1995, appellant Nancy Hills was struck by a baseball while standing in her backyard. Claiming injury from this incident and other damages from earlier intrusions, appellants brought suit against the city in 1997, alleging nuisance, trespass, and negligence. The city brought a motion for summary judgment. The trial court granted this motion, reasoning that appellants first discovered the injury to their property in 1993 and their 1997 suit was barred by the two-year statute of limitations for claims arising from improvements to real property.


On appeal from a summary judgment, we must decide whether the evidence raises any genuine issues of material fact and whether the trial court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

1. Minn. Stat. § 541.051; Discovery

Minnesota Statute § 541.051, subd. 1(a) (1996), provides that actions on injuries "arising out of the defective and unsafe condition of an improvement to real property" must be brought within "two years after discovery of the injury." Although appellants admit being aware of foul balls entering their yard in 1993, they contend that the trial court erred because some of their claims did not arise until May 11, 1995, the date Mrs. Hills was hit by a ball. In Hyland Hill N. Condominium Ass'n, Inc. v. Hyland Hill Co., 549 N.W.2d 617 (Minn. 1996), a case involving damage arising from a leaking roof, the supreme court found no clear error in a trial court finding that a plaintiff first became aware of injury when the leaking first occurred, not when the leaking later became a "deluge." Id. at 621. We believe that Hyland Hill stands for the proposition that a court need not parse out every incident of reoccurring harm in determining when the statute of limitations first begins to run. We observe that the problem of errant baseballs is not different for the fact that a person was finally struck with one in 1995. Appellants first became aware of their injury in 1993.

There is case law suggesting that where a harm is intermittent, not continuous, the statute of limitations might not begin to run with a plaintiff's first awareness of the problem. See, e.g., Lake City Apartments v. Lund-Martin Co., 428 N.W.2d 110 (Minn. App. 1988) (noting that reasonable minds may in some cases differ about the date of discovery of injury). But in the present case, it is undisputed that the problem of errant foul balls was continuous within the confines of the baseball season, from 1993 to 1995. Because appellants admit being aware of baseballs entering their yard in 1993, but did not sue until 1997, the trial court correctly held that Minn. Stat. § 541.051, subd. 1(a) bars their negligence, nuisance, and trespass claims.

2. Minn. Stat. § 541.051; Basis of Claim

Appellants next contend that their claims arose from the negligent "maintenance, operation or inspection" of the park, and thus are not subject to the two-year statute of limitations for improvements to real property.[1] But as the trial court noted, appellants have failed to present any facts indicating that the city was negligent in the maintenance, operation, or inspection of the park.

Although appellants detail mistakes connected with the continued use of the property as a ballfield, thus arguably tying their injuries to its operation and maintenance, there is no evidence of any hazard independent of the 1991 design. At most, rather than creating problems, these failings merely delayed corrective steps, none of which evidently proved adequate to change the risk first created in 1991. The improvements made to the fencing in 1994 and 1996, although ineffective, were merely attempts to alleviate the problem of errant fly balls, and it is not contended that they enlarged the risk for appellants.

Alternately, appellants claim that the Minn. Stat. § 541.051, subd. 1(a) does not apply because the additions made to the fences in 1994 and 1996 are not improvements to real property. But the changes to the fencing are not the basis of appellants' claims.

3. Discretionary Immunity

Whether a governmental entity is protected by statutory immunity is a legal question subject to de novo review. Johnson v. State, 553 N.W.2d 40, 45 (Minn. App. 1996).

Although the trial court correctly dismissed appellants' claims based on the grounds discussed above, we note that the city was also entitled to discretionary immunity. Municipalities are immune from 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 (1998). This immunity exists only where the government entity produces evidence that the conduct was of a policy-making nature involving social, political, or economical considerations. Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988). In contrast, operational or day-to-day decisions involving the application of scientific or technical skills are not protected by statutory immunity. Id. The distinction between policy-making activities and operational activities may involve "gray areas, [but] the underlying consideration is `whether the conduct involves the balancing of public policy considerations in the formulation of policy." Pletan v. Gaines, 494 N.W.2d 38, 43-44 (Minn. 1992) (citation omitted).

The trial court held that the city was not entitled to discretionary immunity because its conduct in relocating the ballfield "did not involve policy-making but did involve professional judgments or operational decisions." But the evidence demonstrates that the city took into consideration social, political, and economic concerns when making the decision on location of the ballfield. Municipal decision-makers (the park commission and the city council) specifically considered foul balls entering private property. They also discussed field-alignment options, alternate measures to avoid hazards, the need for additional ballfields, park access, and the competing needs of various constituents, including nearby residents. These discussions necessarily involved policy considerations on the best use of land and the feasible means to control risks.

After errant foul balls became an issue, ongoing decisions regarding continued use of the field, with remedial steps, also involved the balancing of competing concerns and the feasibility of corrective steps in the face of limited resources. Thus, these decisions are of the type insulated by discretionary immunity. See Nusbaum, 422 N.W.2d 718 ("the judicial branch of government should not, through the medium of tort actions, second-guess certain policy making activities that are legislative or executive in nature").


[1] Minn. Stat. § 541.051, subd. 1(c) (1996) provides that the two year statute of limitations does not apply to claims arising from these activities.