This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-99-362

Gary Wennerlyn,
Appellant,

vs.

City of Minneapolis,
Respondent.

Filed August 31, 1999
Affirmed
Lansing, Judge

Hennepin County District Court
File No. 986037

Richard I. Diamond, Diamond, Liszt & Grady, P.A., 9855 West 78th Street, Suite 210, Eden Prairie, MN 55344 (for appellant)

Jay Heffern, Minneapolis City Attorney, William C. Dunning, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402-2453 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In an appeal from summary judgment, Gary Wennerlyn contends the City of Minneapolis is not immune from liability for damages allegedly caused by the negligent design of a storm-sewer lift station. Because the city's conduct in designing a limited-capacity station is a protected planning decision, we affirm.

FACTS

Gary Wennerlyn owns an apartment building located on Emerson Avenue South in Minneapolis. The building is situated in a naturally low-lying area susceptible to accumulation of rainwater runoff. On July 1, 1997, extremely heavy rain fell in this area of the city. Wennerlyn incurred extensive flood damage to the apartment building and other property.

The City of Minneapolis owns and operates a lift station located near Wennerlyn's apartment building. The lift station pumps surface water from low-lying areas to the level of the storm-sewer system. City engineer Perry Damon, now retired and not a party to this case, designed the station. Wennerlyn contends the design configuration of the station resulted in significant flooding of his property. Wennerlyn submitted an affidavit from an expert asserting that the configuration causes rainfalls greater than the station's capacity, such as that which fell on July 1, 1997, to create a channeling effect that forces water backward onto Wennerlyn's property.

Wennerlyn brought suit against the city, arguing the lift station was negligently designed, maintained, and operated. He also asserted due process violations and inverse condemnation. The city moved for summary judgment. The district court granted partial summary judgment, holding that Wennerlyn's claim for negligent design was barred by statutory and official immunity. To facilitate appeal, Wennerlyn voluntarily dismissed his remaining claims, and the district court entered final judgment on the issue of negligent design. Wennerlyn appeals from the judgment.

D E C I S I O N

A political subdivision is generally liable for its torts and the torts of its officers and employees acting within the scope of their employment. Minn. Stat. § 466.02 (1996). But if a claim is "based upon the performance or the failure to exercise or perform a discretionary function or duty," the political subdivision is immune. Minn. Stat. § 466.03, subd. 6 (1998). Immunity derived from Minn. Stat. § 466.03, subd. 6, is referred to as "statutory immunity." Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 412 (Minn. 1996).

Statutory immunity protects "planning level" activity, which involves discretion and the balancing of public policy considerations, but does not protect "operational level" activity, which involves the "day-to-day operations of the government." Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988) (citations omitted); see Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988) (statutory immunity protection "does not extend to professional or scientific judgment where such judgment does not involve a balancing of policy objectives").

A government employer may also assert vicarious official immunity when the conduct at issue involves an employee's actions that are protected by official immunity. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316-17 (Minn. 1998). Vicarious official immunity may be invoked by a governmental employer whether or not the employee was actually named in the lawsuit. Id.

The lift station at issue was designed in 1986 by Perry Damon, the sewer-design engineer for the City of Minneapolis. Richard Cornelius, the current sewer-construction and maintenance engineer for the Minneapolis Public Works Department, reviewed the design of the lift station and stated in an affidavit that the station was designed to be effective in dealing with storm water at that location for rainstorms of a ten-year frequency or less. Cornelius's affidavit further stated that Damon's design was an exercise of judgment and discretion in designing a system that would be as effective as possible while being within the budget provided for the project.

The ten-year-frequency storm for which the lift station was designed is a storm that delivers approximately 2.29 inches of water an hour. The July 1, 1997, storm that damaged Wennerlyn's property delivered 3.6 inches an hour according to the Minneapolis flood report, and 3.5 inches an hour according to Wennerlyn's expert witness. This volume is described as a 200-year frequency, one-hour-rainfall event.

A governmental entity's consideration of budget and fund availability in choosing a construction plan or scheduling upgrade and repair is the type of planning that is protected by the statutory immunity doctrine. Chabot v. City of Sauk Rapids, 422 N.W.2d 708, 711 (Minn. 1988) (city's decision not to upgrade an inadequate holding pond because of economic considerations is policy-making protected by statutory immunity); Wornson v. Chrysler Corp., 436 N.W.2d 472, 474-75 (Minn. App. 1989) (state's decision not to install traffic signal protected by statutory immunity because need for signal at particular intersection was weighed against need for signals in other districts, maintenance costs, and availability of funds); Gonzales v. Hollins, 386 N.W.2d 842, 845 (Minn. App. 1986) (city's decision to replace traffic sign with a stop sign for budgetary reasons is protected by statutory immunity).

Wennerlyn argues that his claim is not that the lift station was "underbuilt" as a matter of discretionary policy, but that it was "defectively designed." The record does not support this construction of his claim. First, Wennerlyn's complaint alleges the city had a duty to purchase and utilize equipment to deal effectively with storm water runoff. The claim of "defective design" is specifically aimed at the lift station's capacity to handle only a 10-year storm rather than a 200-year storm. Wennerlyn's expert hydrologist concluded that the runoff rate greatly exceeded the lift station's pumping capacity, and the pump was not able to keep up with the inflow. The hydrologist's ultimate conclusion was that the severity of the flooding would have been greatly reduced if more lift stations had been constructed to serve the affected area. The expert's report also incorporated the city's statement that the red light activated on the lift-station pump on the night of the storm indicated a high-water condition rather than a pump failure.

On this record, we conclude that the negligent conduct identified as the cause of Wennerlyn's damages was the city's failure to design a lift station that could adequately handle a high-intensity, 200-year rainstorm. The city met its burden of showing that the lift station's limited capacity was a planning decision protected by statutory immunity. See Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997) (party asserting immunity defense bears burden of showing that it is entitled to defense). We further note that the supreme court recently held that statutory immunity also applies to a governmental entity's conduct that relies both on engineering and policy considerations. Fisher v. County of Rock, 596 N.W.2d 646, 653-54 (Minn. 1999) (county statutorily immune from liability arising from fatal accident for failure to install guardrail at bridge when decision based on both engineering and policy considerations).

The district court further held that the city was entitled to vicarious official immunity flowing from the discretionary decisions of its employee, Perry Damon, in the design of the lift station. Our holding that the city has statutory immunity for its planning activity in installing a ten-year-capacity lift station obviates an analysis of official immunity. But we observe that the act of designing a site-specific lift station entails discretionary acts of the type generally protected by official immunity, rather than ministerial acts, which would be unprotected and subject to suit. See Watson, 553 N.W.2d at 415 (public employee's acts protected by official immunity if discretionary as opposed to ministerial). The official immunity that would apply to city engineer Damon would extend vicariously to the city to accomplish policy goals underlying the official immunity doctrine. See, e.g., Watson, 553 N.W.2d at 415; Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993); Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992).

Affirmed.