This opinion will be unpublished and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
CX-99-813

Penelope Larson, et al.,
Appellants,

vs.

Linwood Township,
Respondent,

County of Anoka, et al.,
Defendants.

Filed November 23, 1999
Reversed
Schumacher, Judge

Anoka County District Court
File No. C8982352

Mark A. Levine, Danae L. Weidemann, Davis, Dodd, Levine & Miller, Ltd., 1219 Marquette Avenue South, Suite 200, Minneapolis, MN 55403 (for appellants)

Peter B. Tiede, Nancy A. Proffitt, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Foley, Judge.[*]

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellants Penelope and Michael Larson appeal the district court's grant of summary judgment on their claims against respondent Linwood Township for negligence, nuisance, trespass, and promissory estoppel in connection with a road construction project. The district court decided that discretionary function immunity barred the Larsons' claims. We reverse.

FACTS

In early 1992, Anoka County proposed "turning back" (i.e., ceding jurisdiction over) a portion of County Road 26 to Linwood Township. Linwood asked its engineering firm, Hakanson Anderson, to review the county's proposal. Hakanson Anderson prepared a report for Linwood, in which the firm opined that a new drainage system would be necessary if the proposed improvements were made.

In December 1992, the Linwood Township Town Board voted to accept the turn-back of County Road 26 from Anoka County. On May 11, 1993, Linwood and the county, under the authority of Minn. Stat § 471.59, entered into an agreement entitled "Joint Powers Agreement for Jurisdictional Changes Between Anoka County and the City of East Bethel and the Town of Linwood." (The provisions in the agreement concerning East Bethel are not relevant to this appeal.) The agreement provided that before the road was turned back to Linwood, certain improvements would be made to it. Among the improvements to be performed were regrading a portion of the road, and "[s]har[ing] in the cost of a storm sewer system serving this segment of the highway." Anoka County engaged the same engineering firm Linwood had used, Hakanson Anderson, to design and oversee the improvements to County Road 26.

In April and May 1994, after Linwood had already signed the joint powers agreement, Linwood held public hearings concerning the proposed improvements, including the drainage system. In May 1994, the Town Board, acknowledging the cost of the project and widespread public opposition, voted unanimously not to proceed with the drainage project. The improvements required by the joint powers agreement were eventually completed, and the county turned County Road 26 back to Linwood.

On July 7, 1994, heavy rains flooded the Larsons' property. The new road-grading had changed the slope of the road, causing the rainwater to drain onto the Larsons' property, forming a pool directly above the Larsons' septic system. On at least six occasions since then, the Larsons' property has flooded, five times causing raw sewage to back up into the Larsons' basement, significantly damaging walls and personal effects. Although the Larsons' basement had flooded twice previously, before the road grading to County Road 26 the Larsons had never experienced the type of flooding that happened after the road grading.

D E C I S I O N

On an appeal from summary judgment, we ask whether any genuine issues of material fact are in dispute, and whether the trial court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We view the evidence in the Larsons' favor and accept as true their factual allegations. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Minnesota has abrogated governmental immunity from tort liability. Minn. Stat. § 466.02 (1998). But under exceptions to this general rule a governmental entity may still be immune from suit. Minn. Stat. § 466.03 (1998). When the government acts in an area in which it has discretion, the action is protected by statutory immunity even if the government abused its discretion or failed to use its discretion. Id. at § 466.03, subd. 6; Anderson v. City of Minneapolis, 287 Minn. 287, 288-89, 178 N.W.2d 215, 217 (1970). The applicability of discretionary immunity is a question of law, which we review de novo. Davis v. Hennepin County, 559 N.W.2d 117, 120 (Minn. App. 1997), review denied (Minn. May 20, 1997). The governmental entity raising the immunity defense bears the burden of persuasion to establish that its action was discretionary. Vrieze v. New Century Homes, Inc., 542 N.W.2d 62, 65 (Minn. App. 1996).

Linwood contends that it is not responsible for the Larsons' damage because it never did any work on County Road 26; instead, Anoka County did the grading work that resulted in water flowing onto the Larsons' property. But the Larsons contend that Linwood is nonetheless responsible for the damage because "[i]t does not matter who did the construction, as [Linwood] was involved from the beginning when it chose to enter into the Agreement."

The joint powers agreement does not state which of the governmental units involved is responsible or liable for the actions taken in executing the agreement. But the statute that authorizes joint powers agreements states that when a governmental unit exercises powers pursuant to a joint powers agreement, it does so on behalf of each of the parties to that agreement: "[t]he agreement may provide for the exercise of such powers by one or more of the participating governmental units on behalf of the other participating units." Minn. Stat. § 471.59, subd. 1 (1998) (emphasis added).

The joint powers agreement was executed in connection with the county turning over County Road 26 to Linwood. The road grading was one of several improvements the agreement provided would be performed before the turn-back. The work inured to Linwood's benefit, as the new owner of the road. Because the county's actions in grading the road were taken "on behalf of" Linwood, Linwood is as responsible for the outcome of those actions as is the county. Cf. In re Greater Morrison Sanitary Landfill, SW-15, 435 N.W.2d 92 (Minn. App. 1989) (holding former parties to a joint powers agreement liable for costs incurred years after they had withdrawn), review denied (Minn. Mar. 29, 1989).

The issue, therefore, is whether Linwood is entitled to discretionary immunity for grading the road in such a way as to cause run-off water to flood the Larsons' property. A governmental entity is entitled to discretionary function immunity only when the challenged action involves the balancing of social, political, or economic factors, not when the action merely involves the exercise of scientific or professional judgment. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 (Minn. 1988).

The record does not reflect that the decision to grade County Road 26 involved the balancing of any social, political, or economic considerations. Unlike the decision not to install the drainage system, for example, the record does not reflect that the decision to grade the road was debated by the Town Board or opened to public comment. Rather, the record reflects that the decision was made by the engineers working on the project in the exercise of their professional judgment. In a letter to the members of Linwood's Town Board, a representative of the engineering firm wrote that

the portion of CSAH that they wish to turn back has * * * vertical curves that prevent good driving visibility. * * * . I would recommend that * * * some grading be done to improve the safety.

A "Design Memorandum" submitted by the same engineering firm explains further that portions of County Road 26 "must be removed, regraded, and reconstructed to meet minimum sight and stopping distance criteria."

Linwood has presented no evidence that its engineers balanced any policy objectives in applying the sight and stopping distance criteria; instead, the engineers merely implemented preexisting state policy on road design. Because "[g]overnmental conduct involving professional judgment that is taken to implement a policy-level decision is not entitled to statutory immunity," Linwood is not entitled to discretionary function immunity for the road grading that flooded the Larsons' property. Angell v. Hennepin County, 565 N.W.2d 475, 479 (Minn. App. 1997), aff'd, 578 N.W.2d 343 (Minn. 1998); see also Christensen v. Mower County, 587 N.W.2d 305, 307 (Minn. App. 1998) ("exercising solely professional judgment as to traffic flow, or similar, non-policy factors, is not discretionary").

Reversed.

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