This opinion will be unpublished and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


Sandra K. Soltis-McNeal,
trustee for the next-of-kin of
Stephanie Leah McNeal, deceased,


Jesse T. Erickson, et al.,

City of White Bear Lake,

Filed December 14, 1999
Anderson, Judge

Ramsey County District Court
File No. C3-97-11370

Mark J. Condon, Robert A. Fleagle, Johnson & Condon, P.A., Financial Plaza, 7235 Ohms Lane, Minneapolis, MN 55439-2152 (for appellant)

Geoffrey P. Jarpe, Jeffrey B. Stites, Maun & Simon, PLC, 2000 Midwest Plaza Building West, 801 Nicollet Mall, Minneapolis, MN 55402-2534 (for respondent)

Paul C. Peterson, William L. Davidson, Sarah E. Morris, Lind Jensen & Sullivan, 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for defendants Erickson, Jesse, Michael)

Karen Imus Johnson, Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for defendant Heimerl)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant City of White Bear Lake challenges the district court's denial of its summary judgment motion based on a claim of statutory immunity. Because the governmental conduct challenged by respondent Sandra Soltis-McNeal is entitled to immunity, we reverse.


On November 10, 1997, respondent Julie Heimerl was driving northbound on Karen Place in a residential neighborhood in the City of White Bear Lake ("the city"). Heimerl was transporting five girls, one of whom was Stephanie McNeal. Heimerl approached a T-shaped, uncontrolled intersection at Karen Place and Seventh Street. When Heimerl pulled out into the intersection to make a left turn, her vehicle was struck broadside by a pick-up truck that was travelling east on Seventh Street. The driver of the truck was respondent Jesse Erickson. Stephanie McNeal died as a result of the collision. The record contains evidence that a tree, located on private property at the southwest corner of the intersection of Karen Place and Seventh Street, may have obstructed the views of both drivers and contributed to the accident.

The city has an ordinance in its zoning code relating to vegetation and structures that obstruct traffic visibility:

Traffic Visibility. On corner lots in all districts, no structure or planting in excess of thirty (30) inches above the street centerline grade shall be permitted within a triangular area defined as follows: Beginning at the intersection of either the property lines of two intersecting streets or the extension of the property lines in the case of a curved property line, thence fifteen (15) feet along one property line, thence diagonally to a point fifteen (15) feet from the point of beginning.

In all areas, limbs of trees must be at least eight (8) feet above grade within the public right-of-way.

White Bear Lake, Minn., Zoning Code § 1302.030, subd. 8 (1991) (emphasis added). The ordinance provides two standards, one for the sight-triangle area and another for all other areas abutting the public right-of-way. The parties agree that the tree in this case was not within the sight triangle. The parties also agree that the tree was in violation of the latter prohibition; the tree's lower branches were less than eight feet from the ground within the public right-of-way. The record indicates that this violation has existed for several years.

The city trims trees and vegetation located within the corner sight triangles for traffic visibility. The city will also trim trees outside the sight triangles, but usually only if needed to protect the city's mowing and snow-plowing equipment, if the tree is dead, if it interferes with pedestrian or bicycle traffic, or if it interferes with a street light. The city will not affirmatively monitor and trim trees outside of the sight triangles for traffic visibility, but it may trim them for such purposes if a condition warranting trimming is brought to its attention.

The city has a fairly comprehensive system of monitoring trees. Street sweepers, snow-plow operators, and road-maintenance personnel report trees that need trimming. In the years prior to the accident, city employees had been in the vicinity of the tree at issue in this case on several occasions. The city, however, never received any complaints or reports relating to the tree.

Shortly after her daughter Stephanie's death, respondent Sandra Soltis-McNeal was appointed trustee for her daughter's next-of-kin. Soltis-McNeal commenced the present wrongful-death action against Jesse Erickson, Julie Heimerl, and the city. For her claim against the city, Soltis-McNeal alleged that the city was negligent in allowing the tree to obscure visibility and in failing to install traffic controls or warning signs at the intersection.[1]

The city moved for summary judgment on the ground that it is entitled to statutory immunity for its failure to trim the tree. The district court denied the summary judgment motion.


This court reviews an order denying summary judgment by determining whether there are genuine issues of material fact and whether the district court erred in applying the law. Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 218-19 (Minn. 1998). Whether immunity applies is a legal question, which is reviewed de novo. Id. at 219. The party asserting a defense of immunity has the burden of demonstrating facts showing it is entitled to immunity. Gerber v. Neveaux, 578 N.W.2d 399, 402 (Minn. App. 1998), review denied (Minn. July 16, 1998). In reviewing a denial of summary judgment based on a claim of immunity, this court presumes the truth of the facts alleged by the nonmoving party. Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997).

Under the Minnesota Tort Claims Act, a municipality can be held liable for the torts of its officers, agents, and employees. Minn. Stat. § 466.02 (1996). In a few limited circumstances, governmental entities are immune from tort claims. Minn. Stat. § 466.03 (1996); Angell v. Hennepin County Reg'l Rail Auth., 578 N.W.2d 343, 345-46 (Minn. 1998) (noting that the exceptions to the Tort Claims Act are narrowly construed). Statutory immunity protects the government from claims arising from performing or failing to perform a discretionary act, regardless of whether it abused its discretion. Minn. Stat. § 466.03, subd. 6 (1996).

Statutory immunity is based on the separation of powers and is intended to prevent judicial review, through the medium of a tort action, of executive and legislative policy-making decisions. Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996). Thus, although nearly any governmental act requires some measure of discretion, immunity protects only those discretionary acts that involve the balancing of policy objectives such as social, economic, and political factors. Christensen v. Mower County, 587 N.W.2d 305, 307 (Minn. App. 1998).

The first step in analyzing a claim of immunity is to ascertain exactly what governmental conduct is being challenged. Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 411 (Minn. 1996); Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994). Here, Soltis-McNeal is challenging the city's decision not to enforce its zoning ordinance by looking for and trimming trees that are outside the sight triangle areas for the purpose of traffic visibility.

The city argues that this court's decision in Riedel v. Goodwin, 574 N.W.2d 753 (Minn. App. 1998), review denied (Minn. Apr. 30, 1998), is controlling. In Riedel, the county had a policy to mow tall grass along county roads for traffic visibility. Id. at 755. High-volume roads were prioritized over low-volume roads, based on time and resources constraints. Id. The county failed to mow a low-volume road and an accident occurred at an intersection, possibly as a result of the failure to cut the grass. Id. This court held that the county was entitled to statutory immunity because the failure to mow was based on policy considerations. Id. at 757. There was, however, no ordinance or statute in place governing the mowing of county roads.

Absent the traffic-visibility ordinance in this case, the city's decision not to trim trees outside sight triangles would be entitled to immunity. The city has presented undisputed testimony that the decision was based on economic, social, and safety considerations. The city engineer testified that the city does not have the resources to trim all the trees it would like. Accordingly, the city has prioritized trimming in sight triangles for traffic visibility purposes and trimming outside sight triangles for reasons other than visibility, while giving less priority to trimming outside sight triangles for visibility. The city has also considered the desires of private property owners that their trees be left alone. The city's decision not to trim trees outside of sight triangles was based on policy considerations similar to those in Riedel.

The next question, naturally, is whether the existence of the ordinance compels us to distinguish Riedel. The district court found, and respondents argue, that the ordinance set the standard the city must follow and, thus, the failure to comply was a failure in implementing the policy and not a discretionary act. We disagree.

The city correctly points out that the ordinance imposes a requirement on property owners to keep their trees and shrubs from violating the ordinance. See White Bear Lake, Minn., Zoning Code § 1301.090, subd. 1 (1991) (allowing the imposition of a fine on persons who violate the ordinance). The ordinance is not enforceable against the city. Although the city may be required to enforce the ordinance, the ordinance's language provides no guidance on how and when it should be enforced. Thus, the ordinance leaves room for discretion in determining how to enforce it. The city has exercised its discretion, based on numerous policy considerations, and has determined that it will not trim trees outside of sight triangles for traffic visibility purposes unless a tree is brought to the city's attention as a dangerous condition. That policy decision, which was followed by the city in the present case, is entitled to statutory immunity. To hold otherwise would have the perverse effect of discouraging cities from adopting safety ordinances.

The district court found that the city must use "reasonable care" in enforcing the ordinance. The effect of the district court's ruling would be to remove any discretion a government entity may have in formulating a policy for enforcement of its ordinances or statutes.

In all cases, at least where the law is devoid of guidance, the entity would be required to use reasonable care in enforcement. This would, in turn, abrogate all statutory immunity with respect to enforcement. The issue would always come down to a fact question, did the municipality use reasonable care in ordinance enforcement? But it is exactly this type of judicial second-guessing that statutory immunity is designed to prevent.


[1] Soltis-McNeal has abandoned her claim relating to traffic signals or signs, conceding that the decisions the city made in that regard are protected by statutory immunity.