This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Janelle Elfstrand,


Medica Choice, plaintiff-intervenor,


City of Brooklyn Center, et al.,


Metropolitan Transit Commission, et al.,


Short-Elliot-Hendrickson Incorporated, et al.,


Filed December 22, 1998


Amundson, Judge

Hennepin County District Court

File No. PI 97-10948

Keith D. Johnson, Wold Jacobs & Johnson, P.A., Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for respondent Janelle Elfstrand)

Mr. Gregory P. Bulinski, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for plaintiff-intervenor Medica-Choice)

Mark J. Heley, Meagher & Geer, 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for defendants Short-Elliot-Hendrickson)

Shawn M. Raiter, King & Hatch, P.A., 1500 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102 (for appellants)

Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Mulally, Judge.[*]



Appellants challenge the district court's determination that statutory and official immunity do not shield the city from liability for the failure to properly inspect and remove a decayed tree. We affirm.


On June 25, 1995, during a severe thunderstorm with strong winds, Janelle Elfstrand was driving her vehicle. A large oak tree fractured and fell onto her vehicle, causing her injury. It is undisputed that an inspection of the fallen tree clearly showed decay. Elfstrand argues that the inspector should have noticed the signs of internal rot through an open decayed pruning wound when he inspected the tree a few months before the accident. Additionally, Elfstrand's expert testified that the tree had multiple indicators of internal decay, most prominently, a decayed branch stub that provided a visible opening into the tree's internal cavity.

Appellants countered that the city is shielded by immunity, either statutory or official immunity or both, and therefore, was not liable for Elfstrand's injury as a matter of law.


Whether governmental action is protected by immunity is a question of law. Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996). We review the denial of an immunity-based motion for summary judgment de novo. Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 411 (Minn. 1996). In reviewing a denial of summary judgment based on a claim of immunity, we presume the truth of the facts alleged by the nonmoving party. Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997).

The city claims both discretionary statutory immunity and common-law official immunity. Because both forms of immunity are exceptions to the general rule of liability, both are construed narrowly. Johnson v. Nicollet County, 387 N.W.2d 209, 211 (Minn. App. 1986) (statutory immunity); Larson v. Independent. Sch. Dist. No. 314, 289 N.W.2d 112, 121 (Minn. 1980) (official immunity). The defendant bears the burden of establishing its immunity from suit. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

Statutory Immunity

Statutory immunity derives from Minn. Stat. § 466.03, subd. 6 (1996), which grants local governmental entities immunity from tort 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."

In determining whether statutory immunity applies, "[t]he 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). "[G]overnment conduct is protected only where the state produces evidence that the conduct was of a policy-making nature involving social, political, or economic considerations." Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 (Minn. 1988). But, decisions made while implementing an established policy may also be protected because the implementation itself involves policy considerations, such as prioritizing among competing policy goals. Holmquist v. State, 425 N.W.2d 230, 234 (Minn. 1988).

While many governmental acts involve some measure of discretion, courts have distinguished between "conduct at a planning level (protected) and conduct at an operational level (unprotected)." McEwen v. Burlington N. R.R. Co., 494 N.W.2d 313, 316-17 (Minn. App. 1993) (quoting Nusbaum, 422 N.W.2d at 719), review denied (Minn. Feb. 25, 1993). A discretionary act from which the governmental entity would be immune from liability requires a balancing of complex and competing factors at the planning, rather than operational, stage. Ostendorf v. Kenyon, 347 N.W.2d 834, 837 (Minn. App. 1984). However, immunity will not extend to professional judgment that does not involve a balancing of policy objectives. McEwen, 494 N.W.2d at 317.

In this case, the governmental conduct at issue is the tree inspector's investigation and his failure to identify the internal decay. The city argues that because it is the city's policy to expressly rely on the judgment of the tree inspector, it was implementing its policy by its reliance and therefore, statutory immunity applies.

Statutory immunity applies only when the challenged government activity has its genesis in the balancing of political, social and economic factors. Zank, 552 N.W.2d at 721. In contrast, operational or day-to-day decisions involving the application of scientific or technical skills are not protected by statutory immunity. Nusbaum, 422 N.W.2d at 722. No planning, policy-making, or out-of-the-ordinary day-to-day determinations were involved in the tree inspector's decision not to further investigate or cut down the tree. Merely labeling an activity as policy-based is insufficient. The tree inspector's duties were operational and did not require the balancing of political, social, or economic factors in the policy-making stage and therefore the city is not protected by statutory immunity.

Common-law Official Immunity

The city also challenges the district court's denial of summary judgment on the doctrine of official immunity. Official immunity protects government employees who may be subject to liability in the course of performing their work duties. Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997), review denied (Minn. May 20, 1997).

Official immunity "involves the kind of discretion which is exercised on an operational rather than a policymaking level, and it requires something more than the performance of `ministerial' duties." Pletan, 494 N.W.2d at 40. A ministerial duty is "the simple execution of a specific duty arising from fixed and specific facts." Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997). But the exercise of judgment or discretion does not necessarily confer official immunity. Id. The main question before this court is whether the city tree inspector's actions were discretionary, as opposed to ministerial, a distinction often difficult to make. S.L.D. v. Kranz, 498 N.W.2d 47, 50 (Minn. App. 1993). Kranz helps to clarify this distinction; public officials should not be deterred from exercising their judgment when making decisions required of them (discretion), but at the same time, policy must encourage public officials to exercise care in performing duties that require little or no independent judgment (ministerial). Id. Ministerial duties are that which involve the execution of a specific duty. Waste Recovery Co-op v. Hennepin County, 517 N.W.2d 329, 333 (Minn. 1994) (county employee's conclusion that old phone books were "waste" was a ministerial act). E.g., Williamson v. Cain, 310 Minn. 59, 61, 245 N.W.2d 242, 244 (1976) (ministerial duties include a state employee's removal of an abandoned house with a tractor); and Kranz, 498 N.W.2d at 54 (negligent failure of employee to communicate information accurately was a ministerial act).

With these facts, directed by the line of cases defining ministerial acts, the district court correctly concluded that that the tree inspector's failure to determine that the tree was hazardous was a decision made in a ministerial capacity. The tree inspector was not required to use independent judgment to balance policy objectives. Rather, he made a routine inspection to determine if the tree was hazardous.

Because the tree inspector's position requires him to regularly inspect trees in his day-to-day activities and his decisions required no planning or policy formulation, official and statutory immunity do not shield the city from liability.


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