This opinion will be unpublished and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

C0-99-1548

C9-99-1676

 

Jerry Reinardy, et al.,

Respondents,

 

vs.

 

City of Red Wing, defendant and third-party plaintiff,

Appellant,

 

David F. Hallstrom, et al.,

Third-Party Defendants,

 

Red Wing Housing and Redevelopment Authority,

Third-Party Defendant,

 

Dale Plonsky, d/b/a Plonsky Construction,

Third-Party Defendant,

 

AND

 

Jerry Reinardy, et al.,

Respondents,

 

City of Red Wing,

Respondent,

 

David F. Hallstrom, et al.,

Respondents,

 

Dale Plonsky, d/b/a Plonsky Construction,

Respondent,

 

vs.

 

Red Wing Housing and Redevelopment Authority,

Appellant.

 

Filed March 21, 2000

Reversed

Randall, Judge

 

Goodhue County District Court

File No. C2-97-1486

 

Timothy K. Dillon, Dillon Law Office, 400 West Mill Street, Cannon Falls, MN  55009 (for respondents Jerry Reinardy, et al.)

 

Susan M. Sager, Carla J. Heyl, 145 University Avenue West, St. Paul, MN  55103-2044 (for appellant/respondent City of Red Wing)

 

George Vogel, P.O. Box 39, Red Wing, MN  55066 (for respondents David F. Hallstrom, et al.)

 

Paul C. Peterson, 150 South Fifth Street, Suite 1700, Minneapolis, MN  55402-1498 (for respondent Dale Plonsky, d/b/a Plonsky Construction)

 

Raymond L. Tahnk-Johnson, 2600 Eagan Woods Drive, Suite 110, Eagan, MN  55121 (for appellant Red Wing Housing and Redevelopment Authority)

 

            Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.^*

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Respondent homeowners brought suit against the City of Red Wing (the city) for alleged negligence in the design, approval, and construction of a storm-sewer drainage system that the homeowners claim caused water damage to their home.  The city filed a third-party complaint, joining the subdivision developers and the builder of the home as third-party defendants.  The city and Red Wing Housing and Redevelopment Authority (HRA), a third-party defendant, both moved for summary judgment, asserting, in relevant part, statutory immunity and vicarious official immunity.  The district court denied their motions.  The city and HRA filed separate appeals from the district court's order, and their appeals have been consolidated.  We reverse.

FACTS

            In December 1995, respondents Jerry and Carolyn Reinardy (the Reinardys) purchased a lot in the Sunrise Valley subdivision of the City of Red Wing (the city).  A sediment pond was located adjacent to their property.  Respondent Dale Plonsky, d/b/a Plonsky Construction (Plonsky), completed construction of a home on the Reinardys' lot in spring 1996.

            Between July 1 and July 2, 1997, more than one and one-half inches of precipitation fell in Red Wing.  During the storm, water forced out an egress window in the Reinardys' basement and caused damage to their property.  On July 12-13, 1997, another storm passed through Red Wing.  Water broke through the Reinardys' boarded-up basement window and again damaged their basement and personal property.

            The Reinardys commenced this action against the city in September 1997.  The Reinardys asserted that the city's negligence in design, approval, and construction of holding ponds, drainage areas, storm-water pipes, and outlets caused damage to their home. 

            The city filed a third-party complaint against respondents David F. Hallstrom and Diane L. Hallstrom and appellant Red Wing Housing and Redevelopment Authority (HRA), the subdivision developers, and against Plonsky.  The city asserted in its third-party complaint that Plonsky negligently constructed the Reinardys' home three feet lower than the plans submitted to the city and that the city is entitled to contribution and/or indemnity from the third-party defendants.

            The city sought summary judgment against the Reinardys, asserting (a) statutory immunity; (b) vicarious official immunity; (c) the Reinardys' failed to present evidence of negligence by the city; and (d) the city could not be liable for damages resulting from an extraordinary rainfall.  HRA also moved for summary judgment, asserting statutory and vicarious official immunity and asserting that it did not breach any duty owed to the Reinardys.  The district court denied both motions.  The city and HRA filed separate appeals challenging the district court's rejection of their immunity defenses, and their appeals have been consolidated.   

                                                                 D E C I S I O N

            Although an order denying a summary judgment motion is generally not appealable, an exception lies when the party seeking summary judgment asserted immunity from suit.  Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 411 (Minn. 1996).  In reviewing an order denying summary judgment, the appellate court determines whether genuine issues of material fact exist and whether the district court erroneously applied the law.  Gleason v. Metropolitan Council Transit Operation, 582 N.W.2d 216, 218-19 (Minn. 1998).  Whether immunity is applicable is a legal question reviewed de novo.  Id.  A party who asserts an immunity defense bears the burden of demonstrating facts indicating that such immunity applies.  Gerber v. Neveaux, 578 N.W.2d 399, 402 (Minn. App. 1998), review denied (Minn. July 16, 1998). 

I.          Statutory Immunity

            Although municipalities are generally liable for torts, they are immune from claims "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. §§ 466.02, .03, subd. 6 (1998).  Statutory immunity is an exception to the general rule of liability and must be narrowly construed.  Gerber, 578 N.W.2d at 403.

            In deciding whether statutory immunity applies, the court "must examine the precise governmental conduct in question."  Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994) (citation omitted).  The supreme court has "distinguished between 'planning level' conduct, which is protected by immunity, and 'operational level' conduct, which is not protected."  Fisher v. County of Rock, 596 N.W.2d 646, 652 (Minn. 1999) (citation omitted).  Planning-level decisions involve public policy questions that require the evaluation of factors including the financial, political, economic, and social effects of a proposed plan or policy.  Holmquist v. State, 425 N.W.2d 230, 234 (Minn. 1988). Operational-level decisions are those relating to the government's day-to-day operations.  Gerber, 578 N.W.2d at 403.

            A.        The City

            Here, there were two levels of decision-making:  the approval of the subdivision plans and the city engineer's approval of the drainage system.  The specific actions being challenged by the Reinardys are the city's actions involving the drainage system.  See Angell v. Hennepin County Reg. Rail Auth., 578 N.W.2d 343, 346 (Minn. 1998) (stating first step in analyzing statutory-immunity claim is to identify conduct at issue). 

            The record demonstrates that the city council delegated the review and approval of the grading plans and drainage system to the city engineer.  According to the affidavit of Thomas Drake, the city engineer, the city's engineering department reviewed and approved the proposed plans for grading and the drainage system.  The review included considering the Board of Water and Soil Resources's sediment-pond guidelines and examining the runoff and storm-sewer hydraulics based on industry standards, the Manning's equation for pipe flow, and the rational formula for storm runoff. 

            Drake's affidavit does not state that he and/or the other members of the engineering department weighed any policy factors.  Rather, it indicates that the engineering department made a professional judgment after considering certain guidelines.  Further, there is no other record evidence demonstrating that any policy factors were weighed in making this decision.  Professional judgments that do not involve policy decisions are not protected by statutory immunity.  See Steinke, 525 N.W.2d at 175 (holding statutory immunity applies only when government "can produce evidence its conduct was of a policy-making nature involving social, political, or economic considerations, rather than merely scientific or professional judgments").  Thus, we conclude that statutory immunity does not bar the Reinardys' negligence action against the city.

            B.        HRA

            HRA has also asserted statutory immunity but has not made any significant effort to demonstrate that it is entitled to statutory-immunity protection.  The party asserting immunity bears the burden of presenting facts demonstrating that immunity applies.  Gerber, 578 N.W.2d at 402.  On appeal, HRA does not provide any specific details about the decisions it made in developing the subdivision and gives no citations to the record but makes only the general statement, "The developers necessarily made decisions about lot sizes, lot locations, pond placement, and other details."  HRA has not fulfilled its burden of demonstrating the applicability of statutory immunity.

II.        Vicarious Official Immunity

            To determine the applicability of vicarious official immunity, the court must first resolve whether official immunity applies.  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998).  Official immunity shields government officials from liability for actions they take in the course of their official duties.  Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998).  The doctrine protects government officials from "the fear of personal liability that might deter independent action."  Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988).

            Absent malice, the critical determination is whether a public official's actions were discretionary or ministerial.  Kari, 582 N.W.2d at 923.  Ministerial actions are "'absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts'" and are not protected by official immunity.  Wiederholt, 581 N.W.2d at 315-16 (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937) (citation omitted)).  In contrast, discretionary actions are those that involve "individual professional judgment that necessarily reflects the professional goal and factors of a situation."  Id. at 315 (citation omitted).  "Discretion has a broader meaning in the context of official immunity than in the context of statutory immunity * * * ."  S.W. v. Spring Lake Park Sch. Dist. No. 16, 580 N.W.2d 19, 23 (Minn. 1998) (citation omitted).  In the official-immunity context, discretion exercised at the operational level is protected.  Id.

            A.        The City

            Drake, the city engineer, stated in his affidavit that the proposed grading plan and drainage system were approved after considering a number of industry guidelines.  Drake's review and approval were not merely an execution of a specific, mandated duty.^[1]  Cf. Wiederholt, 581 N.W.2d at 316 (holding city's sidewalk inspector's duty to repair broken sidewalk immediately was ministerial because mandated by city's written
policy).  Rather, his decision required him to use his judgment in applying industry guidelines.  Thus, official immunity applies to Drake.

            We must next consider whether vicarious official immunity protects the city.  Vicarious official immunity protects government employers based on their employees' official immunity.  Id.  The supreme court has repeatedly held that the failure to extend vicarious official immunity to an employer would defeat the purpose of official immunity.  See e.g., Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993) (holding granting official immunity to social worker but denying county immunity would "still leave the focus of a stifling attention on the social worker's performance, to the serious detriment of that performance") (citation omitted); Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992) (holding official immunity's purpose would be defeated if police officer's employer could be held vicariously liable).  If official immunity protects a government employee,

the government entity will not be called on to indemnify that individual nor will the government entity be liable under the doctrine of respondeat superior.

 

Watson by Hanson, 553 N.W.2d at 415. 

            Absent application of vicarious official immunity to this case, the purpose of providing the engineer with official immunity would be abrogated.  Because the city engineer is protected by official immunity, the city is protected by vicarious official immunity.  The city is entitled to summary judgment in its favor.^[2]

            B.        HRA

            HRA also asserts vicarious official immunity on appeal.  Because we conclude that the city is entitled to summary judgment based on vicarious official immunity, the third-party action brought by the city against HRA is moot.  The city has asserted only contribution and indemnity claims against HRA.  The Reinardys have made no claims against HRA.  Therefore, we need not address the applicability of vicarious official immunity to HRA. 

            Reversed.