Dawn Nemechek, et al.,
Appellants,

State Farm Fire and Casualty Company,
Plaintiff,

vs.

City of Byron,
Respondent.

Olmsted County District Court
File No. C0-98-1934

William L. French, 627 Woodhaven Court Northeast, P.O. Box 6323, Rochester, MN 55903-6323 (for appellants)

James G. Golembeck, Allison Cavanaugh Swanson, Jardine, Logan & O’Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101-2160 (for respondent)

Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

HARTEN, Judge

Appellants, homeowners, brought this action against respondent City after sewage backed up into their home. The district court granted City summary judgment because more than ten years had elapsed since construction of the municipal sewer system. Because the statute of limitations entitles City to summary judgment, we affirm.

In the 1970’s respondent City of Byron completed storm and sanitary sewer systems in the vicinity of the home of appellants Dawn and Timothy Nemechek. After a September 1986 storm, sewage backed up into four or five homes. Appellants, unaware of the backup, purchased one of those homes in 1993. After a five-inch rainfall in June 1996, sewage backed up into appellants’ home.

Appellants brought this action in June 1998. Respondent successfully moved for summary judgment, arguing that the ten-year statute of limitation pursuant to Minn. Stat. § 541.051(1)(a) precluded the action. Appellants challenge that judgment.[1]

The applicability and construction of statutes of limitations are questions of law which this court reviews de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998). Minn. Stat. § 541.051, subd. 1 (1996), provides:

[N]o action by any person in contract, tort or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, * * * shall be brought against any person performing or furnishing the design, planning, supervision, materials or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury * * * nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.

The supreme court has determined that storm sewers are improvements to real property within the meaning of the statute. See, e.g., Capitol Supply Co. v. City of St. Paul, 316 N.W.2d 554 (Minn. 1982).

With regard to the second possible cause of action, negligent design and construction of the storm sewer system, Minn. Stat. § 541.051, subd. 1 (1978), contains the applicable statutory time period and an action to recover damages for injury to the plaintiff’s property must be brought within 2 years after the discovery of such damages, but in any event, not later than 10 years after the completion of construction of the storm sewer system.

Capitol Supply, 316 N.W.2d at 555.

Appellants contend that this is really an action for damages resulting from negligent maintenance, to which the statute does not apply. But the evidence shows that at the time of appellants’ injury, the system was functioning exactly as it had been designed to function; it was not negligently maintained. Arlen Rud, the person in charge of respondent’s maintenance department, testified in his deposition that he had checked the manhole in front of appellants’ home at the time of the June 1996 deluge and he observed that the sewage backup was not caused by a sewer blockage. He also testified that the pumps at the lift station were working the way they had been designed to work at the time of the storm.

Appellants also contend that respondent’s failure to enforce more rigorously its 1985 ordinance prohibiting property owners from connecting sump pumps and other storm water drains to the sanitary sewer system was "maintenance" within the meaning of Minn. Stat. § 541.051(c) (1996) (statute of limitations does not apply to "actions for damages resulting from negligence in the maintenance * * * of the real property improvement * * *"). But the sewer system was designed and constructed in the 1970’s. Maintaining it in its original operating condition was independent of enforcing an ordinance enacted long after it was constructed. See Jindra v. City of St. Anthony, 533 N.W.2d 641, 645 (Minn. App. 1995) (statute providing strict liability for damages resulting from the discharge of hazardous waste did not apply to the discharge of raw sewage resulting from the negligent maintenance of sewer pipes.)

We agree with the district court that appellants’ action is barred by the statute of limitations.

Affirmed.