Is a municipality's decision not to make major capital improvements to an existing sewer system immune from tort liability as a discretionary function?

Christopherson v. City of Albert Lea, 623 N.W.2d 272 (Minn. App. 2001).

Yes. The Minnesota Court of Appeals reviewed a district court decision that denied the City of Albert Lea's argument that a claim brought by flooded homeowers was immune from suit. The Court of Appeals reviewed the City's record of updating its sanitary and storm sewer systems, noting that in 1993, the City chose to follow an engineering study's recommendation to provide wastewater treatment and transport facilities rather than increase the capacity of the sewer system to address stormwater inflows. A 1997 rainstorm caused flash flooding in the city, and the plaintiff homeowners had 18 inches of raw sewage in their basement.

Courts consider whether a municipality is entitled to statutory immunity through a two-part test. First, the court must identify the challenged governmental conduct; second, the court must analyze the challenged conduct to determine whether it is "operational" or "policy-making." Here, the Court of Appeals decided that the conduct in question was the manner in which the City of Albert Lea chose to maintain its sewer system. The city's decision not to make immediate capital improvements involves a weighing of policy issues including consideration of budget constraints.

There are a number of cases in which municipalities are found liable for damages resulting from the failure to exercise ordinary or reasonable care to keep sewers in good repair and free from obstructions, but the Court of Appeals noted that none of these cases address the issue of discretionary function immunity. See, e.g., Jindra v. City of St. Anthony, 533 N.W.2d 641, 643 (Minn. App. 1995).

^ top