Is a municipality liable in tort for a decision as to the design capacity of its stormwater facilities? Wennerlyn v. City of Minneapolis, 1999 WL 690195 (Minn. App. 1999) (unpublished). During the 200-year storm that occurred during the evening of July 1, 1997, an apartment building owned by Mr. Wennerlyn in the City of Minneapolis suffered extensive flood damage. The building was in a low-lying area served by a City lift station that pumped stormwater to the City's storm sewer system. The lift station was designed to the capacity of a 10-year storm event and could not handle the exceptional storm of that evening. Statutory tort immunity, under Minnesota Statutes §§ 466.02 and 466.03, insulates a political subdivision from liability for "planning level" actions, those that involve discretion and the balancing of public policy considerations. A second, common-law immunity, official immunity, protects a governmental employee whose actions are discretionary and not ministerial. Under state common law, official immunity is extended vicariously to the governmental body itself, on the reasoning that vicarious immunity is necessary to accomplish the policy goals underlying the immunity doctrine, namely shielding government officials from the fear of personal liability resulting from independent action. The Court of Appeals reasoned that the decision to design the pump station only to the capacity of a 10-year event involved a weighing of policy considerations, including system effectiveness and budget concerns. Accordingly, the Court found that Mr. Wennerlyn's suit was barred by both statutory and vicarious official immunity and affirmed the trial court's grant of summary judgment in favor of the City.
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