Is constructive knowledge—based on existence of newspaper articles and local government testing—of water quality concern sufficient to find city officials liable under the adult trespasser exception to recreational-use immunity?

Ariola v. City of Stillwater, 889 N.W.2d 340 (Minn. Ct. App. 2017)

Court overrules Norland v. Soo Line R.R. (Minn. Ct. App. 1991) to hold that plaintiff who asserts the adult trespasser exception to recreational-use immunity under Minn. Stat. § 466.03, subd. 6(e) must establish a municipality’s actual knowledge of an artificial condition likely to cause death or serious bodily harm. Claim was wrongful death action brought by father of nine-year-old boy killed by an infection from swimming in Lily Lake in Stillwater. Plaintiff argued city had knowledge of the presence of the amoeba and should have closed swimming beach, and was liable under tort liability that ascribes to municipality same duty of care of a private land owner for a trespasser. The court had held in an earlier appeal that the adult trespasser standard, rather than the more stringent child trespasser standard, applied because the nine-year-old was accompanied by adults while swimming in Lake Lily.

The first death in Minnesota from Naegleria fowleri, an amoeba that results in a 99% fatal brain infection, occurred in Aug. 2010 and was a seven-year-old girl Stillwater resident. The Minn. Dept of Health determined that Lily Lake contained the amoeba and notified Washington County of the sampling results and likely cause of death was swimming in Lily Lake. In 2011 and 2012, Washington County participated in MDH and CDC water sampling of Lily Lake and knew of the positive results in those samples. City administrator, city engineer/public works director, and city public works superintendent all testified they Washington County health department never told them about it, and they never saw or read any of the newspaper articles connecting Lily Lake and the girl’s death. Court found that these facts could only establish constructive knowledge of the amoeba risk and not actual knowledge of risk.

Does a private engineering firm that performs functions of a city under its contract qualify for public official immunity protection?

Kariniemi v. City of Rockford, 882 N.W.2d 593 (Minn. 2016)

Preserved immunity from property owner’s nuisance claim for the City of Rockford and for a private engineering firm that performed functions of the city engineer under contract. Underlying nuisance action was for allegedly negligent design and operation of the city’s stormwater drainage system.

Is a county liable for erroneously advising home purchasers that their property is above the floodplain?

Vaa v. Clay County (Minn. App. A04-311) (November 10, 2004) (unpublished).

Homeowners Galen and Sharon Vaa sued Clay County after being erroneously informed by the County planning director, pursuant to a home purchase, that their property was above the 100-year Red River floodplain. The Court of Appeals ruled that the County was not liable for negligent misrepresentation because in rendering his opinion, the planning director assumed no duty toward plaintiffs. First, no professional duty of care was created because the planning director was not compensated. Second, the “public duty” doctrine was not implicated because the planning director was not obligated by his position to provide the opinion. Third, the homeowners could have determined whether their property was in the floodplain through other means such as a survey, and a claim of negligent misrepresentation of fact against a governmental representative is not actionable when the requested information is available through other means of which the requesting party is aware.

Are decisions to install lake aeration system exempt from tort claims under discretional function exception?

Demery v. United States Department of the Interior; Bureau of Indian Affairs (8th Cir. No. 03-1787) (February 6, 2004).

Decision by Bureau of Indian Affairs to install aeration system on Belcourt Lake, design of system, decision to warn of dangers of open water, and precise manner of warnings all considered policy analysis protected by the discretionary function exception of the Federal Tort Claims Act. Dismissal of wrongful death action brought by husband of drowning victim affirmed.

Is county engineer decision not to mark culvert exempt from liability under discretionary immunity?

Olmanson v. LeSueur County et al. (Minn. App. A03-629) (January 13, 2004).

Decision by county engineer to leave culvert under county highway without warning sign is not protected from suit by injured snowmobiler by the discretionary immunity exception. While county produced affidavits of engineers affirming county’s practice of not marking such culverts, this is not enough to prove adoption of a policy through a deliberative process. Although a written policy is not necessary to qualify for discretionary immunity protection, there must be detailed evidence of how and why the county made a particular policy decision, including specific facts considered.

What statute of limitation applies to a claim of negligent storm sewer construction or design? What frequency of flooding is sufficient to support an inverse condemnation claim?

Nolan and Nolan v. City of Eagan (Minn. App. A03-616) (December 30, 2003).

Nolan and Nolan, owner of a mini-storage facility, sued the Minnesota Department of Transportation and the City of Eagan, alleging flooding of its property from a poorly designed storm sewer system. The Court of Appeals found that an allegation of “frequent, regular, and permanent flooding” was sufficient to state a claim for inverse condemnation. The Court also ruled that despite the language of Minnesota Statutes §586.02 prohibiting other “pleadings” to be joined with a petition for mandamus, a mandamus action for inverse condemnation could be brought in conjunction with a tort claim of trespass, nuisance and negligence, the latter claim in the event that the facts did not demonstrate the regularity of flooding needed to constitute a taking. Finally, the Court ruled that a tort claim arising out of negligent design or construction of a storm sewer system is subject to the two-year statute of limitation of §541.051.

Was flooded property owner’s tort claim barred by two year statute of limitations?

Hendrickson v. City of Shoreview (Minn. App. C3-02-1734)(April 29, 2003) (unpublished).

Summary judgment dismissal of claims by flooded property owner affirmed, based on two year statute of limitations. Claims for alleged negligent design and city approval of holding pond arose once flooding revealed damage and two year statute of limitations began to run. Claim brought four years later was thus time-barred. Trespass claims, with six year statute of limitations, not raised in court below and cannot be raised on appeal.

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).

Do immunities protect a municipality from tort liability for the drainage impacts of a municipal road improvement?

Larson v. Linwood Township, 1999 WL 1059657 (Minn. App. 1999) (unpublished).

In 1992, the Town Board of Linwood Township voted to cooperate with Anoka County in improving a portion of County Road 26 and to accept jurisdiction of that roadway. During review of the County proposal, the Township's consulting engineer concluded that a new drainage system would be necessary if the proposed improvements to the road were made. Under the Joint Powers Agreement (JPA) between the Township and the County the improvements, including a storm sewer system, were to be made before the transfer of jurisdiction. Subsequently, the Board voted to fund the Township's share of the road improvements, but, in light of public opposition to the cost, excluded the drainage work. The road improvements were completed, road jurisdiction was ceded to the Township, and heavy rains thereafter caused repeated flooding to the adjacent Larson home and property. The Larsons sued the Township, alleging negligence, nuisance and trespass.

The district court dismissed the action, finding that the Township was entitled to the protection of the discretionary function tort immunity applicable to governmental actions. The Court of Appeals reversed.

The Court first rejected the Township's argument that it was not responsible for the damage because Anoka County performed the grading work. Under Minnesota Statute § 471.49, ruled the court, that each party to a JPA acts on behalf of all of the others. The Court then ruled that the discretionary function immunity did not apply, stating that the immunity protects a governmental body from tort liability when the governmental action "involves the balancing of social, political, or economic factors, [but] not when the action merely involves the exercise of scientific or professional judgment." While the Board decision not to install the drainage system did involve policy considerations sufficient to invoke the immunity, the road grading design was not debated by the Board or open to public comment, and reflected merely the exercise of engineering judgment.

What statute of limitation applies to a lawsuit alleging inadequate design of a storm or sanitary sewer?

Nemechek v. City of Byron, 1999 WL 1138441 (Minn. App. 1999) (unpublished).

In June 1998, the Nemecheks brought suit against the City of Byron following a sewage backup. They alleged that the backup was caused by the inadequacy of the City's storm and sanitary sewer systems, which were constructed in the 1970's. The Court of Appeals affirmed the district court's dismissal of the action, finding that it was one arising out of "the defective and unsafe condition of an improvement to real property," and therefore barred by the 10-year statute of limitation prescribed by Minnesota Statutes ¤541.051, subdivision 1. The Nemecheks' claim of negligent maintenance also was rejected on the basis of testimony that, at the time of the storm in question, the system was functioning as designed.

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.

What statute of limitation applies to a tort action for flood damage resulting from an adjacent landowner's regrading?

Elvester v. North, 1999 WL 672687 (Minn. App. 1999) (unpublished).

The Elvesters, in the City of Newport, suffered storm flows and ice buildup on their property. They brought a trespass action against owners of an adjacent property, alleging these injuries as the result of the adjacent owners' regrading and paving of their property. The district court dismissed the lawsuit as time barred under the Minnesota Statutes § 541.051 two-year statute of limitation for damage resulting from a "defective and unsafe condition." Examining several prior decisions of the Minnesota courts, the Court of Appeals determined that a condition is "defective and unsafe" if it results from an improvement's failure to operate in accordance with its design, but is not so characterized if the improvement functions in accordance with its design and the responsible party knew or should have known of the consequences that would follow. Evidence suggesting that the property owners consciously graded their property toward the Elvesters created an issue for trial and precluded summary judgment.