Conlin v. City of Saint Paul, No. C0-98-1541.

CourtSupreme Court of Minnesota (US)
Citation605 N.W.2d 396
Docket NumberNo. C0-98-1541.
PartiesMichael J. CONLIN, Respondent, v. CITY OF SAINT PAUL, petitioner, Appellant.
Decision Date10 February 2000

Clayton R. Robinson, Jr., City Attorney, Margaret A. Skelton, Assistant City Attorney, St. Paul, for appellant.

Karen J. Kingsley, Kaplan & Kingsley, P.A., St. Louis Park, for respondent.

Heard, considered, and decided by the court en banc.


BLATZ, Chief Justice.

The City of St. Paul (City) appeals from a decision by the court of appeals holding that the City is not entitled to statutory immunity for its failure to use signs to warn motorists about the condition of recently sealed streets. The district court granted the City's motion for summary judgment based on its claim that a protected policy decision was made not to use warning signs on these types of road projects. The court of appeals reversed, holding that the City did not provide sufficient evidence that it had made a policy decision, and that instead the decision was a professional judgment not entitled to statutory immunity protection. We also hold that the City's evidence was insufficient to support its burden of proof on the claim of statutory immunity, and therefore we affirm.

The City of St. Paul has approximately 154 miles of streets which are maintained by a sealing process involving oiling and sanding. After being applied, the oil and sand are allowed to seal with the road surface for at least 72 hours. Excess sand is cleared at least three but not more than ten days after it is applied. One day prior to sealing, the city posts signs on the affected streets. The signs state "Tow Away Zone, No Parking, Street Oiling 7 am to 5 pm," and are removed when the oiling and sanding are completed. While the oil and sand mixture seals with the road surface, no signs are posted on the streets and the streets are accessible to traffic.

On August 28, 1996, the "Tow Away Zone, No Parking, Street Oiling 7 am to 5 pm" signs were posted on Ross Avenue in St. Paul. The next day, city maintenance workers oiled and sanded Ross Avenue, and when that was completed, removed the signs.

On August 30, 1996, at about 10 p.m., respondent Michael Conlin drove his motorcycle northbound on White Bear Avenue and attempted a left turn onto Ross Avenue. As Conlin entered Ross Avenue, his motorcycle began to slide on the sand in the road and although he tried to recover, the motorcycle landed on its right side. Conlin claims he injured his shoulder, neck, and back, and now suffers from depression.

Conlin filed this lawsuit against the City claiming the City was negligent in failing to properly inspect and maintain Ross Avenue, creating the hazardous condition on Ross Avenue, and failing to warn of the dangerous condition. The City moved for summary judgment claiming statutory immunity from suit as to its failure to post warning signs, erect barricades, or take some other protective action.1 The City claimed it made a protected policy decision not to take these actions and to instead respond to citizen complaints about the streets.

The City supported its motion with two affidavits, accompanied by several attached exhibits, of Gary Erichson, the street maintenance engineer for the Street Maintenance Division of the Public Works Department ("Erichson affidavits"). Erichson stated in his affidavits that he made the decision not to post warning signs and to instead respond to complaints after considering several factors, including

the minimal public safety concerns associated with this project; traffic considerations that barricades or cones blocking large areas for up to a ten day period would create congestion and flow problems; social considerations that residents on sealed roads would be inconvenienced by barricades and financial considerations that Street Maintenance's limited funds would be required to hire and pay additional crews for posting and removal of signs or barricades.

In addition, one of the City's exhibits consisted of four pages from the City's "street maintenance complaint log" that is used to record citizen complaints about street conditions and the City's actions to remedy the complaints. In his affidavits Erichson explained that these complaint log pages detail all the complaints made to the City about streets during the period of the sealing project, but that only one complaint was received that related to the sealing project.

The district court granted summary judgment to the City, concluding that the City was entitled to statutory immunity protection because the Erichson affidavits "plainly set[ ] forth the factors he balanced when he decided to respond to complaints rather than to post signs." The court of appeals reversed, holding that the City's decision not to post warning signs was not entitled to statutory immunity. See Conlin v. City of St. Paul, No. C0-98-1541, 1999 WL 109605, at *6 (Minn.App. March 2, 1999). The court of appeals reasoned that there was insufficient evidence of a policy-making decision because the record did not include "specific information" on any of the factors considered by the City in arriving at its decision, and because "one supervisor's statement that he unilaterally decided that warning signs would not be used" was not evidence of a policy decision. Id. at *5. The court then concluded that Erichson's decision was a professional judgment not entitled to statutory immunity protection. See id. at *6. The City appeals from this decision.


"On an appeal from summary judgment, this court determines whether there are genuine issues of material fact and whether the district court erred in applying the law." Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 411 (Minn.1996)

. In addition, this court must view the evidence in the light most favorable to the nonmoving party, in this case the respondent, Conlin. See Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 217 (Minn.1998). Whether governmental action is protected by statutory immunity is a question of law, which this court reviews de novo. See id. at 219.

Under the doctrine of statutory immunity, often referred to as discretionary immunity, municipalities are immune from liability for 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. § 466.03, subd. 6 (1998). This is an exception to the general rule that "every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function." Minn.Stat. § 466.02 (1998). The discretionary function exception is interpreted narrowly. See Angell v. Hennepin County Regional Rail Auth., 578 N.W.2d 343, 346 (Minn.1998)


Statutory immunity does not protect all governmental conduct. See Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn.1994)

. There are two types of government decisions: planning level, which are protected, and operational level, which are not protected. See id. "Planning level decisions are those involving questions of public policy, that is, the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy. Operational level decisions, on the other hand, involve decisions relating to the ordinary day-to-day operations of the government." Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988). As noted by this court in Holmquist, the distinction between these two types of decisions is not always clear.

That public policy decisions and the professional decisions involved in carrying out settled policies have in common the evaluation of complex and competing factors cannot be gainsaid. It is, however, the evaluation and weighing of social, political, and economic considerations underlying public policy decisions, not the application of scientific and technical skills in carrying out established policy, which invokes the discretionary function exception affording governmental immunity.

Id. at 232-33. There is a "gray area" dividing protected and unprotected decisions, but the underlying concern is whether the conduct at issue involves the balancing of public policy considerations in the formulation of policy. See Angell, 578 N.W.2d at 347

. In addition, each case must be analyzed by focusing on "whether the legislature intended to immunize the particular government activity that is the subject of the tort action." Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 719 (Minn.1988).

The first step in an analysis of a statutory immunity claim is to identify the conduct at issue. See Angell, 578 N.W.2d at 346

. At issue on this appeal is the City's conduct of responding to specific citizen complaints about recently sealed streets, rather than taking other action such as placing warning signs or restricting access to the streets.


The City first argues that the court of appeals incorrectly held that the financial considerations associated with a policy decision must involve more than an unspecified "de minimus" cost. The City claims that such a standard, requiring submission to the courts of the actual costs of alternative courses of action, would improperly engage the judiciary in the legislative process of evaluating whether the costs considered by a municipality in making a policy decision were significant or de minimus.

While the court of appeals' use of this language may be misleading or confusing, we do not agree with the City that the opinion adopts this standard. Although the opinion cites Christensen v. Mower County, 587 N.W.2d 305 (Minn.App.1998), and quotes its de minimus language, the court of appeals' focus is on the insufficiency of the evidence offered by the City. See Conlin, 1999 WL 109605, at *4-5. In noting that no actual costs were submitted by the City, the court of appeals was simply...

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