Kariniemi v. City of Rockford, A14–0796.

• Citation: 863 N.W.2d 430
• Decision Date: 18 May 2015
• Docket Number: No. A14–0796.,A14–0796.
• Parties: Nathan KARINIEMI, et al., Respondents, v. CITY OF ROCKFORD, Appellant.
• Court: Court of Appeals of Minnesota

863 N.W.2d 430

Nathan KARINIEMI, et al., Respondents

v.CITY OF ROCKFORD, Appellant.

No. A14–0796.

Court of Appeals of Minnesota.

May 18, 2015.

Review Granted Aug. 11, 2015.

Todd M. Johnson, Scott A. Johnson, Hellmuth & Johnson, PLLC, Edina, MN, for respondents/cross-appellants.

Paul A. Merwin, League of Minnesota Cities, St. Paul, MN, for appellant/cross-respondent.

Considered and decided by CHUTICH, Presiding Judge; RODENBERG, Judge; and SMITH, Judge.

OPINION

SMITH, Judge.

We affirm the district court's dismissal of respondents' negligent-approval claims on the basis of statutory immunity and their negligent-design claims on the basis that contractors hired to perform city functions are protected by common-law official immunity. But we reverse and remand the district court's denial of appellant's summary-judgment motion on respondent's nuisance claim because the claim relates to the same conduct as respondents' negligence-based claims.

FACTS

In 2001, appellant City of Rockford entered into an agreement with a developer to build townhomes on land within the city. The agreement provided that the city would design and construct various improvements, including storm sewers, ditches, water-retention ponds, erosion-control measures, and street grading. It authorized the city engineer to determine when the improvements had been satisfactorily completed. The agreement also provided that “additional erosion and drainage control requirements” could be imposed at “any time when, in the sole opinion of the City Engineer, they would be useful and appropriate,” and it required the developer to comply with any emergency actions relating to erosion or flooding as “determined at the sole discretion of [the] City.” The city council approved the project, requiring that “all grading, drainage, utilities and easements are subject to review and approval of the City Engineer.”

At the time of the agreement, the services of the city engineer were provided by a contract engineering company, Bonestroo, Rosene, Anderlik and Associates.¹ The contract between the city and Bonestroo required that Bonestroo “provide planning, design, and construction-related services for public improvement projects.” Acting as city engineer, Bonestroo designed and approved the storm-drainage improvements for the development referenced in the 2001 agreement. The storm-drainage improvements were designed to adequately handle a once-every-ten-years rain event.

As of May 31, 2011, appellants Nathan and Sanna Kariniemi resided in a home on land adjacent to the land developed under the 2001 agreement. On that date, their property experienced flooding after a rainstorm, resulting in damage to their home. A wetland has also formed on part of their property.

In October 2012, the Kariniemis sued the city, alleging that the city had been negligent by designing, approving, and constructing an inadequate storm-drainage system. They also alleged that the city's design, approval, or construction of inadequate storm-drainage system created a nuisance on their property.

On March 17, 2014, the district court granted the city's motion for summary judgment on the Kariniemis' negligence claims. With regard to the Kariniemis' negligent-approval claim, it ruled that the city's decision to approve the storm-drainage design “was clearly of a policy-making nature for which a balancing of economic, social, and political considerations [was] necessary,” and that the city was therefore immune from suit for its regulatory approval of the storm-drainage design under Minn.Stat. § 466.03, subd. 6 (2012). It also ruled that the city was vicariously immune to the Kariniemis' negligent-design claim because Bonestroo was immune under the common-law doctrine of official immunity for its design work while acting as the city engineer.

The district court also ruled, however, that neither statutory nor common-law official immunity barred the Kariniemis' claim for negligent construction. It nonetheless dismissed this claim without prejudice, ruling that the Kariniemis had failed to plead any facts that negligent construction, as opposed to negligent design, caused the flooding on their property.

The district court also found that the city had failed to timely raise immunity in regard to the Kariniemis' nuisance claims, and it therefore denied the city's motion for summary judgment on those claims.

The city appealed the district court's denial of its motion for summary judgment on the nuisance claim, and, in a properly noticed related appeal, the Kariniemis challenged the district court's grant of summary judgment on their negligent-design and negligent-approval claims.

ISSUES

I. Did the district court err by granting summary judgment to the city on the Kariniemis' negligent-approval claim?

II. Did the district court err by granting summary judgment to the city on the Kariniemis' negligent-design claim?

III. Did the district court err by denying summary judgment on the Kariniemis' nuisance claim?

ANALYSIS

I.

Because we must answer the question of whether official immunity applies at all before we can address the district court's ruling that it does not bar the Kariniemis' nuisance claim, we turn first to the issues raised in the Kariniemis' related appeal. Although the Kariniemis challenge the district court's ruling that statutory immunity barred their negligent-approval claim, their arguments focus solely on the purportedly negligent design of the storm sewer, addressing such factors as the size of the culvert and the drains. The Kariniemis do not discuss the city's regulatory-approval process. Since the determination of whether statutory immunity applies requires first “identify [ing] the precise government conduct being challenged,” Nusbaum v. Cnty. of Blue Earth, 422 N.W.2d 713, 722 (Minn.1988) (emphasis added), the Kariniemis' focus on the design of the storm-drainage system waives a challenge to the district court's negligent-approval ruling. See In re Application of Olson for Payment of Servs., 648 N.W.2d 226, 228 (Minn.2002) (holding that “issues not ‘argued’ in the briefs are deemed waived on appeal” and that “the threshold is whether an issue was addressed in the ‘argument portion’ of the brief”).

II.

The Kariniemis challenge the district court's ruling that their negligent-design claim is barred by vicarious official immunity, arguing that no Minnesota caselaw supports extending official immunity to contractors and that to do so would “abrogate the Municipal Tort Liability Statute ... by creating an exception to liability which would essentially ‘swallow’ the rule of liability itself.” “The applicability of immunity is a question of law, which this court reviews de novo.” Sletten v. Ramsey Cnty., 675 N.W.2d 291, 299 (Minn.2004).

The common law doctrine of official immunity provides that a public official who is charged by law with duties calling for the exercise of judgment or discretion is not personally liable to an individual for damages unless the official is guilty of a willful or malicious act. Official immunity thus protects government officials from suit for discretionary actions taken in the course of their official duties. The doctrine is designed to protect officials from the fear of personal liability that might deter independent action.

The critical distinction to be made in an official immunity determination is whether the nature of the individual official's actions are discretionary or ministerial, because only discretionary decisions are immune from suit.

Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn.1998) (citations and quotation omitted).

The Kariniemis do not contend that the design of the storm-drainage system was a ministerial rather than a discretionary act. They also do not dispute the district court's conclusion that, if Bonestroo enjoys official immunity, the city enjoys vicarious official immunity. See Olson v. Ramsey Cnty., 509 N.W.2d 368, 372 (Minn.1993) (holding that vicarious official immunity for a government-entity employer is essential to protect the purposes of official immunity enjoyed by an employee). Rather, they argue that, as a contractor, Bonestroo does not qualify as “a public official” eligible for the protections of official immunity. The question of whether contractors retained to perform functions typically assigned to city employees are protected by official immunity is an issue of first impression in Minnesota.

Because of the lack of Minnesota caselaw addressing the question, the district court turned to the United States Supreme Court's opinion in Filarsky v. Delia, ––– U.S. ––––, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012). In Filarsky, the Supreme Court held that a private person retained as an investigator for a local fire department was immune from a lawsuit alleging violations of federally protected rights in the course of his investigation. Id. at 1660, 1667–68. In reaching its conclusion, the Supreme Court reviewed the common-law origins of the official-immunity doctrine, noting that nineteenth-century “[l]ocal governments faced tight budget constraints, and generally had neither the need nor the ability to maintain an established bureaucracy staffed by professionals.” Id. at 1662. “Instead, to a significant extent, government was administered by members of society who temporarily or occasionally discharged public functions.” Id. (quotation omitted). “It was not unusual, for example, to see the owner of the local general store step behind a window in his shop and don his postman's hat.” Id. at 1663. Accordingly, ...