                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-2012

                                   Barbara Kuntz,
                                    Respondent,

                                         vs.

                       Minneapolis Park and Recreation Board,
                                     Appellant.

                                 Filed July 20, 2015
                                      Reversed
                                 Bjorkman, Judge


                           Hennepin County District Court
                              File No. 27-CV-14-1437

Timothy S. Poeschl, Rachel T. Schromen, Hanson Lulic & Krall, LLC, Minneapolis,
Minnesota (for respondent)

Ann E. Walther, Karin E. Peterson, Daniel A. Louismet, Rice, Michels & Walther, LLP,
Minneapolis, Minnesota (for appellant)

      Considered and decided by Stauber, Presiding Judge; Bjorkman, Judge; and

Rodenberg, Judge.

                       UNPUBLISHED OPINION

BJORKMAN, Judge

      Appellant challenges a denial of summary judgment, arguing that statutory

immunity bars respondent’s negligence action related to removal of a boulevard tree

following a storm. We reverse.
                                        FACTS

      On June 21, 2013, severe storms passed through Minneapolis, damaging a large

elm tree on the boulevard in front of respondent Barbara Kuntz’s home. The partially

uprooted tree leaned over Kuntz’s house, and she feared it would eventually fall. The

tree was one of more than 3,000 damaged by these particular storms.           In Kuntz’s

neighborhood, more than 320 trees were completely destroyed, and 305 were tipped and

had to be removed.

      Appellant Minneapolis Park and Recreation Board is responsible for maintaining

boulevard trees, including removing storm-damaged trees. While the Park Board did not

have a written protocol for responding to storm emergencies, in the aftermath of these

particular storms it devised and implemented an informal emergency-response plan under

which it removed, in the following priority order: (1) trees blocking emergency routes

and other public rights of way; (2) trees that fell on houses; (3) structurally defective

trees; and (4) tipped trees not on top of a structure and leaning trees, like the one that

threatened Kuntz’s home.

      The Park Board logged approximately 1,300 storm-related calls between June 22

and 26. Pursuant to its emergency-response plan, the Park Board catalogued damaged

trees based on these reports and then addressed them in accordance with the priority

system. Park Board staff prepared a “Tree Work Request” form for each reported tree

and forwarded it to the Forestry Department foreman for the district in which the tree was

located. The foreman then inspected the tree and assigned a work crew to remove it in

accordance with the priority system.


                                            2
       By the end of the workday on June 23, the Park Board had cleared trees from most

emergency vehicle routes. On June 24, crews began removing trees that had fallen on

homes. That same day, the Park Board determined that it needed to rent two cranes to

remove the numerous tipped and leaning trees. The Park Board began removing trees in

this priority level on June 25, and continued to do so through June 30.

       Kuntz and her neighbors reported her leaning tree multiple times to the Park

Board, city council members, and a state representative beginning June 22. In response

to these reports, the Park Board completed a Tree Work Request form for Kuntz’s

address on June 25. District 2 Foreman Kevin O’Connor received the form and inspected

Kuntz’s tree at around 10:00 a.m. the next morning. O’Connor testified that it was

apparent to him that the tree needed “to be dealt with immediately.” O’Connor contacted

Jeff Bean who led a crane crew that was removing trees in the area. O’Connor testified

that he directed Bean to remove Kuntz’s tree “as quickly as possible” once he finished

the project he was working on.

       Bean acknowledged that he stopped to remove several other trees on his way to

Kuntz’s house, consistent with his practice of removing all the tipped or downed trees on

a block before moving on. By the time Bean and his crane crew arrived at Kuntz’s, an

approaching thunderstorm made it unsafe to work, so the crew decided to return the next

morning. Later that afternoon, the tree fell on Kuntz’s house.

       Kuntz sued the Park Board asserting three primary theories of liability: that the

Park Board staff was negligent in failing to promptly pass along her reports to the

Forestry Department; that O’Connor negligently failed to classify the tree as structurally


                                             3
defective, preventing it from being removed sooner; and that Bean negligently

disregarded O’Connor’s instructions to remove Kuntz’s tree as soon as possible. The

Park Board moved for summary judgment, arguing that it is entitled to statutory

immunity because Kuntz challenges the Park Board’s policy decisions regarding its

response to the June 21 storms.1 The district court denied the motion, concluding that

statutory immunity does not apply because none of the three alleged negligent actions

involved planning level decisions, but instead constituted operational level conduct. The

Park Board appeals.

                                     DECISION

       On appeal from summary judgment, we determine whether there are genuine

issues of material fact and whether the district court erred in applying the law. Watson by

Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 411 (Minn. 1996). We view the

evidence in the light most favorable to the nonmoving party. See Gleason v. Metro.

Council Transit Operations, 582 N.W.2d 216, 217 (Minn. 1998). Whether immunity

applies is a legal question, which we review de novo. Johnson v. State, 553 N.W.2d 40,

45 (Minn. 1996).      The party asserting immunity has the burden of demonstrating

entitlement to that defense. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

       Statutory immunity protects governmental entities from claims based on “the

performance or the failure to exercise or perform a discretionary function or duty,

1
  The Park Board also argued that vicarious official immunity and the public-duty
doctrine barred Kuntz’s suit. The district court also denied the motion on these grounds.
On appeal, the Park Board only challenges the district court’s ruling regarding statutory
immunity.


                                            4
whether or not the discretion is abused.” Minn. Stat. § 466.03, subd. 6 (2014). When

determining what constitutes a discretionary function, courts distinguish between

“planning level” conduct, which is protected by immunity, and “operational level”

conduct, which is not protected. Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn.

2000). Planning level conduct involves the evaluation of factors such as the financial,

political, economic, and social impacts of a given decision. Holmquist v. State, 425

N.W.2d 230, 232 (Minn. 1988). In contrast, operational level conduct involves decisions

relating to the ordinary day-to-day operations of the government. Id.

       “The purpose of statutory immunity is to preserve the separation of powers by

insulating executive and legislative policy decisions from judicial review through tort

actions.”   Fisher v. Cnty. of Rock, 596 N.W.2d 646, 652 (Minn. 1999) (quotation

omitted). While there is a “gray area” dividing protected and unprotected conduct, the

fundamental concern is whether the challenged conduct involves the balancing of public

policy considerations. Conlin, 605 N.W.2d at 400 (quotation omitted).

       Kuntz asserts that her negligence allegations implicate operational level conduct

that the legislature has not immunized. The Park Board argues that the district court

erred by examining each purported negligent act in isolation and that the challenged

conduct, as a whole, reflects the Park Board’s greater emergency-response plan, the

formulation and implementation of which constituted planning level conduct. We agree

with the Park Board.

       We begin our analysis by identifying the conduct at issue. Kuntz argues that the

Park Board staff was negligent in failing to (1) record and pass along reports from the


                                            5
public regarding her tree; (2) properly diagnose the tree as structurally defective; and

(3) follow explicit orders to cut down the tree “immediately.” Underlying each of these

challenged actions is the assertion that the Park Board did not respond to Kuntz’s

numerous calls for assistance soon enough, thus failing to prevent the tree from falling on

her house. But any failure by the Park Board to remove Kuntz’s tree earlier flows

directly from its decision to systematically remove storm-damaged trees. Accordingly,

we turn to whether the Park Board’s actions surrounding its emergency-response plan

constitutes planning level or operational level conduct.

       It is undisputed that the magnitude of the June 2013 storms was unprecedented;

they prompted 1,300 calls for tree assistance. The record demonstrates that the storm-

related tree damage tested the Park Board’s capacity in terms of both equipment and

personnel. Park Board Director of Forestry Ralph Sievert testified that in the face of this

emergency, the Park Board made a conscious decision to log all reported trees and

respond according to the four-tiered priority system described above. Sievert explained

that this emergency-response plan deviated from the Park Board’s standard procedure of

addressing damaged trees in the order in which they were reported. In sum, the evidence

demonstrates that the Park Board developed its emergency-response plan in response to

the widespread need and limited resources available in the aftermath of the storm. It is

well established that decisions of this nature, involving the strategic deployment of

limited resources, are protected by statutory immunity. Silver v. City of Minneapolis, 284

Minn. 266, 271, 170 N.W.2d 206, 209 (1969) (concluding that decisions regarding how

to most effectively deploy police officers to cope with impending riot were entitled to


                                             6
statutory immunity); see also Watson, 553 N.W.2d at 413 (MTC’s decision regarding

how to deploy security resources required balancing passenger protection against limited

funds available, making it protected planning level conduct).         On this record, we

conclude that the Park Board’s development of the emergency-response plan for

removing storm-damaged trees is planning level conduct.

       We next consider Kuntz’s argument that the implementation of the emergency-

response plan by individual Park Board employees involves operational level conduct.

Kuntz urges us to narrowly focus on the three distinct acts she challenges. Admittedly,

the distinction between planning and operational level conduct is imprecise. Nusbaum v.

Blue Earth Cnty., 422 N.W.2d 713, 719 (Minn. 1988) (noting the imprecision involved in

distinguishing between discretionary and operational conduct); Holmquist, 425 N.W.2d at

234 (acknowledging that even the implementation of a policy may involve policy-

making).    As a result, we must be sensitive to the fact that a challenge to the

implementation of a policy may in effect represent a challenge to the policy itself.

       The Minnesota Supreme Court highlighted the interconnected relationship

between policy-making and policy-implementation in Watson, where it concluded

statutory immunity barred a victimized bus passenger’s claims that the Metropolitan

Transit Commission (MTC) negligently failed to station security personnel on the bus

and train the driver. 553 N.W.2d at 413. The supreme court determined that the MTC

made protected policy decisions regarding how to deploy security personnel and train

drivers, and permitting the plaintiff’s negligence claims to proceed based on the

implementation of those policy decisions would “amount to an attack on the policies


                                             7
themselves.” Id. at 414. Likewise, here it is impossible to divorce the actions of those

carrying out the Park Board’s emergency-response plan from the plan itself. The Park

Board’s decision to address trees on a systematic basis ultimately directed when the Park

Board responded to Kuntz’s tree. Moreover, we decline to so finely parse governmental

action that we focus solely on individual actors and conduct and ignore the broader policy

that dictated those actions. Doing so would effectuate the second-guessing of legislative

and executive decisions that statutory immunity was enacted to prevent. Holmquist, 425

N.W.2d at 233 (stating that the purpose of statutory immunity is to protect government

actions from “judicial second-guessing”).

       This approach is consistent with reasoning found in other types of immunity cases.

In Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, our supreme court extended official

immunity to a shop-class teacher who performed a ministerial duty because the duty was

defined by a policy “established through the exercise of discretionary judgment.” 678

N.W.2d 651, 660 (Minn. 2004). The specific ministerial duty at issue in Anderson was a

safety protocol for operating a table-saw that the school district officially adopted, and

required compliance with, after weighing the merits of various other measures. Id. at

661.   The supreme court determined that a challenge to the employee’s actions in

implementing the protocol constitutes a challenge to the policy and serves to discourage

formal policy-making. Id. at 660-61. This reasoning is equally persuasive here. Each of

the claimed negligent acts is based on the fact that Park Board employees removed trees

from other streets, homes, and yards before they acted to remove Kuntz’s tree. In all




                                            8
respects, Kuntz challenges the way the Park Board chose to respond to the widespread

storm damage after weighing various policy considerations—planning level conduct.

       The danger of treading upon executive decision-making is especially evident in

the context of Kuntz’s insistence that the Park Board be held liable for the failure of Bean

and his crane crew to remove her tree immediately, as instructed by the district foreman.

While the record reflects that Bean may not have responded to his foreman’s instruction

as quickly as Kuntz would have liked, he was still operating within the parameters of the

Park Board’s emergency-response plan that dictated which trees were addressed and

when. The protected planning level conduct implicated by Bean’s actions not only

includes the Park Board’s choice not to address trees based on the timing and number of

reports, but also its decisions related to when and how many cranes to rent. Here,

allowing Bean’s actions to serve as a basis for imposing liability when they were

inextricably linked to planning level conduct would limit statutory immunity’s

application to only the most abstract policy level decisions that had yet to be

implemented.

       In sum, had the Park Board implemented a different policy for responding to

storm-damaged trees, it may have removed Kuntz’s tree before it fell on her home. But

the Park Board may have responded even later considering the number of damaged trees

and limited resources. No one can be sure. What is clear is that statutory immunity

prevents courts from weighing the merits of competing needs and resources, which

resolution of Kuntz’s negligence action would require. On this record, we conclude that

the challenged conduct at issue—the process the Park Board followed in removing storm-


                                             9
damaged trees—involved planning level conduct for which the Park Board is entitled to

statutory immunity.

      Reversed.




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