                               STATE OF MINNESOTA

                                   IN SUPREME COURT

                                       A14-0796

Court of Appeals
                                                                           Gildea, C.J.
Nathan Kariniemi, et al.,                                     Took no part, Chutich, J.

                     Appellants,

vs.                                                                Filed: July 27, 2016
                                                             Office of Appellate Courts
City of Rockford,

                     Respondent.

                             ________________________

Scott A. Johnson, Todd M. Johnson, Hellmuth & Johnson, PLLC, Edina, Minnesota, for
appellants.

Paul A. Merwin, Patricia Y. Beety, League of Minnesota Cities, Saint Paul, Minnesota,
for respondent.

Joseph J. Langel, Nathan B. Shepherd, Ratwik, Roszak & Maloney, P.A., Minneapolis,
Minnesota, for amicus curiae Association of Minnesota Counties.

George C. Hoff, Justin Templin, Hoff, Barry & Kozar, P.A., Eden Prairie, Minnesota, for
amicus curiae City Engineers Association of Minnesota.

Daniel J. Cragg, Jared M. Reams, Eckland & Blando LLP, Minneapolis, Minnesota, for
amicus curiae Minnesota Association for Justice.

Paul D. Reuvers, Jason J. Kuboushek, Iverson Reuvers Condon, Bloomington,
Minnesota, for amicus curiae Minnesota Association of Townships.

Kenneth H. Bayliss, Dyan J. Ebert, Cally Kjellberg-Nelson, Quinlivan & Hughes, P.A.,
Saint Cloud, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

                             ________________________



                                          1
                                     SYLLABUS

         1.    The City is entitled to vicarious official immunity because its City

Engineer, though a private engineering firm, performed discretionary functions in close

coordination with the City and therefore qualifies as a public official eligible for official

immunity.

         2.    The City is entitled to vicarious official immunity on appellants’ nuisance

claim.

         Affirmed.

                                       OPINION

GILDEA, Chief Justice.

         The question presented in this case is whether a municipality is entitled to

vicarious official immunity for the allegedly negligent acts that its non-employee

City Engineer—a private engineering firm—performed under a contract with the

municipality. Homeowners brought this action, alleging that the non-employee City

Engineer was negligent and caused a nuisance. The district court awarded summary

judgment to the municipality on the negligence claim based on vicarious official

immunity. But the district court denied summary judgment on the nuisance claim. The

court of appeals affirmed in part and reversed in part, holding that vicarious official

immunity applied to both the negligence and the nuisance claims. Kariniemi v. City of

Rockford, 863 N.W.2d 430, 436 (Minn. App. 2015). Because we conclude that the

municipality is entitled to vicarious official immunity for both claims, we affirm.




                                             2
      This case arises from the development of land located within the City of Rockford.

As reflected in an agreement (the Agreement) between the City and the developer, the

developer agreed to design and construct a grouping of townhomes named “Marsh Run.”

Under the Agreement, the City agreed to design, construct, and install “improvements,”

including “storm sewer mains,” “catch basins,” and “storm sewer retention ponds and

structures.” The Agreement reserved a large amount of oversight to the City for the

improvements at Marsh Run and stated that the City would act through the “City

Engineer.”1

      The Rockford City Council (the City Council) approved the construction of Marsh

Run. In doing so, the City Council confirmed that “the design of all public and private

streets,” as well as “all grading, drainage, utilities and easements” at Marsh Run, would

be subject to the “review and approval of the City Engineer.”

      The City does not have an employee designated as the “City Engineer.” The City

instead contracts with a private firm for the provision of those services. For several

years, including during the Marsh Run project, Bonestroo, Rosene, Anderlik and

Associates (Bonestroo) performed the functions of “City Engineer” under the terms of a

1
        For example, the Agreement provided that the “City Engineer [was to] inspect the
installation and construction of all [improvements to be completed by the City] in
progress and upon completion,” and may further, “in his discretion, inspect the
installation and construction of any [improvement to be completed by the developer].”
The Agreement, furthermore, established that the “City [could] impose additional erosion
and drainage control requirements . . . when, in the sole opinion of the City Engineer,
they would be useful and appropriate.” Ultimately, the “City Engineer” was to determine
when all improvements had “been completed in accordance with the [City-approved]
plans, specifications, and exhibits.” In performing these functions, the City promised that
the “City Engineer . . . [would] act reasonably.”


                                            3
Professional Services Agreement (PSA)2 with the City. The purpose of the PSA was to

permit the “City to obtain engineering and architectural services in a cost-effective and

timely manner.” More specifically, the City “desire[d] to retain [Bonestroo] from time to

time to provide such professional services for general engineering needs as well as for the

planning, design, and construction of public works, all as may be directed by the City.”

Under the PSA, for projects in which construction costs exceeded $50,000, the City paid

Bonestroo a percentage of the construction cost of the project as determined by an

applicable fee schedule. For projects under $50,000, the City paid Bonestroo on an

“hourly basis.”

       Under the PSA, Bonestroo was required to perform “Basic Services” in three

general phases:   (1) the Feasibility Report Phase; (2) the Design Phase; and (3) the

Construction Phase. For example, in the Feasibility Report Phase, Bonestroo prepared a

feasibility report with six elements, submitted that report to the City Clerk 5 days before

review by the City Council, and then presented the data contained in the report to the City

Council at a public hearing. In the Design Phase, Bonestroo designed and prepared

“detailed plans and specifications for the Project,” while “periodically consult[ing] with

the City to insure that the City’s desires with respect to the Project [were] being




2
       Bonestroo was acquired by Stantec Consulting Services, Inc., in 2011, but the PSA
continued to govern the relationship between Bonestroo and the City. For clarity, and
because the lower courts referred to the firm as Bonestroo, we do the same.




                                            4
satisfied.”3 Additionally, following the approval of the designs at a public hearing, and

“[u]pon receipt of the City Council authorization to proceed,” Bonestroo “assist[ed] the

City in obtaining and analyzing bids” and prepared a recommendation for the award of

the Construction Contract. Finally, in the Construction Phase, Bonestroo organized,

attended, and assisted the City at the preconstruction conference with the successful

bidder; visited the Project site as necessary; and conducted “in the presence of the City’s

Representative, a final inspection of the Project.” The PSA also provided for “Additional

Services,” including, for example, assisting “the City in preparing applications necessary

for approvals, permits and licenses,” attending neighborhood meetings and public

hearings, and completing “[d]esign revisions resulting from . . . changes due to

coordination of multi-agency reviews (e.g., City/County/MnDOT/etc.).” With respect to

the provided-for services, the PSA noted, “[Bonestroo] . . . act[ed] as the City’s agent.”

(Emphasis added.)

       The PSA additionally mandated that Bonestroo “maintain a professional liability

insurance policy, insuring payment of damage for legal liability arising out of the

performance of professional services for the City, in the insured’s capacity as Engineer, if

such legal liability is caused by negligent acts, errors, or omissions of the insured.” It

also required that Bonestroo maintain other insurance, including comprehensive general

liability insurance coverage.

3
       Under the PSA, the City agreed to “[d]esignate a single person to act as the City’s
Representative” with “complete authority to transmit instructions, receive information,
and interpret and define the City’s policies and decisions with respect to service covered
by [the] Agreement.”


                                             5
       Pursuant to the PSA, the City tasked Bonestroo with designing and overseeing the

construction of the Marsh Run improvements. Accordingly, acting as “City Engineer,”

Bonestroo designed and oversaw the construction of the storm-water drainage system at

Marsh Run.4

       Appellants Nathan and Sanna Kariniemi, whose home is located at Marsh Run,

contend that Bonestroo’s professional services with respect to the storm-water drainage

system were negligent and caused a nuisance.5           Because of Bonestroo’s alleged

negligence, the Kariniemis assert, their property was flooded during significant rainfall in

2011 and again in 2013. The Kariniemis sought redress from the City on two occasions.

But the City denied the Kariniemis relief, asserting that weed overgrowth, not a faulty

design of the storm-water drainage system, caused the flooding. The City offered $4,500

to the Kariniemis to install protective measures to prevent further flooding but refused to

pay for their claimed damages. The Kariniemis then commenced this action against the

City, alleging negligence and nuisance claims.

       The City moved for summary judgment, arguing that it is entitled to statutory

immunity for the City Council’s discretionary decisions and vicarious common law

4
       The PSA did not require that Bonestroo actually construct the public works that it
engineered. Rather, following the Design Phase, the PSA required that Bonestroo aid and
advise the City regarding the awarding of the contract and oversee the project’s
construction.
5
       The Kariniemis attributed the saturation and flooding of their property both to an
adjacent road that placed their home “several feet under the grade of the road,” as well as
the actual storm-water drainage system, which they alleged was incapable of handling the
additional water flow. Bonestroo designed both of these improvements. For simplicity,
we collectively refer to these two improvements as the “storm-water drainage system.”


                                             6
official immunity for Bonestroo’s discretionary decisions in its capacity as City

Engineer.6 Regarding official immunity, the City noted that “Plaintiffs allege that the

design decisions of [Bonestroo] regarding storm water drainage at Marsh Run were

negligent and the cause of their alleged nuisance.” The City then argued that because

“[its] only role was to design and supervise construction of the public improvements,”

and “because the design decisions required the exercise of professional judgment by the

City’s contract engineers,” the “City has [vicarious] official immunity.”

       The Kariniemis opposed the City’s request for summary judgment, contending

that common law official immunity did not apply to Bonestroo’s design decisions

because it is an “independent contractor,” not a full-time City employee. The Kariniemis

also filed a cross-motion for summary judgment, arguing that there were no genuine

issues of material fact regarding the City’s liability for the design, approval, and

construction of the storm-water drainage system, which “created a nuisance and

constituted negligence.”

       The district court, ruling first on the City’s motion, granted summary judgment to

the City on the negligence claim. The court concluded that the City’s contract City

Engineer, Bonestroo, is entitled to official immunity for its discretionary design decisions

and that the City, in turn, is entitled to vicarious official immunity for the negligent

design claim. The court did not address the nuisance claim; instead, the court reasoned


6
       The district court held that the City is entitled to statutory immunity under Minn.
Stat. §§ 466.01, 466.03, subd. 6 (2014), for the discretionary decisions of the City
Council. That holding is not challenged on appeal.


                                             7
that due to the City’s failure to address the nuisance claim until its reply brief, 7 it would

consider the nuisance claim only in addressing the Kariniemis’ cross-motion.

       Turning to the cross-motion, the district court denied summary judgment on the

nuisance claim, reasoning that there were genuine issues of material fact for trial,

including whether the “City’s engineer . . . consider[ed] the Kariniemi property in his

calculations and design.” The court made no mention of whether official immunity

applied to the nuisance claim. The court stated, however, that it contemporaneously

“finds and concludes that the City is entitled to vicarious official immunity against

Plaintiffs’ negligent design claim.”

       The parties cross-appealed, and the court of appeals affirmed in part and reversed

in part. Kariniemi v. City of Rockford, 863 N.W.2d 430, 432 (Minn. App. 2015). First,

the court of appeals affirmed the district court’s conclusion that the City is entitled to

vicarious official immunity for the negligent design claim. Id. at 435. Second, the court

of appeals reversed the denial of summary judgment on the nuisance claim, reasoning

that the alleged nuisance arose from the same discretionary—and immune—conduct as

the alleged negligence, and therefore vicarious official immunity also applied to the

nuisance claim. Id. at 436. We granted the Kariniemis’ petition for review to consider

whether the City is entitled to vicarious official immunity.

7
       The City argued in its reply brief that the Kariniemis could not “prove any
wrongful conduct by the City” with respect to the alleged nuisance. Specifically, the City
repeated that its’ “role was to design the road and drainage culvert only,” and that it did
so “in accordance with generally accepted engineering practices.” Moreover, upkeep of
the drainage culvert (purportedly obstructed by overgrown weeds), the City argued, was
the responsibility of the Marsh Run homeowners’ association under the Agreement.


                                              8
                                            I.

       The Kariniemis argue that the courts below erred in concluding that the City is

entitled to vicarious official immunity. The City disagrees. It contends that Bonestroo is

entitled to common law official immunity and that the City, in turn, is entitled to

vicarious official immunity. The applicability of immunity is a legal question that we

review de novo. Sletten v. Ramsey Cty., 675 N.W.2d 291, 299 (Minn. 2004).

       Minnesota law recognizes two forms of governmental immunity:              statutory

immunity and common law official immunity. Elwood v. Rice Cty., 423 N.W.2d 671,

678 (Minn. 1988) (contrasting the two forms of immunity). Although both forms of

immunity are couched in terms of whether “discretion” or judgment was exercised by the

relevant actor in performance of the relevant conduct, the import and rationale of each

form of immunity are “entirely different,” and we have “stressed the importance of

distinguishing between” them.     Id.   Common law official immunity is the type of

immunity at issue in this case.

       Common law official immunity applies to “individual government[] actors.”

Janklow v. Minn. Bd. of Exam’rs for Nursing Home Adm’rs, 552 N.W.2d 711, 716

(Minn. 1996); Watson v. Metro. Transit Comm’n, 553 N.W.2d 406, 415 (Minn. 1996)

(“Official immunity protects employees or agents of the government entity.”).8 We first


8
       Statutory immunity, by contrast, is available only to “governmental entities,” and
“prevent[s] the courts from conducting an after-the-fact review which second-guesses
‘certain policy-making activities that are legislative or executive in nature.’ ” Watson,
553 N.W.2d at 412 (quoting Nusbaum v. Blue Earth Cty., 422 N.W.2d 713, 718 (Minn.
1988)).


                                            9
recognized common law official immunity for judicial actors.           Stewart v. Cooley,

23 Minn. 347, 350 (1877).       Since Cooley, we have applied common law official

immunity in a number of situations.9 But the purpose of granting official immunity has

remained constant: individual government actors must be able “to perform their duties

effectively, without fear of personal liability that might inhibit the exercise of their

independent judgment.” Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn.

2014). To that end, a public official charged by law with duties that call for the exercise

of judgment or discretion is not personally liable for damages unless the official is guilty

of a willful or malicious wrong. Id.; Janklow, 552 N.W.2d at 716 (“Government officials

are accorded near complete immunity for their actions in the course of their official

duties, so long as they do not exceed the discretion granted them by law.”).10


9
        E.g., Linder v. Foster, 209 Minn. 43, 47-48, 295 N.W. 299, 301 (1940)
(recounting the application of official immunity to “quasi judicial officers”; to “grand and
petit jurors in the discharge of their duties”; to “assessors upon whom is imposed the duty
of valuing property for the purpose of levying taxes”; to “commissioners appointed to
appraise damages when property is taken under the right of eminent domain”; and to
prosecuting attorneys; and then granting official immunity to defendants, “physicians and
surgeons,” who were “appointed by the court commissioner in accordance with
[applicable statutory authority] to examine plaintiff and report to the court as to her
mental condition,” actions that were “in the scope of their duties” and therefore “within
the protection of the rule and immune from suit”); see also Mumm v. Mornson,
708 N.W.2d 475, 490-93 (Minn. 2006) (applying official immunity to the discretionary
decisions of a police officer in a high-speed pursuit); Olson v. Ramsey Cty., 509 N.W.2d
368, 372 (Minn. 1993) (recognizing official immunity for the discretionary decisions of a
social worker).
10
        We “generally extend[] official immunity vicariously to governmental entities
after a government employee has been allowed official immunity.” Sletten, 675 N.W.2d
at 300. Extension of vicarious official immunity, however, “is not [] automatic.” Id.; see
Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992) (explaining that vicarious immunity is
                                                     (Footnote continued on next page.)

                                            10
       In general, official immunity “turns on: (1) the conduct at issue; (2) whether the

conduct is discretionary or ministerial . . . ; and (3) if discretionary, whether the conduct

was willful or malicious.” Majeski, 842 N.W.2d at 462. There is no dispute that the

conduct at issue—the design of the storm-water drainage system—was discretionary.

There is likewise no allegation of malice. And at oral argument, the Kariniemis conceded

that had Bonestroo been a City employee, rather than acting under a contract with the

City, official immunity would apply. The only issue before us, therefore, is whether the

City loses vicarious official immunity solely because its City Engineer was not an

employee of the City, but was instead working for the City under a contract.

       We have not previously considered the precise issue presented here. But our

precedent on official immunity provides the roadmap for the analysis. We have said that

official immunity “protects public officials from the fear of personal liability that might

deter independent action and impair effective performance of their duties.” Elwood,

423 N.W.2d at 678 (emphasis added). The threshold question in this case, therefore, is

whether Bonestroo properly qualifies as a “public official.”




(Footnote continued from previous page.)
often impliedly granted, but is not necessarily granted). But failing to name an individual
defendant in the complaint, as is the case here, is not a bar to vicarious immunity,
because denying immunity on that basis “would allow plaintiffs to defeat immunity by
declining to name the official as a defendant.” Wiederholt v. City of Minneapolis,
581 N.W.2d 312, 317 (Minn. 1998). Notably, the Kariniemis make no argument that
vicarious official immunity would not apply here; their only argument is that the City’s
contract City Engineer is not entitled to official immunity because it is not a City
employee. Accordingly, our analysis is limited to the underlying question of whether the
actor who designed the storm-water drainage system is entitled to official immunity.


                                             11
       Generally, the designation of “public official” is limited to employees of a

governmental entity, and a mere contract with the government does not transform an

independent commercial actor into a “public official.” But in this case, based on the

function performed and the special relationship between the City and Bonestroo, we

conclude that Bonestroo qualifies as a “public official” eligible for official immunity.

       In terms of the function performed, there is no question that a city engineer’s

design of a storm-water drainage system is a governmental function—requiring the

exercise of judgment and discretion—that is often carried out by public officials. Our

cases have recognized the public nature of this type of work as we have long afforded

official immunity to engineers and other similar officials for public infrastructure work.

See, e.g., Johnson v. Steele Cty., 240 Minn. 154, 164, 60 N.W.2d 32, 39-40 (1953)

(county engineer);11 Wilbrecht v. Babcock, 179 Minn. 263, 264, 228 N.W. 916, 916

(1930) (commissioner of highways);12 Stevens v. N. States Motor, Inc., 161 Minn. 345,

348, 201 N.W. 435, 436 (1925) (county highway commissioners). This history not only

indicates the importance of such positions in the performance of government work, but as

11
       In Johnson, we extended immunity to an official who the county had “appointed”
to do the work at issue. 240 Minn. at 157, 60 N.W.2d at 36. We did not discuss whether
that individual was a county employee, and we did not analyze or even discuss the issue
presented in this case. We simply said, “[p]ublic officials and employees are not held
personally liable for acts done honestly in the discretion which the law gives them.” Id.
at 164, 60 N.W.2d at 39-40.
12
       In Wilbrecht, we also took note of the numerous other jurisdictions that have long
granted immunity to this type of official. 179 Minn. at 265, 228 N.W. at 916-17 (citing,
e.g., Browne v. City of Bentonville, 126 S.W. 93 (Ark. 1910); Wadsworth v. Town of
Middletown, 109 A. 246 (Conn. 1920); Schooler v. Arrington, 81 S.W. 468 (Mo. Ct. App.
1904); Hipp v. Ferrall, 91 S.E. 831 (N.C. 1917); Yealy v. Fink, 43 Pa. 212 (1862)).


                                             12
we acknowledged in Wilbrecht, 179 Minn. at 264, 228 N.W. at 916, engineering

determinations on public-works projects, like those made by Bonestroo here, are

precisely the types of discretionary governmental acts that we have long deemed worthy

of official immunity.

      That the duties and responsibilities of municipal engineers have a firm grounding

in Minnesota statutes further supports the application of official immunity to these types

of municipal officials. Although the employment of a permanent, city specific engineer

is not statutorily mandated in Minnesota, the position—and the services provided by like

professionals—is essential to the proper functioning of municipal government.         For

example, a number of statutes reference the city engineer position and impose specific

duties and responsibilities upon city engineers and county highway engineers, as well as

other similarly qualified professionals, who design and plan municipal infrastructure.

See, e.g., Minn. Stat. § 163.07, subd. 1 (2014) (mandating that the county highway

engineer “make and prepare all surveys, estimates, plans, and specifications” for the

highway work of the county);13 Minn. Stat. § 429.041, subd. 2 (2014) (providing for the

supervision of public improvement work “by the city engineer or other qualified

person”); Minn. Stat. § 444.18, subd. 3 (2014) (explaining that prior to a municipality

awarding a contract for the improvement of a storm sewer system, “the council shall

13
        See also, e.g., Minn. Stat. § 165.03, subd. 2(b)(2) (2014) (providing that the
county highway engineer shall regularly inspect municipal bridges located “within a
municipality that does not have a city engineer regularly employed”); cf. Minn.
Stat. § 163.07, subds. 1, 9 (providing that a county board “shall appoint and employ” a
county highway engineer or “contract for the services of a county highway engineer with
a county that appoints and employs such an engineer”).


                                           13
secure from the city engineer or some other competent person a report advising it” about

matters such as feasibility and cost). The duties and responsibilities described in these

statutes are similar to the work the City required of Bonestroo under the PSA. The fact

that the Legislature affirmatively mandated that these functions be performed for some

levels of government further supports application of official immunity here.

       Having determined that the function Bonestroo performed supports the grant of

official immunity, the remaining question, then, is whether official immunity should also

apply to a city engineer retained via contract rather than through a traditional

employment relationship. The particular relationship and close coordination between the

City and Bonestroo here convince us that official immunity should apply to Bonestroo.

       The relationship between the City and Bonestroo is defined in the PSA. The PSA

makes clear that the City did not contract with Bonestroo to independently perform for-

profit tasks. On the contrary, the City contracted with Bonestroo to perform the official

functions of “City Engineer” on the City’s behalf. Bonestroo, which acted through its

engineers, performed these essential governmental tasks, as the City Engineer, in

conjunction with City employees and officials. And in performing these functions, the

PSA provided that Bonestroo acted as the City’s agent. That the City imbued Bonestroo

with the formal title of office, coupled with the authority to bind the City, confirms that

the City considered Bonestroo and its agent engineers to be, in effect, City officials. This

conferred power and authority further supports the grant of official immunity in this case.

       The PSA also contemplated close collaboration between the City and Bonestroo.

Specifically, the City charged Bonestroo with aiding, advising, and working directly with


                                            14
the City regarding the feasibility, design, and progress of the City’s public projects,

including the storm-water drainage system at issue here. While the PSA was in effect,

the City still maintained a vested interest in the planning of its public infrastructure. And

as we stated in Wilbrecht, these types of public works engineering decisions are

“performed solely for the benefit of the public.” 179 Minn. at 264, 228 N.W. at 916

(emphasis added). In effect, Bonestroo operated as an extension of the City government,

rather than as an independent commercial actor. That the City did not remove itself from

the public work at issue, but instead required active collaboration between Bonestroo and

City representatives, also supports the application of official immunity. Cf. Chisolm v.

Miss. Dep’t of Transp., 942 So. 2d 136, 141-42 (Miss. 2006) (concluding that the state

department of transportation was not liable for the acts of its contractor in building a

bridge, as the contractor retained control over the means of meeting the contract

specifications); Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 126 (Tex. 2015)

(declining to extend governmental immunity to a private engineering company that

designed a highway because “the government’s right to control” the contractor’s work

was “utterly absent”).

       Finally, the relationship between the City and Bonestroo, and the required

collaboration between those doing the work and the City, convince us that we ought not

exalt form over substance by focusing solely on the contractual basis by which Bonestroo

exercised its authority as the City Engineer. Bonestroo, although a private firm retained

by contract, performed discretionary functions that required the exercise of judgment for

the benefit of the public. The PSA required that Bonestroo work in close coordination


                                             15
with the City, specifically designated Bonestroo as the City’s “agent,” and explained that

it was more prudent for the City to use its limited resources to retain engineering help on

a periodic and contractual basis. We refuse to penalize the City by categorically denying

vicarious immunity simply because the City believed its limited resources, as a smaller

municipality, were better utilized by retaining its engineering help on a part-time

contractual, rather than a full-time employment, basis.          Cf. Putthoff v. Ancrum,

934 S.W.2d 164, 169-70 (Tex. App. 1996) (granting official immunity to private

physicians under contract to perform the various functions of a county’s medical

examiner’s office).14 We agree with the Supreme Court that the need to ensure that those

who serve the government do so intrepidly and “ ‘with the decisiveness and the judgment

required by the public good,’ is of vital importance regardless [of] whether the

individual . . . state actor works full-time or on some other basis.” Filarsky v. Delia,

___ U.S. ___, 132 S. Ct. 1657, 1665 (2012) (quoting Scheuer v. Rhodes, 416 U.S. 232,

240 (1974)).15


14
       Unless otherwise directed by the Legislature, cities are free to deploy engineering
resources in whatever manner best suits the needs of the community. Here, our analysis
depends substantially on the fact that the City did not have employees who fulfilled
functions similar to Bonestroo. Put another way, the City chose to contract with
Bonestroo to provide engineering services instead of employing a traditional city
engineer. We need not, and do not, reach the issue of whether official immunity might
extend to other arrangements between cities and engineering service providers.
15
       Although we have rejected the notion that “federal immunity principles under
section 1983 also control state law,” Elwood, 423 N.W.2d at 677, we have noted that
“federal decisions interpreting qualified immunity under section 1983, though certainly
not conclusive, are instructive . . . because section 1983 qualified immunity and common
law official immunity further the same purpose.” Rico v. State, 472 N.W.2d 100, 108
                                                         (Footnote continued on next page.)

                                            16
       The Kariniemis argue, however, that Bonestroo’s mandated liability insurance

coverage entirely negates the need for immunity here. We disagree and refuse to limit

the application of immunity under these facts solely because the City required Bonestroo

to procure liability insurance. Although the Supreme Court identified the procurement of

liability insurance as one of the reasons why there was no need for immunity under the

facts of Richardson v. McKnight, 521 U.S. 399, 411, 413 (1997), here, under Minnesota

law, this fact alone does not tip the scales in favor of denying immunity. As a practical

(Footnote continued from previous page.)
(Minn. 1991). The Supreme Court’s decisions in Filarsky and in Richardson v.
McKnight, 521 U.S. 399 (1997), are consistent with our application of official immunity
here.

        In Filarsky, the Court held that a private attorney, temporarily retained by a city to
act as its internal affairs investigator, was not foreclosed from invoking the protections of
qualified immunity under 42 U.S.C. § 1983 (2012) “solely because” he was not a
government employee. ___ U.S. at ___, 132 S. Ct. at 1660. The Court concluded that
the history of common law immunity and the policies animating the doctrine both
weighed in favor of granting immunity. Id. at ___, 132 S. Ct. at 1662-66. Additionally,
the Court explained that individuals working on behalf of smaller cities should not be
denied the protections of immunity simply because smaller cities lack the resources of
larger cities to hire on a full-time basis, and instead “must rely on the occasional services
of private individuals.” Id. at ___, 132 S. Ct. at 1668.

       In Richardson, the Court held that two prison guards working for a private prison
management firm were not entitled to qualified immunity. 521 U.S. at 401. But the
Filarsky Court explained that the combination of circumstances in Richardson—“a
private firm systematically organized to assume a major lengthy administrative task,
(managing an institution) with limited direct supervision by the government,
undertak[ing] that task for profit and potentially in competition with other firms”—
worked “to mitigate the [policy] concerns underlying recognition of governmental
immunity” under section 1983. Filarsky, ___ U.S. at ___, 132 S. Ct. at 1667 (quoting
Richardson, 521 U.S. at 413) (internal quotation marks omitted). The close coordination
and agency relationship between the City and Bonestroo here make this case much
different than Richardson.




                                             17
matter, because individual government actors in Minnesota remain liable for negligently

performed “ministerial” tasks, see Watson, 553 N.W.2d at 414-15, those actors are free

to, and may likely, seek to obtain liability insurance regardless of whether they might be

entitled to common law official immunity under certain circumstances.             But more

importantly, the Kariniemis’ contention ignores the disruptive effect of litigation, and that

the desire to avoid such disruption may deleteriously impact the “decisiveness and the

judgment,” Filarsky, ___ U.S. at ___, 132 S. Ct. at 1665 (quoting Scheuer, 416 U.S. at

240), of government actors such as Bonestroo, whose work is performed “solely for the

benefit of the public,” Wilbrecht, 179 Minn. at 264, 228 N.W. at 916.16

       For the foregoing reasons, we hold that Bonestroo is entitled to common law

official immunity for its discretionary conduct as City Engineer and that the City, in turn,

is entitled to vicarious official immunity.17




16
        At oral argument, the Kariniemis also argued that granting immunity to the City’s
non-employee City Engineer would be at odds with the Municipal Tort Claims Act,
Minn. Stat. §§ 466.01–.15 (2014), and its general rule of liability. The attempted analogy
to statutory immunity principles is not apt within the context of common law official
immunity. See Watson, 553 N.W.2d at 414 (“Official immunity differs from statutory
immunity in that statutory immunity is ‘designed to preserve the separation of powers,’
whereas official immunity primarily is ‘intended to insure that the threat of potential
liability does not unduly inhibit the exercise of discretion required of public officers in
the discharge of their duties.’ ” (quoting Rico, 472 N.W.2d at 107)).
17
       The Kariniemis do not challenge the vicarious application of official immunity
and, therefore, we need not address the merits of that issue.


                                                18
                                            II.

       We next turn to the question of whether the district court properly denied

summary judgment with respect to the nuisance claim.           On appeal from summary

judgment, we assess whether “there are genuine issues of material fact and whether the

district court erred in applying the law.” Sletten, 675 N.W.2d at 299.

       The court of appeals reasoned that the district court erred by concluding that the

City had not “timely raised” immunity with respect to the nuisance claim because

immunity involves the subject matter jurisdiction of courts and, therefore, can be raised at

any time. Kariniemi, 863 N.W.2d at 436. We need not reach this timeliness issue,

however, because the record before us indicates that, from the very beginning, the City

pleaded immunity with respect to all claims arising out of the conduct at issue. In its

answer, the City alleged: “Defendant City’s actions are immune from liability under the

doctrines of official immunity and vicarious official immunity.” And the conduct that

forms the basis for both the negligent design and nuisance claims is the same conduct. In

Sletten, we explained that “our analysis does not focus on the nuisance but rather on the

nature of the underlying governmental activity that caused the nuisance.” 675 N.W.2d at

304 (emphasis added). Here, the activity that allegedly caused the nuisance is activity

that official immunity covers. Accordingly, we hold that the district court erred by

failing to grant the City immunity with respect to the nuisance claim when that claim was

based on the same underlying conduct as the negligent design claim.

       Affirmed.

       CHUTICH, J., took no part in the consideration or decision of this case.


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