                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0796

                               Nathan Kariniemi, et al.,
                                    Respondents,

                                          vs.

                                   City of Rockford,
                                      Appellant.

                               Filed May 18, 2015
                 Affirmed in part, reversed in part, and remanded
                                   Smith, Judge

                             Wright County District Court
                      File Nos. 86-CV-12-7129, 27-CV-12-22558

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

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

      Considered and decided by Chutich, Presiding Judge; Rodenberg, Judge; and

Smith, Judge.

                                   SYLLABUS

      Contractors are protected by official immunity when functioning as city officials.

                                    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

1
  Bonestroo was acquired by Stantec Consulting Services, Inc., in July 2011. But because
the contractor was called Bonestroo at all points relevant to this litigation, we refer to it
as such.

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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


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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



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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


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              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, 132 S. Ct.

1657 (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


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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, “the common law did not draw a

distinction between public servants and private individuals engaged in public service in

according protection to those carrying out government responsibilities.”         Id.   For

example, the Supreme Court noted, judicial immunity extended equally to the

professional judges working at the Supreme Court and to part-time judges and justices of

the peace who “often maintained active private law practices (or even had nonlegal

livelihoods).” Id. at 1664. “Proceed[ing] on the assumption that common-law principles

of . . . immunity were incorporated into our judicial system and that they should not be

abrogated absent clear legislative intent to do so,” id. at 1665 (quotation omitted), the

Supreme Court held that there was “no justification” for denying the investigator the

protections enjoyed by public employees doing the same work, id. at 1668.

       The district court’s reliance on Filarsky is well-founded.         “We have long

presumed that statutes are consistent with the common law, and if a statute abrogates the

common law, the abrogation must be by express wording or necessary implication.”

Brekke v. THM Biomedical, Inc., 683 N.W.2d 771, 776 (Minn. 2004) (quotation omitted).

The facts here are closely analogous to those identified by the Supreme Court as


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commonly found in local governance in the nineteenth century. The city has elected to

contract that function to Bonestroo. A city should not lose vicarious official immunity

merely because it chooses outsource some of its functions. In our view, such a holding

would severely compromise the flexibility of smaller cities as they seek to efficiently

obtain services at a lower volume than that often required by larger cities. Because

Bonestroo was functioning as the city’s engineer, we conclude that the district court did

not err by ruling that Bonestroo enjoyed official immunity for discretionary acts in that

role, including its design of the storm-drainage system.

       The Kariniemis assert that this extension would destroy Minnesota’s Municipal

Tort Liability Statute by, for example, allowing road contractors to escape liability for

“creating dangerous holes in the ground during their construction.” This fear is not well-

founded.   Official immunity for design does not necessitate official immunity for

construction.

       “Unlike statutory immunity, official immunity protects the kind of discretion that

is exercised on an operational rather than a policymaking level. But the discretion

involved with official immunity requires something more than the performance of

ministerial duties.” Sletten, 675 N.W.2d at 301-02 (quotation omitted). “If the activity is

absolute, certain, and imperative, involving the execution of a specific duty arising from

fixed and designated facts, it will be deemed ministerial, and official immunity will not

be available.” Id. at 304. Design involves the application of expertise and discretion,

balancing the often-competing considerations of cost, quality, and aesthetics;

construction executes the requirements of the resulting design. Compare Seaton v. Scott


                                             8
Cnty., 404 N.W.2d 396, 398-99 (Minn. App. 1987) (holding that county had official

immunity for discretionary act of designing a bridge without guardrails unless county had

prior notice that it would produce a dangerous condition), review denied (Minn. Jun. 25,

1987), with Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998)

(holding that city inspector’s failure to comply with statutory directive to “immediately

repair” broken sidewalk slabs was not discretionary act protected by official immunity).

For example, an architect prepares blueprints, and a builder executes the “specific duty

arising from” the design specified by those blueprints. Although the role of builder

undoubtedly involves application of considerable skill and expertise, it cannot be said to

be the same kind of discretion vested in the architect. The architect’s role is professional,

the builder’s ministerial. Accordingly, armoring the architect with official immunity

does not require also armoring the builder. Cf. Shariss v. City of Bloomington, 852

N.W.2d 278, 282-83 (Minn. App. 2014) (holding that snowplow operator’s decision to

move in reverse to avoid obstructing traffic was ministerial because it did not “involve[]

the sort of complex, selective decision-making that is protected by common-law official

immunity”). Similarly, holding that a road-construction contractor functioning as a city

engineer would be protected by official immunity for the design of a roadway does not in

itself foreclose liability for defects in the same contractor’s construction of the roadway.

The Kariniemis’ argument about destroying Minnesota’s Municipal Tort Liability Statute

by extending official immunity to contractors performing city functions is therefore

overblown.




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                                            III.

       The city challenges the district court’s denial of summary judgment on the

Kariniemis’ nuisance claim.     “In an official immunity analysis, notwithstanding the

difference between negligence and nuisance, the focus is on the kind of discretion which

is exercised for immunity to be available . . . .” Id. at 305. Because the Kariniemis allege

that the same conduct by Bonestroo—its design of the storm-drainage system—was

negligent and caused a nuisance, the determination of whether immunity applies is the

same with regard to both types of claims. As discussed above, official immunity applies

to claims arising from Bonestroo’s design. Although the Kariniemis contend that the

record contains conflicting information regarding “who made the policy or engineering

decisions relating to the storm sewer at issue and how independent the engineers were,”

this assertion is without basis in the record. The record is clear that Bonestroo was solely

responsible for functioning as the city’s engineer and for designing the storm-drainage

system. Official immunity therefore bars the Kariniemis’ nuisance claim just as it bars

their negligent-design claim.

       The district court, however, denied summary judgment because it found that the

city had not timely raised immunity with regard to the Kariniemis’ nuisance claims. But

untimeliness cannot be used to bar an immunity claim because such a claim “involves the

issue of subject matter jurisdiction” and therefore “can be raised at any point in the

proceedings.” Schaeffer v. State, 444 N.W.2d 876, 879 (Minn. App. 1989). We therefore

reverse the district court’s denial of summary judgment and remand with instructions to

dismiss the Kariniemis’ nuisance claim.


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                                      DECISION

       Because the Kariniemis do not offer any argument to support their contention that

statutory immunity does not bar their negligent-approval claim and because official

immunity protects contractors when they are functioning as city officials, we affirm the

district court’s grant of summary judgment to the city on the Kariniemis’ negligence

claims. Because official immunity also bars the Kariniemis’ nuisance claims, we reverse

the district court’s denial of the city’s summary judgment motion on that claim and

remand for the district court to dismiss it.

       Affirmed in part, reversed in part, and remanded.




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