                          This opinion will be unpublished and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
                                     A16-0782

                                       Kie Vang,
                                      Respondent,

                                           vs.

                                  Joshua Paul Forsman,
                                       Defendant,

                               Ely Chamber of Commerce,
                                      Defendant,

                                       City of Ely,
                                       Appellant,

               Minnesota State Colleges and Universities Board of Trustees,
                                       Defendant.

                                Filed December 5, 2016
                                       Affirmed
                                     Worke, Judge

                             St. Louis County District Court
                       File Nos. 69VI-CV-14-444, 62-CV-14-1428

Arlo H. Vande Vegte, Neil G. Clemmer, Dovolas & Vande Vegte, PLLC, Plymouth,
Minnesota (for respondent)

Patrick L. Arneson, League of Minnesota Cities, St. Paul, Minnesota (for appellant)

         Considered and decided by Cleary, Chief Judge; Worke, Judge; and Bratvold,

Judge.
                        UNPUBLISHED OPINION

WORKE, Judge

       Appellant-city argues that the district court erred in denying its motion for

summary judgment and concluding that the city was not entitled to statutory immunity

under Minn. Stat. § 466.03 (2014). We affirm.

                                        FACTS

       For more than 20 years, defendant Ely Chamber of Commerce has been hanging

holiday decorations in appellant City of Ely. The chamber hangs the decorations because

it believes the decorations will attract tourists, and tourists benefit local merchants by

patronizing their businesses. The chamber has to get approval from the city to hang the

decorations because the city owns the streetlights from which the decorations hang.

Volunteers hang the decorations.

       In October 2012, the chamber requested the city’s assistance in hanging the

holiday decorations for the upcoming holiday season, as it had done in previous years.

At a meeting on November 7, 2012, the city council voted unanimously to approve the

chamber’s request.

       On November 15, 2012, during the chamber’s holiday-decorating event, a

volunteer, respondent Kie Vang, was injured. Vang filed a complaint against the city and

others alleging that the city’s negligence caused his injury. The city moved for summary

judgment, claiming, among other things, that it had statutory discretionary immunity

from liability.   The district court denied the city’s motion for summary judgment,

concluding that the city was not entitled to statutory immunity because there was no


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evidence that the city’s decision to engage in the holiday-decorating event was a

planning-level decision to which statutory immunity extends. This appeal follows.

                                     DECISION

       This court “review[s] a district court’s summary judgment decision de novo. In

doing so, [this court] determine[s] whether the district court properly applied the law and

whether there are genuine issues of material fact that preclude summary judgment.”

Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn.

2010) (citation omitted).     Summary judgment must be granted “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with [any]

affidavits . . . show that there is no genuine issue as to any material fact and that either

party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. The moving

party has the burden of showing the absence of a genuine issue of material fact.

Anderson v. State Dep’t of Nat. Res., 693 N.W.2d 181, 191 (Minn. 2005). A genuine

issue of fact exists when reasonable minds can draw different conclusions from the

evidence presented. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). “[A]ll doubts

and factual inferences must be resolved against the movant and in favor of the party

opposing the motion.” Juvland v. Plaisance, 255 Minn. 262, 269, 96 N.W.2d 537, 542

(1959).

       The city argues that it is entitled to statutory discretionary immunity as a matter of

law because Vang’s claims are “fundamentally based on a protected exercise of

discretion.” Whether a government entity is protected by immunity is a legal question

that this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). The


                                             3
city, as the party asserting immunity as a defense, has the burden of demonstrating facts

that show its entitlement to immunity. See Rehn v. Fischley, 557 N.W.2d 328, 333

(Minn. 1997).

       A city is immune from liability as to “[a]ny claim 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.          The discretionary-function

exception to governmental tort liability advances the separation-of-powers doctrine in

that the “judicial branch . . . should not, through the medium of tort actions, second-guess

certain policy-making activities that are legislative or executive in nature.” Nusbaum v.

County of Blue Earth, 422 N.W.2d 713, 718 (Minn. 1988). But while “almost every act

involves some measure of discretion . . . undoubtedly not every act of government is

entitled to discretionary immunity.” Id. at 719 (quotation omitted).

                      Government conduct is considered discretionary and
              thus protected by statutory immunity when the [city]
              produces evidence that the conduct was of a policy-making
              nature. . . . Statutory immunity is extended when there has
              been a planning-level decision; that is, social, political, or
              economic considerations have been evaluated and weighed as
              part of the decision-making process. Statutory immunity does
              not extend to operational-level decisions, those involving
              day-to-day operations of government, the application of
              scientific and technical skills, or the exercise of professional
              judgment.

Schroeder v. St. Louis Cty., 708 N.W.2d 497, 504 (Minn. 2006) (citations omitted).

       This court’s analysis begins with identification of the precise government conduct

being challenged. Id. The district court identified the city’s conduct as “agreeing to

assist” in the chamber’s holiday-decorating event.       Although the city identifies the


                                             4
conduct as “the [c]ity’s policy of allowing the [c]hamber to run its streetlight decorating

event without [c]ity training or supervision,” the record shows that each year the chamber

requested the city’s assistance in hanging holiday decorations and the city approved the

request for assistance.     The record supports the district court’s identification of the

government conduct as the city agreeing to assist the chamber in its holiday-decorating

event.

         The district court concluded that the city is not entitled to discretionary immunity

because it failed to demonstrate that it made a policy decision to assist the chamber in its

holiday-decorating event.     The city claims that it has been following this policy of

allowing the chamber to run its holiday-decorating event for years and made the policy

after considering several factors. The city asserts that its operations director’s affidavits

shows the factors that were considered before the policy decision was made. Combined,

the city’s operations director’s affidavits stated:

               The [c]ity had been following this policy for years, because
               the [c]ity had limited resources in terms of time, money, and
               personnel; no one had been injured decorating the streetlights
               and there was no reason to believe anyone would be injured
               with the [c]hamber in charge of decorating; the [c]hamber had
               an interest in decorating the streetlights to beautify the town
               in an effort to increase tourism and commerce; and the [c]ity
               decided, based on all of the circumstances, that the best
               policy at that time was to permit the [c]hamber to decorate the
               streetlights.
                       ....

                     When the [c]ity decided to once again give the
               [c]hamber permission to hang [decorations] in November
               2012 . . . that decision was based on the same factors as in
               previous years.



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       While the affidavits describe planning and weighing of factors, which would

entitle the city to discretionary immunity, the affidavits are the only evidence in the

record supporting this conclusion. The record contains no other evidence that economic,

social, or regulatory issues were discussed and balanced by city representatives. While

we agree with the city that no written policy was necessary to support a conclusion that

the city’s conduct was a planning-level decision, we disagree with the city’s conclusion

that the operations director’s affidavits are sufficient to entitle the city to discretionary

immunity. See id. at 504-05 (holding that county was protected by statutory immunity

when there was no written policy, but evidence of a long-standing practice that embodied

a policy generated through a balancing process).

       The record shows that the city has been approving requests from the chamber for

assistance with its holiday-decorating event for many years. While we agree with the

city’s assertion that a planning-level decision does not have a “shelf life” and can be

renewed, we see nothing in the record before us showing what factors were considered

when the initial decision was made. The city provided meeting minutes for several years

that indicate near identical notations regarding the city’s response to the chamber’s

request for assistance with the holiday-decorating event, which is approval without

discussion. There is nothing in the record showing that the city council ever discussed

cost, expendable resources, potential injuries, or the desire to attract tourism. The city

had the burden of demonstrating why it made the decision to assist the chamber, but it

failed to do so.     Without evidence showing that any planning-level factors were

considered, we cannot conclude that the city’s conduct was a planning-level decision


                                             6
entitling it to discretionary immunity. Therefore, the district court did not err in denying

the city’s motion for summary judgment.

       Affirmed.




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