The conditions are pretty much spot on for flooding right now. One of the things we rely on our cities to do, and why we pay taxes, is to ensure water flows away from our property. We don't have control over the water runoffs in that we can't construct drain systems and sewer pipes. What happens though if your city botches the drainage process?
The Minnesota legislature, by statute, waived sovereign immunity for tort liability. See Minn. Stat. § 466.02 (2004). But there are exceptions. See Minn. Stat. § 466.03 (2004). One such exception is for "[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. "Whether governmental action is protected by statutory immunity is a question of law, which this court reviews de novo." Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn. 2000). This court interprets the discretionary-function exception narrowly. Id.
There are two types of discretionary functions: planning level and operational level. Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994). Only planning-level functions are protected by statutory immunity. Id. Planning-level functions "require evaluating such factors as the financial, political, economic, and social effects of a given plan." Unzen v. City of Duluth, 683 N.W.2d 875, 882 (Minn. Ct. App. 2004), review denied (Minn. Oct. 27, 2004). "Operational-level decisions, in contrast, are those actions involving the ordinary, day-to-day operations of the government . . . ." Id.
Let's say you live in Mahtomedi or Hugo. Those cities are government entities with special immunities and responsibilities. The first point of analysis is whether the city is immune from liability. A governmental unit is only entitled to immunity when "it can produce evidence" that its actions were the result of planning and policy-making; the city has the burden of proving that it engaged in protected planning-level activities and is entitled to immunity. Conlin v. City of St. Paul, 605 N.W.2d 396, 402 (quotation omitted). The court must "identify the conduct at issue" before it can determine whether it is protected. Id. at 400. Next, the court must determine whether that conduct is operational or policy-making. Angell v. Hennepin County Reg'l Rail Auth., 578 N.W.2d 343, 347 (Minn. 1998).
A city's analysis and election to perform maintenance or repairs are generally actions that make the city immune from liability. But, if in the execution of those functions the city makes mistakes that lead to property damage or your loss of property, liability can arise. In particular, if the damages you sustained were the result of foreseeable events, the city can be made to pay.
Hopefully, your lawn just gets a good soaking this spring. If you get something more and think your city should have done something different or better, we can talk about your potential recourse against the government.
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