Alice Peterson, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1576

Alice Peterson,
Appellant,

vs.

City of Isle,
Respondent.

Filed May 15, 2017
Reversed and remanded
Stauber, Judge

Mille Lacs County District Court
File No. 48-CV-15-920

Arlo H. Vande Vegte, Dovolas & Vande Ve gte, P.L.L.C., Plymouth, Minnesota (for
appellant)

Paul A. Merwin, League of Minnesota Cities, St. Paul, Minnesota (for respondent)

Considered and decided by Rodenberg , Presiding Judge; Stauber, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
STAUBER, Judge
Appellant challenges the summary-judgment dismissal of her personal-injury
claim on grounds of statutory immunity, arguing that the district court erred because
(1) she is not challenging the city’s planning level activity; (2) proof of a city’s actual
knowledge of a defect that it created is not required to preclude immunity under
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Minnesota caselaw; and (3) there is a genuine issue of material fact as to the city’s actual
knowledge of the defect. Because the district court erred by concluding that statutory
immunity was applicable to the challenged governmental conduct, we reverse and
remand for further proceedings.
FACTS
On July 12, 2014, appellant Alice Peterson injured her shoulder after she tripped
on the edge of a raised sidewalk panel while walking on Main Street in Isle, Minnesota.
Peterson sued respondent City of Isle, a municipal corporation, alleging that her injury
was caused by the city’s negligent failure to inspect, repair, and warn of the defect.
The sidewalk was constructed in 2008 under the management of a city engineer.
The city contracted out the construction work, and a construction plan was developed
establishing certain quality-review and warranty terms. The sidewalk was within the
Minnesota Department of Transportation’s (MNDOT) right-of-way jurisdiction and
subject to MNDOT codes, specifications, and requirements.
After construction, in August 2009, supervising engineers performed a walk-
through inspection of the project with city staff and made notes of any problems. A
warranty list was created containing 19 items that required repair. Two of the items were
near where Peterson tripped, but the list made no mention of the defect that caused her
injury.
Peterson sought two expert opinions regarding the sidewalk. Fredrick Patch, a
certified building official, concluded that the raised sidewalk panel was the result of a
construction error, mismatched slopes or gradients in the original construction, which did
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not meet MNDOT’s specifications. Patch concluded that there “was no evidence that
either settling or frost heave” caused the defect.
Jon Bogart, an engineer, found it likely that frost heave caused the defect. Bogart
based his determination on a photograph showing that the sidewalk in front of a store
near where Peterson tripped was ground down “presumably so that the doors could be
opened.” Bogart found it unlikely that the concrete was “placed so high that the doors
could not be opened” and concluded that the sidewalk in front of the store was heaved up
by frost over the course of the winter of 2008-2009. As such, Bogart concluded that frost
heave also likely caused the defect that caused Peterson’s injury.
In July 2016, the city moved for summary judgment, claiming that (1) Peterson is
challenging discretionary policy decisions regarding sidewalk maintenance, and her claim
is therefore barred pursuant to statutory immunity granted under Minn. Stat. § 466.03
(2016); (2) Peterson cannot put forth a prima facie case of negligence because there is no
evidence that the city had actual or constructive knowledge of any problem with the
sidewalk; and (3) the sidewalk defect was an open and obvious danger. The city offered
evidence of its sidewalk maintenance policies and procedures.
Peterson opposed the city’s motion, arguing that (1) her claim is not based upon
negligence in maintaining the sidewalk, but rather negligent construction and conduct,
and therefore statutory immunity is inapplicable; and (2) there is a genuine issue of
material fact as to the city’s actual knowledge of the defect. In her memorandum in
opposition, Peterson further defined her claim, stating that “discovery in the case has
demonstrated” that the sidewalk defect “arose out of the general contractor’s and the
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[c]ity [e]ngineer’s conduct in implementation of the construction plans/specifications and
contract respecting new sidewalks in 2008 and 2009.” Specifically, she alleges that the
“sidewalk was never built to code or to plans/specs and was also susceptible to frost
heave in the first winter after its fall 2008 construction.”
The district court granted summary judgment in favor of the city, finding that the
city was entitled to statutory immunity. The district court acknowledged that Peterson
was alleging defective construction, but concluded that there was insufficient evidence
that the city created the defect and statutory immunity was applicable because the city
had no actual notice of the defect. This appeal followed.
D E C I S I O N
In reviewing a grant of statutory immunity on summary judgment, “we must
determine whether there are genuine issues of material fact and whether the district court
erred in applying the law.” Schroeder v. St. Louis County, 708 N.W.2d 497, 503 (Minn.
2006). Summary judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, 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. On appeal from summary
judgment, appellate courts review de novo “whether there are any genuine issues of
material fact and whether the district court erred in its application of the law to the facts.”
Commerce Bank v. W. Bend Mut. Ins. Co., 870 N.W.2d 770, 773 (Minn. 2015).
Appellate courts “view the evidence in the light most favorable to the party against whom
summary judgment was granted.” Id.
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I. Statutory Immunity – Cha llenged Governmental Conduct
Peterson argues that the district court erred by granting summary judgment on
statutory immunity grounds. Whether certain governmental action is protected by
statutory immunity is a legal question that we review de novo. Minder v. Anoka County,
677 N.W.2d 479, 483 (Minn. App. 2004). Generally, a municipality is subject to liability
for torts “of its officers, employees and agents acting within the scope of their
employment or duties.” Minn. Stat. § 466.02 (2016). However, statutory, or
discretionary, immunity is an exception to this general rule. Minder, 677 N.W.2d at 483-
84. “Statutory immunity is based on the separation of powers and is intended to prevent
judicial review, through the medium of a tort action, of executive and legislative policy-
making decisions.” Id. at 484. Statutory immunity is a threshold issue that is addressed
prior to any determination of breach of duty. Id. at 483.
Municipalities are immune from tort liability “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. In defining a “discretionary
function or duty,” as referenced under Minn. Stat. § 466.03, subd. 6, “appellate courts
distinguish between planning and operational decisions.” Minder, 677 N.W.2d at 484.
Planning decisions are protected as discretionary actions, while operational decisions
relating to day-to-day operations are not protected. Id. Determining whether the
challenged government conduct involves a planning decision or an operational decision is
central to a statutory-immunity analysis. As such, “[t]he first step in analyzing a claim of
statutory immunity is to identify what governmental conduct is being challenged.” Id.
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Once statutory immunity is asserted, “the plaintiff then has the burden to articulate
specifically the claim that must be scrutinized to determine the immunity issue and to
make some showing of fact to suggest the basis for the claim.” Gerber v. Neveaux, 578
N.W.2d 399, 403 (Minn. App. 1998), review denied (Minn. July 16, 1998).
After statutory immunity was asserted, Peterson argued that the city’s negligent
failures “arose out of the general contractor’s and the [c]ity [e]ngineer’s conduct in
implementation of the construction plans/specifications and contract respecting new
sidewalks in 2008 and 2009.” Specifically, the “sidewalk was never built to code or to
plans/specs and was also susceptible to frost heave in the first winter after its fall 2008
construction,” and the city engineer failed to ensure compliance with said plans/specs. In
sum, the challenged governmental conduct is the construction of a defective sidewalk and
subsequent failure of the city engineer to comply with quality-review and warranty
inspection terms.1
II. Genuine Issue of Material Fa ct – Defective Construction
To avoid summary judgment Peterson must produce sufficient evidence of a
defect either created at the time of construction or arising as a result of frost heave by
August 2009. See id. (noting that the plaintiff must “make some showing of fact to
suggest the basis for the claim”).

1 The district court determined that Peterson was challenging “the implementation of the
general contractor’s performance and the [c]ity [e]ngineer’s judgment in
implementing/enforcing construction plans/specifications and the contract provisions
respecting sidewalk warranties in the fall of 2008 and late summer of 2009.” This is
consistent with our determination of the challenged governmental conduct.
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The district court stated that Peterson’s argument that the city “was the cause of
the defect is supported only by one of [the] expert witnesses who concluded that the
mismatched cross slopes are the cause of the defect and that the cross slopes are an
original construction defect not caused by frost heave.” And the district court found this
opinion to be a bare conclusion insufficient to create a genuine issue of material fact. We
disagree. There remains a genuine issue of material fact as to whether the city created the
sidewalk defect.
Peterson’s expert, Patch, provided more than a bare conclusion. Patch observed
the area on two occasions and concluded that roof and surface drainage flowed away
from the area of the relevant sidewalk panel and there was no “evidence that either
settling or frost heave” caused the alleged defect, though he did conclude that the panels
to the east “had heaved due to frost accumulation,” which is consistent with the opinion
of Peterson’s other expert, Bogart. Patch noted that there was no evidence, such as a
horizontal line along the nearby building wall, to indicate settling. He believed the two
sidewalk panels at the location where Peterson tripped were constructed at different times
due to the existence of “control joint material.” He also noted numerous sidewalk panels
in the area with excessive slope.
Peterson’s other expert, Bogart, could not determine if the sidewalk construction
was completed according to specifications because he could not determine whether a
sand base was installed beneath the sidewalk. As the susceptibility of the underlying soil
to frost heave could not be determined, Bogart based his opinion that the injurious defect
likely resulted from frost heave on a photograph of a nearby defect in front of a store
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entrance. Both experts concluded that frost heave caused the defect in front of the store
entrance, but reached different conclusions as to the impact of that frost heave on the area
where Peterson tripped.
Viewing the evidence in a light most favorable to Peterson, there is sufficient
evidence to create a genuine issue of material fact as to when and how the defect came
into existence. See Commerce Bank, 870 N.W.2d at 773 (noting that appellate courts
“view the evidence in the light most favorable to the party against whom summary
judgment was granted”). The opinion of Patch that the raised sidewalk panel was a
construction defect, and his observations supporting that opinion, are sufficient evidence
to allow “reasonable persons to draw different conclusions” as to when and how the
defect arose. Schroeder, 708 N.W.2d at 507. Given that there is sufficient evidence to
create a genuine issue of material fact over whether the sidewalk defect was created
during construction, it follows that there is sufficient evidence to support the claim that
the defect should have been discovered by the city engineer during quality-review
inspections, as the defect would have been present during those inspections.
However, Peterson has failed to present facts to support the theory that the defect
arose during the first winter after construction as a result of frost heave. Though
Peterson’s expert, Bogart, concluded that frost heave likely caused the injurious defect,
there was no opinion rendered as to exactly when this occurred, and Patch opined that the
defect was not caused by frost heave. See Gerber, 578 N.W.2d at 403 (noting that the
plaintiff must “make some showing of fact to suggest the basis for the claim”).

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III. Notice
The district court concluded that the city had no actual knowledge of the defect, so
under the precedent set forth in Minder, Peterson’s claims could not survive statutory
immunity. 677 N.W.2d at 486. However, actual notice is not required if the
governmental body created the defect. See id. at 486 (stating that a failure-to-warn claim
requires that the “governmental body must have created or had actual notice of the
alleged dangerous condition”); see also Larson v. Twp. of New Haven, 282 Minn. 447,
454, 165 N.W.2d 543, 547 (1969) (stating actual or constructive notice of a defect is not
required if a municipality created the defect).
2 Therefore, based on Peterson’s claim that
the municipality created the defect, actual knowledge was not required in this instance.
IV. Operational or Discretionary
Having ascertained what government conduct is being challenged, and after
determining both that there is sufficient evidence for the claim to survive summary
judgment and that Minder does not bar the claim due to a lack of actual notice, it must

2 It has been stated numerous times in Minnesota caselaw that a city’s liability is limited
to those instances where the city has actual or constructive notice of the dangerous
condition. See e.g., Hansen v. City of St. Paul, 298 Minn. 205, 207-08, 214 N.W.2d 346,
348 (1974) (citing Cleveland v. City of St. Paul, 18 Minn. 279 (1872)); Seaton v. County
of Scott, 404 N.W.2d 396, 398 (Minn. App. 1987), review denied (Minn. June 25, 1987);
Johnson v. County of Nicollet, 387 N.W.2d 209, 212 (Minn. App. 1986). But there is an
exception to this general rule if the city created the condition. Larson, 282 Minn. at 454,
165 N.W.2d at 547; see Cleveland, 18 Minn. 279, 287 (stating that if condition was
created with permission of the city, “the city was conclusively chargeable with notice”);
see also Kleopfert v. City of Minneapolis, 93 Minn. 118, 121, 100 N.W. 669, 670 (1904)
(stating that notice was not required where employee of city created the dangerous
condition); Orville C. Peterson, Governmental Responsibility for Torts in Minnesota, 26
Minn. L. Rev. 480, 518 (1942) (stating actual and constructive notice of a defect are
required unless officers or employees of a municipality cause the defective condition).
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next be determined whether the challenged conduct is protected discretionary conduct or
unprotected operational conduct. “The issue is not whether the government action
involved the exercise of discretion in a general sense, because almost every government
function does involve some exercise of discretion, but rather whether the challenged
activity involved a balancing of policy objectives.” Zank v. Larson, 552 N.W.2d 719,
721 (Minn. 1996) (quotation omitted). The burden is on the city to demonstrate facts
showing it is entitled to statutory immunity. Minder, 677 N.W.2d at 484. Here, the city
failed to show that the challenged conduct involved protected discretionary conduct.
Regarding the defective construction, Peterson does not attack the sidewalk
maintenance policies or the construction plan or design. Rather, she asserts that the
applicable MNDOT specifications were not followed and, therefore, the city did not
implement the plan. See Seaton, 404 N.W.2d at 398 (stating that statutory immunity
“must be narrowly construed” and that conduct putting into effect a predetermined plan
constitutes an operational act).
Peterson’s claim that the defect should have been discovered during inspections by
the city engineer presents a more difficult determination. The city engineer’s failure to
comply with established quality-review procedures is an operational act. But, conversely,
a claim that the city should have implemented more rigorous inspection procedures is an
attack on a discretionary decision. The specific governmental action being challenged
becomes crucial in these instances. See Riedel v. Goodwin, 574 N.W.2d 753, 756 (Minn.
App. 1998) (noting that “the precise governmental conduct at issue” must be examined),
review denied (Minn. Apr. 30, 1998). Here, Peterson’s challenge is best characterized as
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asserting a failure of an employee to carry out a policy by not implementing the
applicable quality review procedures. As such, the governmental conduct at issue is
operational, not discretionary. In sum, the conduct challenged in this case is not
protected by statutory immunity.
V. Negligence - Notice of the Defect – Open and Obvious
The city argues that, even if statutory immunity is inapplicable, Peterson has failed
to put forth sufficient facts to support a negligence claim because there was no actual or
constructive notice of the defect, and therefore insufficient evidence of duty and breach.
Further, the city argues that we should affirm because the defect was open and obvious.
Peterson argues that a genuine issue of material fact remains as to the city’s actual
knowledge of the defect because of “strong circumstantial proof” based on the testimony
of Peterson’s experts. Peterson further urges this court not to address the city’s
arguments concerning both the adequacy of Peterson’s negligence claim and the open and
obvious nature of the defect.
Generally we review only issues presented to and decided by the district court.
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). The district court did not address the
city’s arguments that Peterson failed to put forth a prima facie case of negligence and that
the alleged defect was open and obvious. But the district court did conclude that there
was no evidence of actual notice. As such, we shall address the issue of notice.
When, as here, there is sufficient evidence to support a claim that a municipality
created a defect that is not latent, then neither actual nor constructive notice is required.
Larson, 282 Minn. at 454, 165 N.W.2d at 547; McDonald v. City of Duluth, 93 Minn.
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206, 209, 100 N.W. 1102, 1104 (1904); but cf. Gerber, 578 N.W.2d at 403-04 (affirming
statutory immunity where plaintiff’s negligence claim was not supported by showing of
improper construction).
Lastly, the city argues that we should affirm because the defect at issue was an
open and obvious danger. Peterson urges us not to address this issue, and alternatively
she argues that she did not observe the defect because of distracting circumstances. The
district court did not address the issue, and we shall not address whether the defect was
open and obvious as a matter of law. See Olmanson v. LeSueur Cnty., 693 N.W.2d 876,
881 (Minn. 2005) (stating that, generally, “whether a condition presents a known or
obvious danger is a question of fact”); Van Gordon v. Herzog, 410 N.W.2d 405, 406
(Minn. App. 1987) (stating that distracting circumstances are factors a jury may consider
in assessing the obviousness of a danger).
In sum, genuine issues of material fact remain as to whether the city created a
defective sidewalk and the city engineer failed to comply with quality-review and
warranty inspection terms, and said conduct is not protected by statutory immunity. On
remand, Peterson’s negligence claim should be limited to the specific theories of
negligence put forth.
Reversed and remanded.