Laureen Dvorak, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0649

Laureen Dvorak, et al.,
Appellants,

vs.

City of Madison,
Respondent.

Filed December 9, 2019
Affirmed
Rodenberg, Judge

Lac Qui Parle County District Court
File No. 37-CV-18-14

John E. Mack, Joel A. No vak, New London Law, P.A., New London, Minnesota (for
appellants)

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

Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellants Laureen Dvorak and Timothy Judovsky appeal from the district court’s
judgment dismissing their negligence claims for want of proof and based on vicarious
official immunity, and from its order denying their motion for a new trial. Appellants argue
that the district court erred when it found that appellants fa iled to prove that respondent

2
City of Madison (the city) wa s negligent and in c oncluding that the city is entitled to
vicarious official immunity. We affirm.
FACTS
In 2010, the city started a three-year, ten-million-dollar project to upgrade its storm-
and sanitary-sewer systems. Only two segments of the system were not replaced because
the Minnesota Department of Transportation denied permission to disrupt the highways
under which those two segments run. The city also spent over four million dollars
upgrading its wastewater-treatment facility by installing three new pumps.
Appellants own and reside toge ther in a house in Madison that is served by the city’s
sewer system. On August 11, 2016, a torren tial rain fell on the c ity. The wastewater-
treatment facility was fully operational at that time. The following timeline is taken from
the district court’s findings of fact, none of which are challenged on appeal.
Around 4:00 a.m., Mr. Vonderharr, the wast ewater operator for the city, received a
call on his work cellphone from the Supervis ory Control and Data Acquisition (SCADA)
system. The SCADA system monitors the wastewater-treatment facility and automatically
calls out to a programmed list of phone numbers if any alarms are activated. It continues
to call out to the programmed phone number s until someone answers. The first two
numbers on the list are Vonderharr’s work cellphone and his home phone. The call
Vonderharr received on August 11 concerned a high-water alarm at the wastewater-
treatment facility. Vonderharr immediately went to the wastewater-treatment facility.
When Vonderharr arrived at the facility, he checked the SCADA display board and
saw that the wet well, where all sewage first enters the system, was highlighted as having

3
a high water level. The level of water in the wet well was then at about six feet. Anything
over five feet is considered to be a high water level.
Vonderharr also observed the pumps. He noticed that all three pumps were running
at 100% capacity, so he monitored the leve l of the water in the wet well for about 20
minutes. The water level in the wet well di d not change during that time. Based on
Vonderharr’s experience, he concluded that the system was satisfactorily handling the
flow. Around 4:30 a.m., Vonderharr left the wastewater-treatment facility and returned
home.
Dvorak awoke around 5:30 a.m. and heard sounds coming from her basement. She
arose and turned on the lights. When she looked in the basement, she saw about six-inches
of standing water. She went downstairs, saw water coming out of her toilet, and screamed
for appellant Judovsky.
Around 5:45 a.m., Dvorak called the wast ewater-treatment facility because of the
foul smell of the water in appellants’ baseme nt. There was no answ er and no answering
machine. Judovsky tried calling the water-plant operator, Ms. Chester, but got no answer.
Eventually appellants were told by Chester’s son that Mr. Broin, the water-plant supervisor,
would be notified.
Around 6:00 a.m., Broin received a ph one call from the water-plant operator
informing him of a sewer backup in appellants’ basement. Broin immediately went to the
area of town where appellants lived and opened two manholes that were downstream from
appellants’ house. Water was not coming out of the manholes, but the water levels were

4
higher than Broin thought they should be. Broin called Vonderharr to report what he saw
and to tell him that they should deploy portable pumps to start bypassing the system.
After receiving the call from Broin, Vonde rharr went back to the wastewater-
treatment facility. When he arrived, all th ree pumps were still runn ing. Vonderharr got
additional portable pumps and used them to help alleviat e the load on the system. Broin
and Vonderharr also borrowed and set up a larger portable pump around 7:00 a.m. Around
8:30 a.m., the water drained from appellants’ basement.
Vonderharr formed the opinion that the storm-water system was full because of the
heavy rainfall, which caused the older storm-water pipes—that the city was not allowed to
replace—to leak into the sanitary-sewer system. Speculation began that the sewer backup
may have been caused by too many residents discharging their sump pumps into the
sanitary-sewer system in violation of a city ordinance prohibiting such discharge.
Appellants filed a complaint alleging four negligence causes of action against the
city: (1) negligent failure to monitor and enforce sewer-rela ted ordinances; (2) negligent
failure to reasonably monitor, operate, an d maintain the sewage-disposal facility;
(3) negligent failure to take reasonably prom pt preventative actions prior to August 11,
2016; and (4) negligent failure to either have adequate emergency measures to prevent or
minimize damage, or adequate means by which residents could contact city personnel to
facilitate the prevention or minimization of damages.
Following a court trial, the district court found that the city was not negligent, and
further determined that offici al immunity and vicarious o fficial immunity applied to

5
preclude appellants’ claims. Appellants moved for a new tria l, which the district court
denied.
This appeal followed.
D E C I S I O N
The record supports the district court’s findi ng that appellants failed to prove that
the city was negligent.

Appellants argue that the district court erred by finding that the city was not
negligent under any of the four asserted causes of action for negligen ce. Appellants also
argue that the district court’s ultimate findings of fact concerning negligence contradict its
factual findings concerning Vonderharr’s actions.
At oral argument, appellants conceded that they were not substantially challenging
the district court’s finding of no negligence concerning the third asserted cause of action.
Appellants principally argue that the district court erred concerning the second cause of
action, which implicates the first and fourth causes of action.
“In an appeal from judgment following a court trial, we defer to the district court’s
findings of fact unless clearly erroneous.” Friend v. Gopher Co., Inc., 771 N.W.2d 33, 37
(Minn. App. 2009). “A finding is clearly erroneous when there is no reasonable evidence
to support the finding or when an appellate court is left with the definite and firm conviction
that a mistake occurred.” State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012). As noted,
appellants do not expressly challe nge the district court’s finding s of the underlying facts.
Appellants’ arguments on appeal relate to whether those findi ngs of fact are internally
consistent and whether they demonstrate negligence.

6
“[T]o make a prima facie case of negligence in a sewage-backup case, the plaintiff
must prove that the defendant owed plaintiff a duty, that there was a breach of that duty,
that the breach proximately caused the plaintiff’s damages, and that the plaintiff did in fact
suffer injury.” Jindra v. City of St. Anthony , 533 N.W.2d 641, 643 (Minn. App. 1995).
“[W]here a sewer causes damage to private property, a municipality is liable for the
damages sustained after notice of the condition and a reasonable opportunity to remedy it.”
Lawin v. City of Long Prairie , 355 N.W.2d 764, 767 (Minn. App. 1984). Notice can be
actual or constructive. Jindra, 533 N.W.2d at 644.
Concerning the first cause of action, the di strict court found that the city “was not
negligent in failing to monitor and enforce sewer-related ordinances” because the city had
no duty under the city ordinances to enter homes and inspect sump-pump systems. The
district court also found no breach of any duty because the record contains no evidence that
the city had notice, before August 11, 2016, of anyone violating th e city ordinance by
disposing of storm-water into the sanitary-sewer system.
Concerning the second cause of action, the district court found that the city “was
not negligent in failing to reasonably monitor, operate, and maintain the sewage[-]disposal
facility” because the city wa s not aware of any “maintenance or operational issues”
concerning the upgraded facility, and the SCADA alert system was reasonable and working
properly.
Concerning the third cause of action, the district court found that the city reasonably
believed that the sanitary-sewer system was working properly on the night in question and

7
therefore did not need to ta ke any “prompt prev entative measures” beyond the measures
actually taken.
Concerning the fourth cause of action, th e district court found that appellants had
not shown the city to be ne gligent by failing to have “ad equate emergency measures
[or] . . . adequate means by which residents c ould contact [c]ity personnel” because “the
methods available to the public to reach sewer maintenance personnel are reasonable.”
The district court’s findings of fact and the record reasonably support the district
court’s conclusion that the city was not negligent. Vonderharr responded to the SCADA
alert call. He went to the wastewater-treatment facility, identified the cause of the SCADA
alert as a high water level in the wet well, and observed the wet well for about twenty
minutes. Based on his experience, Vonderharr determined that the three pumps in the wet
well were handling the flow because the observed water level did not rise during that time.
Vonderharr determined that no further action was necessary. He was not then aware of
any city residents having issues with flooding or sewer backup. Moreover, the city’s storm-
and sanitary-sewer water systems had recently been renovated, and the city had recently
upgraded the wastewater-treatment facility. The new systems and facility were completely
operational, and the city had no reason to think that the systems were not operating
properly.
On these facts, the district court might ha ve found that Vonderharr’s actions were
not reasonable in light of the circumstances that emerged during and after a rainfall of over
four inches. But the district court found th at Vonderharr’s actions were reasonable. The
record supports the district court’s findings and reasoning. That the record could support

8
different findings than those the district court made is no indication of error. Vangsness v.
Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000). The dist rict court is tasked with
finding facts, and we defer to the district c ourt’s findings when the record supports them.
Friend, 771 N.W.2d at 37. Appellants do not cha llenge those findings of fact which, in
turn, reasonably support the district court’s conclusion that the city was not negligent. We
decline to substitute our view of the facts for that of th e district court, which heard the
testimony and is best positioned to find the facts.
The district court did not err by alternatively concluding that the city is protected by
vicarious official immunity.

Appellants argue that Vonderharr is not entitled to official immunity and that,
accordingly, the city is not entitled to vicarious official immunity. Appellants also contend
that the city is not entitled to vicarious o fficial immunity becau se it contributed to
Vonderharr’s negligence.
Because the record supports the district court’s determination that Vonderharr was
not negligent, as discussed ab ove, we do not further address the argument that the city’s
own fault contributed to any negligence on the part of Vonderharr.
The district court found that Vonderharr is protected by official immunity because
his “response was appropriate to the situa tion and was based on a discretionary judgment
that he made at the scene.” The district cour t further concluded that the city is entitled to
vicarious official immunity.
“The applicability of immunity is a lega l question that we review de novo.”
Kariniemi v. City of Rockford , 882 N.W.2d 593, 599 (Minn. 2016). The purpose of the

9
official-immunity doctrine is to ensure that “individual gove rnment actors [are] able to
perform their duties effectively, without fear of personal liability that might inhibit the
exercise of their independent judgment.” Id. at 600 (quotation omitted). The decision to
grant official immunity generally “turns on: (1) the conduct at i ssue; (2) whether the
conduct is discretionary or ministerial and, if ministerial, whether any ministerial duties
were violated; and (3) if discretionary, whet her the conduct was willful or malicious.”
Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014).
“[V]icarious official immunity protects the government entity from suit based on
the official immunity of its employee.” Wiederholt v. City of Minneapolis , 581 N.W.2d
312, 316 (Minn. 1998). Vicarious official immunity will be applied “when failure to grant
it would focus stifling attention on an offici al’s performance to the serious detriment of
that performance.” Schroeder v. St. Louis County , 708 N.W.2d 497, 508 (Minn. 2006)
(quotations omitted). While a grant of vicarious official immunity is not automatic,
immunity is generally extended. Sletten v. Ramsey County, 675 N.W.2d 291, 300 (Minn.
2004).
We see no error in the district court’s conclusion that the city is entitled to vicarious
official immunity. Much like we concluded in Nordlie v. City of Maple Lake , No.
A05-1321, 2006 WL 923649, at *5 -6 (Minn. App. Apr. 11, 2006), review denied (Minn.
June 28, 2006), the massive ra infall event here required Vonderharr to make quick and

10
discretionary decisions about how to best respond.1 Vonderharr had no manual or policy
to follow in this precise circumstance, and he instead relied on his experience. This is “the
type of emergency or crisis situation in which official immunity is meant to apply, so that
the city employees can discharg e their duties as they believe them to be effective and
necessary under the circumstances.” Id. at *6. Moreover, and as was the case in Nordlie,
the city is entitled to vicarious official immunity because Vonderharr’s actions “are of the
type that if immunity were denied, the failure to extend immunity would inhibit employees
in the future.” Id.
Issues of immunity are generally raised before negligence claims are resolved,
because official immunity relieves the immune actor not only from liability but also from
having to defend against the claim. Wiederholt, 581 N.W.2d at 316. Here, there was no
pretrial motion concerning official immunity. Therefore, the district court decided the
immunity issue after trial. It did not err in applying vicarious offi cial immunity as an
alternative basis for finding no liability on the part of the c ity. This determination is
sufficient as an additional basis to affirm the district court’s decision.
Finally, appellants raise as an issue the dist rict court’s denial of their motion for a
new trial. Appellants have neither briefed nor argued this issue. “An assignment of error
based on mere assertion and no t supported by any argument or authorities in appellant’s
brief is waived and will not be considered on appeal unless prejudicial error is obvious on

1 Unpublished cases are not binding authority. Minn. Stat. § 480A.08, subd. 3 (2018). We
do, however, recognize that they may have persuasive value. Dynamic Air, Inc. v. Bloch,
502 N.W.2d 796, 800 (Minn. App. 1993).

11
mere inspection.” Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135
(Minn. 1971). No such error is obvious here.
Affirmed.