Robert C. Tengdin, Trustee of the Robert C. Tengdin Revocable Trust dated May 18, 2009, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1012

Robert C. Tengdin, Trustee of the Robert C. Tengdin Revocable Trust
dated May 18, 2009,
Respondent,

vs.

City of Edina,
Appellant.

Filed March 7, 2022
Affirmed
Frisch, Judge

Hennepin County District Court
File No. 27-CV-20-2227

Tamara O’Neill Moreland, Inga K. (Schuchard) Kingland, Larkin Hoffman Daly &
Lindgren, Ltd., Minneapolis, Minnesota (for respondent)

Paul D. Reuvers, Andrew A. Wolf, Iverson Reuvers, Bloomington, Minnesota (for
appellant)

Considered and decided by Frisch, Presiding Judge; Gaïtas, Judge; and Klaphake,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
FRISCH, Judge
In this interlocutory appeal, the City of Edina argues that it is entitled to statutory
discretionary function immunity from an action commenced by a homeowner, wherein the
homeowner alleged that the city is liable for flood damage resulting from the failure to
inspect, maintain, or repair certain property. We affirm the district c ourt’s denial of
summary judgment b ecause genuine issues of material fact exist regarding the
circumstances giving rise to the immunity claim, and the fact-finder must resolve those fact
disputes to determine the applicability of statutory discretionary function immunity.
FACTS
In the early 1960s, respondent Robert C. Tengdin purchased property within the city
of Edina. That same year, Tengdin built a house on the property. A few years later, he
constructed a tennis court on the rear of the property. The tennis court is situated adjacent
to what appellant City of Edina refers to as the East Basin.
The East Basin is a naturally occurring landlocked basin located in the Nine Mile
Creek Watershed District. The East Basin does not have an outlet at or below its 100-year
flood elevation. Drainage to the East Basin is dictated by its topography, meaning that
stormwater infrastructure does not typically divert the flow of drainage across the natural
topographical divide. However, water is tr ansported to the East Basin via outlet pipes.
Currently, water naturally leaves the East Basin by evaporation and seepage into the soil;
there are no pumps or drainage pipes to remove water from the East Basin.
3
Before 2019, no study had been conducted o n the East Basin. Although the East
Basin was not officially labeled as a wetland by the Minnesota Board of Water and Soil
Resources, the city designated the area as a type-2 wetland in its Comprehensive Water
Resource Management Plan, and city officials characterized it as a wetland. While the city
routinely inspected the infrastructure connected to its stormwater system, it did not
routinely inspect or maintain the East Basin because it considered the East Basin to be a
wetland. How ever, the city has in the past inspected wetlands like the East Basin upon
request by a resident.
In 2014, the city began experiencing a significant increase in precipitation . This
increase in precipitation resulted in widespread flooding in the city. Over a two-day period
in 2014, the city received 147 flooding -service requests, experienced 42 reported sewer
backups, and closed 5 roads due to flooding. As a result, the city received more requests
to pump excessive water than it was able to manage.
Also in 2014, Tengdin first contacted the city about issues with the East Basin and
the accumulation of water on his property. Tengdin met with the mayor to discuss potential
remedies. Tengdin asserts that the mayor indicated that water could b e pumped from the
area at Tengdin’s expense because “it ’s not in our budget” and the area threatened by
flooding—Tengdin’s tennis court—was not a “permanent structure.”
By 2017, flooding from the East Basin rendered the tennis court unusable. Tengdin
again contacted the mayor about the flooding . In response, the mayor directed city
engineering director Chad Milner, public works director Brian Olson, and city manager
Scott Neal to investigate the issue. Olson dispatched city staff to inspect the infrastructure
4
of the East Basin for problems. The inspection revealed no malfunctions or other blockages
that could explain the increase in flooding.
The city e ngineering services manager Ross Bintner also inspected the area. He
concluded that there were no issues with the drainage into the East Basin and that the excess
water could be explained by the increase in seasonal precipitation. One month later ,
Bintner re-examined the area and noted that the water level had risen to “an all-time high,”
but he found no evidence of leaky pipes or unexplained flows. He concluded that “the rise
in water elevation seems like a natural result of a very wet period.” Nevertheless, Bintner
applied for and received a Minnesota Department of Natural Resources (DNR) permit to
pump water from the East Basin. Bintner later informed Tengdin that the city had a policy
of not providing water-level management for circumstances not involving a risk of flooding
to a structure. The city did not act on the permit, and water was not pumped from the East
Basin.
In 2019, residents petitioned the city to address problems associated with the
flooding of the East Basin. The city approved a st udy to investigate. The investigative
report concluded that no affirmative act by the city had affected the water levels of the East
Basin. The report also recommended potential remedies to address the flooding, one of
which was to pump water out of the East Basin. In February 2021, the city declined to
adopt the recommendation to pump water from the East Basin. Simultaneous with that
decision, the city council formally adopted a resolution that the city would only employ
pumping as a remedy when a habitable structure is threatened by flooding.
5
Tengdin sued the city, alleging damages to his property resulting from the city’s
failure to inspect, repair, or maintain the East Basin. The city filed a motion for summary
judgment, asserting that it was not liable as a matter of law because it enjoyed statutory
discretionary function immunity for its planning-level decision not to pump water from the
East Basin. The district court denied the city’s motion, reasoning that a genuine dispute of
material fact exist ed as to whether the city’s decision to not pump water from the East
Basin was an operational or planning-level decision. The city appeals.
DECISION
The city argues that the district court erred by denying its motion for summary
judgment because it is entitled to statutory discretionary function immunity as a matter of
law. Tengdin responds that the district court did not err and that the city is not entitled to
immunity.1
Summary-Judgment Standard
“[D]enial of a motion for summary judgment is not ordinarily appealable, [but] an
exception to this rule exists when the denial of summary judgment is based on rejection of
a statutory or official immunity defense.” Anderson v. Anoka Hennepin Indep. Sch.
Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004). “In an appeal from summary judgment, we
must determine whether there are genuine issues of material fact and whether the district

1 The only question presented in this appeal is whether the city is entitled to statutory
discretionary function immunity as a matter of law. Although referenced in passing in the
parties’ briefs, any issues related to the existence or scope of the city’s duties, the cause of
Tengdin’s damages, or any other issues are not before us in this appeal.
6
court erred in applying the law.” Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462
(Minn. 2014).
A district court must grant a motion for summary judgment “if the movant shows
that there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law.” Minn. R. Civ. P. 56.01. A genuine issue of mat erial fact exists if a
rational trier of fact, considering the record as a whole, could find for the nonmoving party.
Frieler v. Carlson Mktg. Grp., Inc. , 751 N.W.2d 558, 564 (Minn. 2008). We apply a
de novo standard of review to the district court ’s legal conclusions on summary judgment
and view the evidence in the light most favorable to the nonmoving party. Commerce Bank
v. W. Bend Mut. Ins. Co., 870 N.W.2d 770, 773 (Minn. 2015).
“When reviewing a denial of summary judgment based on a claim of immunity, we
assume the facts alleged by the nonmoving party are true.” Shariss v. City of Bloomington,
852 N.W.2d 278, 281 (Minn. App. 2014). We review de novo whether immunity applies
to the governmental entity. Id. The party asserting immunity bears the burden of proving
entitlement to that immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).
Statutory Discretionary Function Immunity
A municipality is immune from liability 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 (2020). This immunity
limits the disrupt ion of the “balanced separation of powers of the three branches of
government.” Nusbaum v. Blue Earth County , 422 N.W.2d 713, 7 18 (Minn. 1988)
(quotation omitted). In determining the applicability of statutory discretionary function
7
immunity, we focus on “whether the conduct at issue involves the balancing of public
policy considerations in the formulation of policy.” Conlin v. City of Saint Paul , 605
N.W.2d 396, 400 (Minn. 2000). A municipality is immune from liability for its “planning”
decisions but not for its “operational” decisions. Steinke v. City of Andover , 525 N.W.2d
173, 175 (Minn. 1994). A planning -level decision is one that involves issues of public
policy and the weighing of competing social, economic, or political factors , as opposed to
“professional or scientific judgments.” Id. An operational decision is one that is connected
to the day-to-day operation of government. Id.
“A two-step analysis guides us in determining whether a municipality is entitled to
statutory immunity.” Magnolia 8 Props ., LLC v. City of Maple Plain , 893 N.W.2d 658,
662 (Minn. App. 2017). “First, we must identify the challenged governmental conduct.
Next, we determine whether the challenged conduct involves planning-level or operational
decisions.” Id. (citation omitted).
The Challenged Conduct
“The first step in an analysis of a statutory immunity claim is to identify the conduct
at issue.” Conlin, 605 N.W.2d at 400. To ascertain the conduct at issue, we look to the
allegations set forth in the complaint. See Gleason v. Metro. Council Transit Operations ,
582 N.W.2d 216, 219 (Minn. 1998). We conduct a thorough review of the record to verify
that the conduct alleged in the complaint matches the government conduct present in the
record. See Magnolia, 893 N.W.2d at 663.
We first observe that the parties dispute what constitutes the challenged conduct at
issue. In his complaint, Tengdin alleges that since 2014 , the city failed to “inspect,
8
maintain, and repair” its stormwater drainage system in the East Basin. The city
characterizes this challenged conduct as the decision not to pump water from the East
Basin. Tengdin disagrees, asserting that the failure to inspect, maintain, or repair is
separate conduct from the city’s pumping decision . The district court did not clearly
identify the challenged conduct and instead broadly characterized the city’s actions as
“wetland management.” But the district court denied the city’s motion for summary
judgment based on deposition testimony suggesting that “the decision not to pump the East
Basin was an operational, ministerial decision.”
Our review of Tengdin’s complaint shows that he challenges two of the city’s acts
or omissions: the failure to pump water from the East Basin after it began flooding in 2014
and the ongoing failure to inspect or maintain the East Basin so as to prevent the flooding
from occurring at all.
As to the former conduct, a lthough Tengdin’s complaint does not specifically
reference the city’s failure to pump water from the East Basin , Tengdin has made clear
both in his submissions and at oral argument that he challenges the city’s decision not to
pump water from the East Basin after flooding began. The record shows, for example, that
Tengdin repeatedly requested that the city pump water out of the East Basin, including in
his 2014 discussions with the mayor , his 2017 conversations with Bintner, and the 2019
petition that Tengdin and other residents sent to the city. At oral argument, Tengdin
conceded that the only method to remove water from the East Basin was through pumping.
Accordingly, we construe Tengdin’s allegation that the city did not “repair” the East Basin
as a challenge to the city’s decision not to pump water from the East Basin.
9
As to the latter condu ct, Tengdin challenges the city’s ongoing decision not to
maintain or inspect the East Basin. The city argues that the decision to not pump water
from the East Basin is the only challenged conduct at issue and that any conduct related to
inspection or mai ntenance is intrinsically tied to this decision. We disagree. Inspection
and maintenance activities to prevent the accumulation of excessive water in the East Basin
are independent and distinct from activities related to the removal of water once it has
already accumulated in the East Basin.
The Governmental Conduct in Question
Having defined the challenged conduct at issue, we next “examine the precise
governmental conduct in question.” Steinke, 525 N.W.2d at 175. Decisions related to the
day-to-day operations of government personnel are not afforded immunity. Jepsen as Tr.
for Dean v. County of Pope , 966 N.W.2d 472, 489 (Minn. 2021). But a challenge to the
actions of a city employee pursuant to an enacted policy is merely a challenge to the policy
itself so long as the record indicates that the employee considered the policy when
committing the challenged actions. See Nusbaum, 422 N.W.2d at 723-24 (determining that
county employee’s exercise of professional judgment to place road sign was operational in
nature notwithstanding existence of road-sign-placement policy because no evidence
indicated city employee was influenced by policy when placing sign). We conclude that
genuine issues of material fact exist as to whether the c hallenged conduct is entitled to
statutory discretionary function immunity.
First, the record contains conflicting evidence as to whether the city adopted a policy
before 2021 that governed the decision not to pump water from the East Basin. The city
10
alleges that in 2014, it adopted an unwritten policy to only respond to pumping requests
when floodwater threatened a habitable structure. But the city engineering director testified
that the policy was enacted “somewhere between 2014 and ’17.” Moreover, despite
working for the city in 2014 when th is policy was allegedly implemented, Bintner sought
and obtained a permit from the DNR in 2017 to pump water from the East Basin. The city
presented evidence that it never acted on this permit because of the purported 2014 policy.
And in 2021, the city council formally adopted a resolution identical to the purported 2014
pumping policy.
Tengdin alleges that these facts provide a basis for a rational fact-finder to infer that
no policy existed before 2021. We agree. A fact-finder could conclude that Bintner’s lack
of knowledge of the existence of a policy, despite his role as engineering services manager,
and his acquisition of a pumping permit in 2017, shows that no policy existed at all. 2 A
fact-finder could conclude that the city engineering director’s vague testimony that the
unwritten policy was developed at some point in a three -year range further indicates that
such a pumping policy was not a n established municipal policy. And a fact-finder could
conclude that the city council’s 2021 adoption of an identical pumping policy would not
have been necessary if the city had already adopted such a policy.3 Statutory discretionary

2 We note that oral policies may form a basis for statutory discretionary function immunity.
See Olmanson v. Le Sueur County, 673 N.W.2d 506, 515 (Minn. App. 2004) (“[T]he county
need not necessarily adopt a written policy, but there must be evidence that there was a
deliberative process that led to establishment of the policy in question.”), aff’d on other
grounds, 693 N.W.2d 876 (Minn. 2005).

3 Tengdin argues th at only a legislative body, such as a city council, can enact policies
sufficient to serve as a basis for statutory discretionary function immunity . In support of
11
function immunity cannot apply in the absence of conclusive evidence of the existence of
a policy in the first instance. See Nusbaum, 422 N.W.2d at 723. Accordingly, the city is
not entitled to summary judgment based on statutory discretionary function immunity for
its decision not to pump water from the East Basin.4
Second, the record contains conflicting evidence regarding decisions related to the
city’s maintenance and inspection of the East Basin, precluding the application of statutory
discretionary function immunity as a matter of law. As to this challenged conduct, Tengdin
argues that the decision not to maintain or inspect the East Basin was not a planning -level
decision but instead an operational decision not subject to immunity. We agree that the
record contains conflicting evidence regarding the basis for the city’s decision not to
maintain or inspect the East Basin.

this argument, Tengdin miscites two cases , both of which expressly provide that
executive-level policy decisions are afforded immunity if based on policymaking. Watson
by Hanson v. Metro. Transit Comm’n , 553 N.W.2d 406, 412 (Minn. 1996) (“Statutory
immunity exists to prevent the courts from conducting an after -the-fact review which
second-guesses certain policy-making activities that are legislative or executive in nature.”
(emphasis added) (quotation omitted)); Pletan v. Gaines, 460 N.W.2d 74, 76 (Minn. App.
1990) (“The discretionary function exception avoids judicial interference and second
guessing of executive and legislative policymaking.” (emphasis added) (quotation
omitted)), rev. denied (Minn. Nov. 1, 1990).

4 Tengdin also argues that, even if the 2014 policy existed, the policy was not adopted as
a result of the political, social, or economic considerations that are a necessary predicate to
the application of immunity. But the city presented evidence that it adopted the policy as
a means of prioritizing citizen requests and managing its limited budget. We consider
Tengdin’s arguments regarding the credibility of the underlying reasons for enacting the
policy as part of his challenge to the existence of the p olicy in the first instance . All of
these issues are appropriate for resolution by the fact-finder.
12
During his deposition, city engineering director Chad Milner testified as to the city’s
day-to-day activities regarding the East Basin. Milner admitted that he did not inspect or
maintain the East Basin before 2019, and he only did so after Tengdin complained about
flooding onto his property. Milner testified that the city does not inspect or repair wetlands
like the East Basin because the city intended to leave such wetlands in a “natural state.”
Milner further testified that, based on his professional judgment, wetlands are not in need
of maintenance. When asked to identify the basis for this conclusion, Milner testified that
“We don’t maintain wetlands. That would be a call between myself and the public works
director.” He then stated, “We set priorities based on needs within the City. Our opinion
is wetlands don’t need maintenance, based on all the other needs and service requests in
the City.” Finally, Milner concluded, “It’s an operational decision by us.”
In support of the city’s motion for summary judgment, Milner submitted a
declaration that differed from his deposition testimony. In the declaration, Milner stated
that the decision to not maintain wetlands was based on a “City policy to discourage
wetland alterations.” Milner further stated that , in making operational decisions, he
balanced a variety of social, political, and economic factors , as opposed to exercis ing his
professional judgment.
These competing statements by Milner relate to whether his actions, or inactions,
were based on an enacted policy grounded in political, social, or economic considerations.
The city is only entitled to statutory discretionary function immunity if its employees’
actions were based on an enacted policy. See Nusbaum, 422 N.W.2d at 723-24. We cannot
resolve t he competing statements from Milner as to the motivation for his actions .
13
Jonathan v. Kvaal, 403 N.W.2d 256, 259 (Minn. App. 1987) (stating that appellate courts
do not resolve issues of fact), rev. denied (Minn. May 20, 1987). Accordingly, the city is
not entitled to summary judgment based on statutory discretionary function immunity for
its decisions related to maintenance and inspection of the East Basin.
The district court denied the city’s motion for summary judgment based on
deposition testimony suggesting that “the decision not to pump the East Basin was an
operational, ministerial decision.” Although we agree that summary judgment is
inappropriate here, our conclusion is based on different grounds than the district court. We
hold that summary judgment is inappropriate because there are genuine disputes of material
fact as to the existence of applicable policies and whether city employees made decisions
in reliance on such policies.
Abrogation of Statutory Duty
Tengdin argues that the city is not entitled to statutory immunity as a matter of law
because it may not abrogate a statutory duty to inspect and maintain its drainage system.
“[M]unicipalities do not have discretion to engage in policymaking conduct that is patently
unlawful.” Blaine v. City of Sartell , 865 N.W.2d 723, 731 -32 (Minn. App. 2015)
(determining that statutory discretionary function immunity did not apply where county’s
inspection process violated its duty to provide for regular inspections). Where a
government entity’s detailed statutory scheme resolves the high-level planning and policy
decisions, the entity is not afforded discretionary immunity when it s employees carry out
operations of the scheme . Jepsen, 966 N.W.2d at 4 89-90 (declining to grant statutory
14
immunity to county when county workers’ failure to protect child concerned day-to-day
operational duties).
Tengdin argues that even if the city adopted a policy not to maintain or inspect the
East Basin because it is a w etland, such a decision violates the city’s statutory duty to
maintain its drainage system. Minnesota law provides that “[a]fter the construction of a
drainage system has been completed, the drainage authority shall maintain the drainage
system that is located in its jurisdiction . . . and provide the repairs necessary to make the
drainage system efficient. The drainage authority shall have the drainage system inspected
on a regular basis.” Minn. Stat. § 103E.705, subd. 1 (2020). The statute further provides
that “[o]pen drainage ditches shall be inspected at a minimum of every five years.” Id.
Chapter 103E defines “drainage authority” as “the board or joint county drainage authority
having jurisdiction over a drainage system or project.” Minn. Stat. § 103E.005, subd. 9
(2020). “Drainage system” is defined as
a system of ditch or tile, or both, to drain property, including
laterals, improvements, and improvements of outlets,
established and constructed by a drainage authority. Drainage
system includes the improvement of a natural waterway used
in the construction of a drainage system and any part of a flood
control plan proposed by the United States or its agencies in
the drainage system.

Id., subd. 12 (2020). The city argues that it is not a drainage authority as defined by chapter
103E, nor is the East Basin part of a constructed drainage system because it is a naturally
occurring wetland. We agree.
We review the construction of the drainage cod e de novo. County of Blue Earth v.
Phillips (In re Improvement of Cnty. Ditch. No. 86, Branch 1), 625 N.W.2d 813, 817 (Minn.
15
2001). “Minnesota’s laws pertaining to drainage ditches are a complex matrix adopted
with the intent of reclaiming agricultural land by disposing of excess water that renders the
land untillable.” In re Improvement of Murray Cnty . Ditch No. 34 , 615 N.W.2d 40, 4 5
(Minn. 2000). “The mere providing of ingress into, and egress from, a natural waterway
does not constitute an improvement of the natural waterway.” Swoboda v. County of
Renville (In re Brandt), 62 N.W.2d 816, 819 (Minn. 1954) (interpreting an earlier iteration
of the drainage-system statute substantially similar to the current version).
Here, the undisputed facts show that the East Basin is part of the city’s stormwater
system via its designation as a wetland and because it receives outlet water . But the
undisputed facts also show that the East Basin does not act as a conveyance of that water.
Moreover, the East Basin was not “constructed by a drainage authority,” as it is undisputed
that the East Basin is a natural wetland. See Minn. Stat. § 103E.005, subd. 12. And even
if the East Basin could be considered a natural waterway, the city’s stormwater system only
provides “ingress into” it , which would not constitute an improvement under the statute.
See Swoboda, 62 N.W.2d at 819; Minn. Stat. § 103E.005, subd. 12. Lastly, no facts in the
record indicate that the city is a “ board or joint county drainage authority having
jurisdiction over a drainage system or project.” Minn. Stat. § 103E.005, subd. 12. Thus,
we reject Tengdin’s attempt to apply Minn. Stat. § 103E.705, subd. 1, to the East Basin.5

5 Although Tengdin cites to cases in support of his argument that there can be no
discretionary immunity where a municipality violates a legal duty , all of the cited cases
relate to the maintenance of safe roadways and streets for which statutory discretionary
function immunity is not available. See Johnson v. Nicollet County, 387 N.W.2d 209, 211
(Minn. App. 1986) (“In actions alleging that a governmental body failed to safely maintain
roads and sidewalks, case law consistently holds that the discretionary exception does not
16
The existence of genuine issues of material fact preclude s the application of
statutory discretionary function immunity as a matter of law to the city’s decision s not to
pump water from the East Basin and not to inspect or maintain the East Basin. However,
the city is not precluded from pursuing its immunity claim at trial.
Affirmed.

apply.”); Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316-17 (Minn. 1998) (failure
to repair sidewalk); Hansen v. City of S aint Paul, 214 N.W.2d 346, 350 -51 (Minn. 1974)
(failure to prevent dangerous dogs from roaming city streets). Tengdin also does not cite
any caselaw applying the drainage inspection and repair statute to a wetland serving as a
stormwater depository. We note that the purpose of the drainage statute was to “reclaim[]
agricultural land” and drain water, not regulate the conveyance of water into a wetland.
Murray Cnty. Ditch No. 34, 615 N.W.2d at 44.

Additionally, Tengdin cites to inapposite cases relating to city water management
and associated liability. Tengdin cites to two water-management cases that do not involve
the application of statutory discretionary function immunity. See Pettinger v. Village of
Winnebago, 58 N.W.2d 325, 329 (Minn. 1953); Greenwood v. Evergreen Mines Co. , 19
N.W.2d 726, 731 (Minn. 1945). Tengdin also cites to Chabot v. City of Sauk Rapids, where
the supreme court held that a city did enjoy statutory discretionary function immunity,
despite also determining that the city waived its immunity by purchasing liability
insurance. 422 N.W.2d 708 , 711 (Minn. 1988). Moreover, the Chabot court expressly
stated that “a city is not liable for water damage to private property, despite the inadequacy
of its drainage system, when the private property was the natural depository of the water
discharged.” Id.