Sharon Falknor, Appellant,

This opinion is nonprecedential except as provided by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
A23-0430

Sharon Falknor,
Appellant,

vs.

City of Minneapolis,
Respondent.

Filed December 11, 2023
Affirmed
Schmidt, Judge

Hennepin County District Court
File No. 27-CV-22-11593

Steve Anderson, Anderson Law Group, PLLC, St. Paul, Minnesota (for appellant)

Kristyn Anderson, Minneapolis City Attorney, Gregory P. Sautter, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Schmidt, Judge; and
Hooten, Judge.∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SCHMIDT, Judge
Appellant challenges the summary-judgment dismissal of her nuisance claim
against respondent- city, arguing that the district court erred by determining vicarious
official immunity barred her claim. We affirm.
FACTS1
For over a decade, appellant Sharon Falknor owned a rental property next door to
Walter Bratton in Minneapolis. Bratton’s property consistently failed to comply with the
Minneapolis Municipal Code, leading respondent City of Minneapolis (the city) to issue
over 200 code violations against Bratton, with 60 violations being assessed while Bratton
and Falknor were neighbors.
The conduct surrounding Bratton’s property escalated into illegal activity. In 2020,
the criminal conduct caused Falknor’s tenants to endure property destruction, threats of
arson, and multiple shooting incidents. In response to the increasingly violent criminal
activity, the residents vacated Falknor’s property and terminated th eir lease agreements.
The following year, the city’s Department of Regulatory Services (DRS) initiated the
process of revoking Bratton’s rental license. The city council officially revoked Bratton’s
rental license in March 2022, and Bratton sold his property in May 2022.

1 Consistent with our review of an order granting summary judgment, our recitation of the
facts includes only undisputed facts that we view in the light most favorable to Falknor as
the nonmoving party. Kenneh v. Homeward Bound, Inc., 944 N.W.2d 222, 228
(Minn. 2020).
3
After Bratton sold his property, Falknor sued the city for nuisance, under Minn.
Stat. § 561.01 (2022), alleging that the city’s delay in revoking Bratton’s rental license
caused her emotional, health, and property damages. The city filed a motion to dismiss on
the pleadings under Minn. R. Civ. P. 12.03. After taking judicial notice of certain public
records, the district court converted the city’s motion to dismiss to a motion for summary
judgment. The district court granted the city summary judgment, determining that the city
was entitled to vicarious official immunity on Falknor’s nuisance claim. This appeal
follows.
DECISION
Appellate courts review a district court’s grant of summary judgment de novo to
determine if there are genuine issues of material fact and whether the district court
misapplied the law. Kenneh, 944 N.W.2d at 228. We view the evidence in the light most
favorable to the nonmoving party. Id.
The district court did not err by granting the city summary judgment based
on vicarious official immunity.

Falknor asserts that the district court erred by determining that the DRS director’s
enforcement actions concerning Bratton’s property were protected by official immunity,
thereby entitling the city to vicarious official immunity as the director’s employer. Falknor
contends that, given Bratton’s numerous code violations, the city should have removed
Bratton or revoked his rental license much earlier. We are not persuaded.
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A. The district court properly determined that the DRS director is entitled
to official immunity on Falknor’s nuisance claim.

The official immunity doctrine is premised on allowing public employees to take
independent action without the fear of personal liability for those actions .
Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004).
Official immunity is a complete defense to state law tort claims. Mumm v. Mornson,
708 N.W.2d 475, 490 (Minn. 2006). Whether the DRS director is a public official whose
conduct qualifies for official immunity is a legal question that we review de novo. Vassallo
ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014).
The official immunity doctrine protects public officials from personal liability in
performing discretionary duties. Kariniemi v. City of Rockford, 882 N.W.2d 593, 599–600
(Minn. 2016). Minnesota courts evaluate official immunity claims under a three-part test,
analyzing: (1) the conduct at issue; (2) whether the conduct is discretionary or ministerial;
and (3) if discretionary, whether the conduct was willful or malicious. Majeski ,
842 N.W.2d at 462. An official’s duties are considered “discretionary” if the duty involves
the official exercising their individual professional judgment to serve the goals of their
government employer. Janklow v. Minn. Bd. of Exam’rs for Nursing Home Adm’rs,
552 N.W.2d 711, 716 (Minn. 1996). Conversely, “ministerial ” duties are “absolute,
certain, and imperative” and compel public officials to take certain actions under a given
set of circumstances. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 –16
(Minn. 1998).
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Falknor alleges the DRS director failed to take more prompt and severe disciplinary
action against Bratton. Falknor contends that Bratton’s long history of code violations
conferred a ministerial duty on the DRS director to revoke Bratton’s rental license before
2022. We disagree.
The plain language of the city’s municipal code establishes only the DRS director’s
investigative duties are ministerial, while the director’s enforcement powers are
discretionary. The municipal code states that the DRS director “shall make inspections”
to determine the condi tions of rental units and “shall” give property owners notice of
infractions discovered upon inspection. See Minneapolis, Minn., Code of Ordinances
(MCO) §§ 244.130 (2013), .150 (2019). In contrast, the DRS director “may seek
enforcement . . . by any appropriate form of civil action and may seek enjoinment of any
continued violation thereof and seek to compel obedience.” MCO § 244.80 (2013)
(emphasis added). Furthermore, the municipal code provisions outlining the process to
revoke a rental l icense are only invoked after “the [DRS director] determines” that the
rental unit fails to meet the city’s licensing standards. MCO §§ 244.1930 (2013), .1940
(2011).
The municipal code’s use of the word “shall” when addressing the DRS director’s
investigative duties signifies that the director’s investigative functions are mandatory,
while the code’s repeated use of the word “may” when describing the director’s
enforcement powers indicates that the director’s choice to exercise those powers is
discretionary. See City of Circle Pines v. County of Anoka, 977 N.W.2d 816, 823
(Minn. 2022) (explaining the impact of the words “shall” and “may” in statutory
6
interpretation). Additionally, a rental-license revocation must be preceded by the DRS
director’s “determination” that a property does not meet the city’s licensing standards,
implying that the director must independently evaluate the circumstances in each case to
determine if revocation is appropriate. See, e.g., Papenhausen v. Schoen, 268 N.W.2d 565,
572 (Minn. 1978) (holding medical chief’s evaluations based on his personal examination
of circumstances was an “indisputably discretionary activity”).
Falknor’s nuisance action challenges the DRS director’s conduct by alleging that
the director improperly delayed exercising their enforcement powers. Because exercising
enforcement powers is a discretionary duty, and because Falknor does not allege that the
director engaged in any willful or malicious conduct, the DRS director is entitled to official
immunity from Falknor’s suit.
B. The district court properly determined that the city is entitled to
vicarious official immunity.

Although Falknor failed to name the DRS director in her nuisance suit, she makes
no argument that the city should be held liable if the DRS director is entitled to official
immunity. Indeed, the city is entitled to immunity under the vicarious official immunity
doctrine. Wiederholt, 581 N.W.2d at 317 (noting that to deny a government employer
vicarious immunity because the official was not named in the suit would allow plaintiffs
to defeat immunity by declining to name the official as a defendant). Vicarious immunity
is generally afforded to government employers if the employee is entitled to official
immunity. Sletten v. Ramsey County, 675 N.W.2d 291, 300–01 (Minn. 2004).
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There is no reason to break from the principle that entitles a governmental entity to
vicarious immunity when their employee receives official immunity. The city’s municipal
code provides a structured policy framework defining the scope of the DRS director’s
duties. Moreover, to expose the city to liability for the DRS director’s enforcement
decisions would inhibit the director’s performance, especially given the substantial number
of rental properties in the city and the volume of cases handled by the director. Because
the DRS director is entitled to official immunity in exercising their discretionary
enforcement powers, and because the circumstances here support extending the director’s
immunity to the city, the district court did not err by awarding the city summary judgment
based on vicarious official immunity.
Affirmed.