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What is “governmental immunity” and when does it apply? A Minnesota state law provides that a municipality can be held liable for the negligence of its officers, agents, and employees, subject to specified dollar limits.3 In a few limited circumstances, governmental entities (cities, townships, counties, etc.) are “immune” from negligence claims. Immunity is based on the separation of powers and is intended to prevent judges from second-guessing executive and legislative policy-making decisions. The trial judge decides if the governmental entity is entitled to immunity. In analyzing the claim for immunity, the trial judge identifies the type of governmental conduct that is being challenged. 4 Only conduct of a policy-making (also called “discretionary”) nature is entitled to immunity. “Policy-making” involves the balancing of social, political, safety, legal, or economic considerations.5 Conduct that implements policy – rather than makes policy – is not entitled to immunity; conduct at the planning level is protected, while conduct at the operational level is not protected.6 A city’s policy to trim trees along high-traffic roads before trimming trees on low-traffic roads is an example of an action that gives the city immunity. In determining where or how to trim trees along roadways, the city has to make choices based on its budget and the number of workers it has. This type of decision- making involves using discretion and setting policy. By contrast, the city would not be entitled to immunity if the workers it assigned to trim the trees did a negligent job that caused injury. Day-to-day operations or “ministerial actions” are not protected by governmental immunity,7 and tree-trimming itself does not involve policy-making or using discretion. Basically, the court does not want to second-guess how city policy-makers prioritize resources, but the court will get involved if a government worker carries out day-to-day work in a negligent way. In a 1998 court case in Minnesota, a large oak tree fell on a motorist during a severe thunderstorm. The fallen tree showed signs of decay. The city tree inspector had inspected the tree a few months earlier. The court found that the inspector failed to notice obvious signs of internal decay through a pruning wound that had a visible opening into a tree cavity. The city was held liable for the injury to the motorist.8 Because the tree inspector’s job required him to inspect trees regularly in his day-to-day routine and his decision required no planning or policy formulation, government immunity did not shield the city from liability. What constitutes an “act of God”? An act of God is a force of nature that is both the sole cause of damage and unexpected or unforeseeable. For example, a tree downed by lightning is an act of God, if lightning is the sole cause of the tree’s falling and if the tree did not already have an obvious defect.9 The tree owner is not responsible if the tree’s failure is solely caused by act of God. However, if the tree had an obvious defect before the tree fell during a windstorm, then the “act of God” defense would not shield the tree owner from responsibility. Many tree failures are the result of a combination of factors, both mortal and divine. What is the duty of care with respect to trees that block intersections? 3 Minn. Stat. §466.02 and §466.04 (1996) in the Minnesota Tort Claims Act 4 Angell v. Hennepin County Reg’l Rail Auth., 578 N.W.2d 343, 346-47 (Minn. 1998). 5 Nusbaum v. Blue Earth County, 422 N.W.2d 38, 43-44 (Minn. App. 1992). 6 McEwen v. Burlington N. R.R. Co., 494 N.W.2d 313, 316-17, (Minn. App. 1993), review denied (Minn. Feb. 25, 1993). 7 There is a three-prong test for determining immunity: 1) Government policy controls the conduct of the employee; 2) The government exercised its discretion in adopting the policy; and 3) The employee is not negligent in carrying out the policy. 8 Elfstrand v. City of Brooklyn Center, unpublished opinion, C1-98-1029 (Minn. App. 1998) 9 VandenBroucke v. Lyon County, 301 Minn. 300, 222 N.W.2d 792 (1974). [Hazard Trees and Limbs on Public Property and Governmental Immunity]