Governmental Immunities: - Minnesota County Attorneys Association

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The Basics of Statutory Discretionary Immunity Statutory discretionary immunity is the best known and probably the most important of the various governmental immunities. It is also the most difficult to apply. See Nusbaum v. Blue Earth County, 422 N W 2d 713, 719 (Minn. 1988) ("Courts have consistently encountered difficulty in applying the discretionary function exception.") It is occasionally referred to, erroneously, as "governmental immunity," as if it were the only form of immunity the government possesses. Put simply, statutory discretionary immunity is the doctrine that precludes governmental liability where the conduct being challenged is a policy-making function. It is found in the Municipal Tort Claims Act at Minn. Stat. § 466.03, subd. 6, and in the State Tort Claims Act at Minn. Stat. § 3.736, subd. 3(b). It applies to "any loss caused by the performance or failure to perform discretional duty, whether or not the discretion is abused." Minn. Stat. § 3.736 subd 3(b). In determining whether a case involves a governmental function immune under the statutory discretionary immunity doctrine, the Minnesota Supreme Court has distinguished between "planning" and "operational" decisions. "Planning level decisions are those involving questions of public policy, that is, the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy." Holmquist v. State, 425 N.W.2d 230, 234 (1988). In contrast, "operational" decisions include "scientific or technical" decisions that do not involve a "balancing of policy considerations." Nusbaum v. Blue Earth County, 422 N.W.2d 713, 720-21 (1988). It has also been said that "operational" decisions "involve decisions relating to the ordinary day-to-day operations of the government." Holmquist, 425 N.W.2d at 232. Allegations of Negligence Do Not Prevent Application of Statutory Discretionary Immunity Allegations of negligence are irrelevant in considering the question of statutory discretionary immunity. The statutes absolve government entities from liability for discretionary acts "whether or not the discretion is abused." Minn. Stat. § 3.736 subd. 3(b); Minn. Stat. § 466.03, subd. 6. This is because "judicial review of major executive policies for ‘negligence’ or ‘wrongfulness’ could disrupt the balance of separation of powers of the three branches of government." Nusbaum, 422 N.W.2d at 718. As the court noted in Holmquist: the question is not whether the State's conduct resulted in a condition posing an unreasonable risk of harm; it is whether the conduct consisted of planning or policy making decisions (protected) or operational level decisions (unprotected). 425 N.W.2d at 232. Governmental Immunities Handbook Kenneth H. Bayliss Quinlivan & Hughes, P.A. © 2010 5
Economic Considerations and the Allocation of Limited Financial Resources In determining whether statutory discretionary immunity will bar a claim, attorneys and claim representatives evaluating cases must decide whether the conduct that the plaintiff complains of was the product of policy decisions made by the governmental entity. Statutory immunity is most commonly applied when the challenged act is a product of limited financial resources. For instance, in Hennes v. Patterson, 443 N.W.2d 198 (Minn. Ct. App. 1989), the State was held to be immune for its decision to plow snow off the traveled portion of a roadway and up against a guardrail, thereby creating a ramp over which a vehicle launched off a bridge. Important to the finding that statutory immunity barred the claim was that one of the reasons for the failure to remove the ramp of snow until several days after the snowfall was the limited availability of snow removal equipment. Id. at 203. Determination of how to utilize its limited allocation of snow removal equipment was held to be immune. Id. Similarly, in McEwen v. Burlington N. Ry. Co., 494 N.W.2d 313 (Minn. Ct. App. 1993), the court held that the failure to paint pavement markings on a freshly resurfaced roadway was an immune decision. Id. at 317. In McEwen, the decision not to repaint was the product of a MNDOT district policy of delaying repainting to avoid the need for a second repainting. Thus, the decision was based on financial considerations and was protected. Id. Decisions regarding the installation of traffic signals based on a prioritization system are also discretionary because they have economic implications. Wornson v. Chrysler Corp., 436 N.W.2d 472, 474-75 (Minn. Ct. App. 1989). Even when strict economic considerations are not involved, other policy considerations may support a finding of statutory discretionary immunity. For instance, decisions regarding the placement of inmates or patients, and decisions regarding how much liberty to afford them, are normally protected policy decisions immune from suit under the doctrine of statutory immunity. In Pappenhausen v. Schoen, 268 N.W.2d 565, 567 (Minn. 1978), the State was held immune from suit for a decision to grant a medical parole of a mentally ill rapist from a prison to an open state hospital, where he escaped and raped a woman. The court noted that the level of confinement or freedom accorded mental patients was "an indisputably discretionary activity, involving as it does the application of skilled judgment to a wide variety of human conditions." Id. at 572. A similar result obtained in Cairl v. State, 323 N.W.2d 20 (Minn. 1982), where the Court held the State immune for a decision to release a dangerous youth from a state institution on holiday leave where the youth then set a fire causing injuries. See also Koelln v. Nexus Residential Treatment Facility, 494 N.W.2d 914 (Minn. Ct. App. 1993) (holding county and State immune from liability for placement of psychopathic personality in residential treatment setting). In Johnson v. State, 553 N.W.2d 40 (1996), the court held that statutory immunity barred claims related to the release of an inmate who was supposed to report to a halfway house. When a governmental decision recognizes the potential for harm and consciously decides to permit that harm to exist because it believes its decision is necessary to serve a greater Governmental Immunities Handbook Kenneth H. Bayliss Quinlivan & Hughes, P.A. © 2010 6
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