Opinion
No. C3-96-914.
Filed October 15, 1996.
Appeal from the District Court, Hennepin County, File No. C5-3067.
John M. Harens, James E. Blaney, (for Appellants)
George C. Hoff, Paula A. Callies, (for Respondent City of Maple Grove)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994)
Unpublished Opinion
Appellants Frank Richardson and ArchDesign, Ltd. challenge the grant of partial summary judgment to respondent City of Maple Grove based on statutory immunity pursuant to Minn. Stat. § 466.03, subd. 4 (1994). We affirm.
Facts
Universal Circuits, Inc. (Universal) constructed a manufacturing facility in the City of Maple Grove (city). Appellants ArchDesign, Ltd. and Frank Richardson designed the facility. In 1992, the facility was damaged by a fire. During its subsequent fire investigation, the city noted design defects. The city then required that structural modifications be made to bring the building into compliance with applicable building codes.
Universal, among others, then sued appellants claiming negligent design of the facility. Appellants filed a third party complaint against the city for indemnity and contribution based on the city's issuance of a building permit and certificate of occupancy for the facility. Appellants alleged that the city actively participated in revising the building design to meet the city's interpretation of the 1982 Minnesota Building Code. The city moved for summary judgment, claiming that statutory immunity bars liability for damages allegedly resulting from the actions of its building inspector. The district court granted partial summary judgment for the city, finding that appellants failed to establish genuine issues of material fact that the city had acted outside its allowed discretion in the decision-making process.
Following the lead of the supreme court, we will use the term "statutory immunity" to describe immunity pursuant to Minn. Stat. § 466.03, subd. 6 (1994), that previously has been variously referred to as statutory discretionary function immunity, discretionary function immunity, statutory discretionary immunity, or discretionary immunity. See Johnson v. State, ___ N.W.2d ___, ___ n. 1 (Minn. Aug. 29, 1996); Watson v. Metropolitan Transit Comm'n, ___ N.W.2d ___, ___ n. 1 (Minn. Aug. 29, 1996).
Decision
Whether statutory immunity applies on established facts is a question of law for an appellate court to review without deference to the district court. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989). This court is not bound by the district court's decision on purely legal questions, but must review such questions de novo. Frost-Benco Elec. Ass'n. v. Minnesota Pub. Utils. Comm'n., 358 N.W.2d 639, 642 (Minn. 1984).
On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district court] erred in [its] application of the law.
State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
1. Burden of Proof
Appellants claim that the district court impermissibly shifted the burden of proof to appellants in considering the city's motion for summary judgment. The city bears the initial burden to demonstrate "that it is immune under the discretionary function exception." Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 n. 6 (Minn. 1988). The party opposing summary judgment has a burden to "demonstrate at the time the motion is made that specific facts are in existence which create a genuine issue for trial." Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986) (party must provide specific evidence showing that material fact issues remain for trial). The issue on appeal is whether appellants have demonstrated any specific facts that create an issue for trial. The fact that the district court may have shifted the burden of proof on this matter is harmless in this context and not grounds for reversal.
2. Statutory Immunity
The city moved for summary judgment based on statutory immunity. Municipalities are immune from "[a]ny claim based upon the performance or failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Minn. Stat. ___.03, subd. 6. Minnesota courts have consistently held that, because the issuance of building permits and certificates of occupancy and the interpretation of building codes are discretionary acts, municipalities are immune from tort liability for those acts. Anderson v. City of Minneapolis, 287 Minn. 287, 289, 178 N.W.2d 215, 217 (1970) (issuance of building permits protected by statutory immunity); Masonick v. J.P. Homes, Inc., 494 N.W.2d 910, 913 (Minn.App. 1993) (issuance of occupancy certificates is protected discretionary function).
In Snyder, the supreme court reaffirmed the general rule that the issuance of a building permit is a protected discretionary function. The supreme court stated that the primary consideration in determining whether statutory immunity applies is whether the legislature intended to immunize the particular governmental function that gave rise to the tort action. Snyder, 441 N.W.2d at 787 (citing Nusbaum, 422 N.W.2d at 719). The supreme court noted that
more than eighteen years have passed since our decision in Anderson, ample time for the legislature to have corrected any misapprehension this court may have entertained in Anderson regarding legislative intent to protect municipalities from liability in the issuance of building permits. Accordingly, we have no occasion to question the continuing viability of Anderson.
Id.
Nevertheless, appellants argue that, although the issuance of building and occupancy permits is a discretionary function, here the city did more than that. Appellants contend that the City Inspector, LeRoy Paulson, who reviewed the building permit applications, exceeded the city's discretionary role.
First, appellants argue that Paulson identified the structure corridors as a code problem and indicated that they must be brought into compliance with the Uniform Building Code. We conclude that these actions merely demonstrate that the city required appellants to comply with the code and pointed out deficiencies in the building plans.
Second, appellants contend that when Paulson told the construction site supervisor that the "corridor ceilings had to comply with fire ratings in the code," the city thereby specified the manner of construction. But even if Paulson specified the type of corridor ceilings to be constructed and was incorrect in his code interpretation, the city is protected from liability by statutory immunity. In Anderson, the supreme court noted that even if the proposed use of the land had been so clearly illegal as to eliminate any city discretion, the city would still be immune from liability. Anderson, 287 Minn. at 289, 178 N.W.2d at 217.
Furthermore, the court noted that the permit recipient
and those who act for him are charged with the knowledge of the laws regulating the granting of the permit and any expense incurred is at the owner's risk, at least in so far as the city is concerned.
Id. If a city is immune from liability even if one of its officials issues an illegal permit, the city cannot be held liable here for the lesser claim of allegedly misconstruing the building code. Appellants have an independent duty to know the code as it relates to their construction project.
Moreover, the evidence does not permit an inference that the city assumed a direct duty toward appellants, such as was found in Gilbert v. Billman Constr., Inc., 371 N.W.2d 542, 546-47 (Minn. 1985). In Gilbert, the supreme court concluded that the district court properly submitted a negligence issue to the jury where the evidence demonstrated that the county assumed a direct duty to the plaintiffs because the county sanitarian had designed the approved plans. The sanitarian
himself drew a sketch * * * of the septic tank, * * *. He included this sketch with a permit he sent to [plaintiff], expressly approving "construction of this system in accordance with these approved plans.["]
Id. Appellants point to no similar evidence tending to establish that the city assumed a direct duty to them. There is no evidence indicating that the city actually designed the corridors. The city simply required that the building plans comply with its interpretation of the building codes. Appellant's emphasis on Gilbert is misplaced for other reasons. Gilbert involved the "public duty" doctrine, not statutory immunity, as here. There, the city selected for approval only one of a number of possible septic system designs; here, there were essentially but two possible corridor designs.
Finally, appellants argue that the city is immune from liability only for the actual issuance of permit documents, but the city is not immune from an action for incorrect code interpretation. This argument is inconsistent with the supreme court's decision in Anderson, which recognized that the approval of building permits involves
an exercise of discretion in the sense that the city's employee had to make a judgment as to whether plans submitted in support of the application for the permit constituted a permissible use of the property in the area involved.
Anderson, 287 Minn. at 288, 178 N.W.2d at 217. If a city is protected by discretionary immunity in determining whether a plan complies with the building code, a city's code interpretations necessarily are protected. Moreover, a city cannot be held liable merely because its officials fulfill their duty to discuss and identify building code violations with permit applicants. Here, the city's interpretation of the code and determination of whether the proposed plan complied with the code is the very type of conduct that the Anderson court intended to protect.
In the final analysis, if Paulson's act of advising appellants of his interpretation of the building code is not a protected discretionary function, the city would become an insurer of construction:
If we were to hold that the issuance of a certificate of occupancy was not a protected discretionary function, we would essentially be mandating that municipalities become insurers of construction. This is contrary to the purpose underlying the enactment and enforcement of building codes and ordinances. "Building codes, the issuance of building permits, and building inspections * * * are not meant to be an insurance policy by which the municipality guarantees that each building is in compliance with the building codes and zoning ordinances."
Masonick, 494 N.W.2d at 913 (quoting Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 223, 199 N.W.2d 158, 160 (1972) (discussing city's duty to use due care in issuing permits)).
We conclude that the district court properly granted partial summary judgment for the city.
Affirmed.