Traps to avoid in municipal litigation

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A client walks into your office and tells you that a member of her family was killed when a speeding vehicle slammed into the truck in which the family member was riding. But what at first seems like a typical wrongful death action becomes much more complex when the client tells you that the speeding vehicle was a police cruiser in hot pursuit of a burglary suspect.

When suing municipalities, the rules change. Sometimes suits against municipalities are barred, and even when claims against municipalities are allowed to go forward the recoveries are often capped.

Several local attorneys recently discussed with Minnesota Lawyer the nuts and bolts of suing and defending municipalities.

Practitioners encourage attorneys bringing suit against municipalities to consider the following checklist:

• Give proper notice to the municipality under Minn. Stat. sec. 466.05;

• Use the Data Practices Act to the plaintiff’s advantage;

• Consider whether various forms of immunity apply;

• Be cognizant of whether a liability cap applies;

• Be aware of whether the municipality is required to indemnify its agents.

Notice and research

Failing to provide proper notice is one trap for the unwary in bringing suit against a municipality.

Minn. Stat. sec. 466.05 requires every person claiming damages from a municipality to provide the municipality with a notice stating the time, place and circumstances of the alleged loss or injury, along with the names of the individuals involved and the amount of compensation demanded, within 180 days after the alleged loss or injury is discovered. In wrongful death cases, the time to give notice is extended to one year.

It is easy for plaintiffs’ attorneys to overlook the statute, which was designed to alert the municipality or its insurer of a possible claim.

Many plaintiffs’ attorneys also overlook the options available to them to get a jump on the municipality, observed Minneapolis attorney Donald McNeil, whose practice includes municipality defense. The Data Practice Act allows plaintiffs to gather information before litigation begins — an option that is extremely helpful in cases ranging from employment discrimination to police brutality, said McNeil.

Plaintiffs’ attorneys should be aware of all the forms of public information, including whether a police officer accused of excessive force has an aggressive background or whether an employer has had allegations of discrimination in the past, he explained.

Immunity

Lawyers suing municipalities must be prepared to maneuver the “obstacle course of immunity,” said McNeil. “Plaintiffs’ counsel sometimes doesn’t know the immunity issue is coming.”

Minneapolis attorney John Mariani agreed, but added that various immunities are being “woven into caselaw and state law.” As courts begin to routinely find municipalities immune from various types of suits, plaintiffs are less likely to bring those claims unless the potential recovery is worth the cost of litigation, observed McNeil.

Generally speaking, a municipality is liable for its torts and the torts of its agents acting within the scope of their employment — whether arising out of a governmental or proprietary function. But there are some significant exceptions that make it difficult to successfully sue a municipality in tort.

Minn. Stat. sec. 466.02 sets forth exceptions to the general rule that municipalities are liable for their torts. According to the statute, “every municipality shall be liable only in accordance with the applicable statute and where there is no such statute, every municipality shall be immune from liability.” Whether or not an injured plaintiff can recover from a municipality depends largely on the type of function that caused the injury and whether the agent’s actions were discretionary.

Municipalities are immune from claims based on the acts or omissions of its agents in executing a statute, although the plaintiff may recover if an agent of the municipality failed to exercise due care. Municipalities enjoy immunity for policymaking decisions as well, and a municipality is also not liable for its agents’ actions that are discretionary in nature — regardless of whether that discretion was abused.

A few years ago, McNeil successfully defended Metropolitan Transit Commission (MTC) against claims arising out of assaults between passengers on city buses. In its 1996 decision in Watson v. MTC, the Minnesota Supreme Court held that the plaintiff’s negligence action against the bus company based on the bus company’s decisions regarding deployment of security personnel on its buses and the training of its bus drivers on security matters was barred by statutory immunity. Citing Minn. Stat. sec. 466.03, sub. 6 (1994), the court decided that a bus driver’s decisions whether to use the bus intercom or to stop the bus while a fight is taking place among passengers are protected by official immunity, and the bus driver’s employer is also immune from suit.

According to McNeil, the Watson decision effectively ended claims of that sort. While the injured passengers could still recover from the assaulters — if they had any money — they could not recover from the bus driver or the bus company, he observed.

Municipalities are also immune from other types of suits, including claims related to the assessment and collection of taxes and various types of weather-related or property-related claims.

Mariani observed that “snow and ice immunity,” which shields municipalities from suits arising out of injuries caused by precipitation on public highways and sidewalks, is one of the most often invoked immunities in Minnesota. While a municipality would be liable for injuries caused by artificial structures erected by it or affirmative actions on its part, a municipality is not liable in the typical “bread and butter” case in which it failed to fully salt an icy roadway during a snowstorm before an accident occurred, explained Mariani.

Plaintiffs injured in municipal parks may also find their suits barred, said Mariani. Municipalities enjoy “recreational immunity” as a defense against claims based on the construction, operation, or maintenance of park or recreation areas.

In its 1999 unpublished decision in Anderson v. Independent School District No. 891, the Court of Appeals applied recreational immunity and reversed the District Court judge’s denial of the school district’s motion for summary judgment. The plaintiff, then 14 years old, sustained a broken arm when he lost control during a youth basketball game and hit an unpadded block wall on the school district’s premises.

The Anderson court observed that the Legislature provided an exception in the Municipality Tort Liability Act (Minn. Stat. sec. 466 (1998)) for parks and recreation areas that allows state agencies “to treat visitors, in the tort context, as trespassers rather than licensees or invitees.”

Mariani explained that, for example, a person injured because they veered off a trail while sledding down a hill would probably not be able to recover from the municipality that owned the property.

The types of immunity enjoyed by municipalities are many and varied, and attorneys representing injured plaintiffs should
be sure to consider whether the potential recovery is worth the cost of litigating immunity issues.

Liability caps

Plaintiffs’ attorneys should also be aware that even when a municipality is not immune from suit, there are limits to the amount of money that may be recovered. Under Minn. Stat. sec. 466.03, a claimant may only recover damages for personal injury, death, or loss of property — but even those damages are capped. Under Minn. Stat. sec. 466.04, an individual claimant can only recover $300,000 in damages, and the total amount recoverable in all claims arising out of a single occurrence is $1 million in damages. Although twice those limits may be recovered when the claim arises out of the release of a hazardous substance, no punitive damages may be recovered on any state-law claim against a municipality.

According to Mariani, liability caps are intended to protect the public — after all, municipalities make their money by taxing their constituents. Still, the constitutionality of the caps has been challenged, although unsuccessfully.

In a 1999 unpublished decision, In Re: Maria Avenue Natural Gas Explosion, the Court of Appeals determined that the municipality tort liability caps found in Minn. Stat. sec. 466.04 are constitutional. The Court of Appeals applied the rational basis test, finding that the tort liability limits have a legitimate purpose of maintaining a municipality’s fiscal integrity, and that the Legislature could have reasonably believed that the enactment of the liability caps would promote this legitimate purpose.

Last year, Mariani settled a wrongful death suit against the city of Minneapolis in which his client’s recovery was capped at $300,000, an amount Mariani characterizes as “totally inadequate.” Mariani represented the family of Jeffrey Carlson who, along with Steven Winkel, was killed after a Minneapolis police cruiser slammed into Winkel’s truck while in hot pursuit of a burglary suspect. The city did not raise immunity issues because a municipality is not protected from liability for the acts of its employees in violation of the law or of policy, explained Mariani. The driver of the police cruiser was speeding in violation of roadway laws, and also violated rules promulgated by the police department because he failed to turn the siren and lights on when approaching the intersection where the accident occurred, continued Mariani. (Mariani pointed out that this situation differs from, for example, a situation in which an ambulance hits a pedestrian while speeding because emergency vehicles follow different rules.)

However, the municipality was partially protected by the liability caps. While Mariani understands the reasoning behind the caps, he nevertheless would argue that the caps should be lifted, or at least raised. “Each life is different,” observed Mariani. “[A wrongful death action for] Tom Cruise or [the late Timberwolves basketball player] Malik Sealy might be worth more than [a wrongful death action] for Joe Q. Public,” he continued. Absent the caps, Mariani believes that the Carlson’s case would have been worth $500,000 or more.

Federal case

Still, liability caps don’t apply to all cases. Actions brought under federal law, such as 1983 civil rights claims, are not subject to Minnesota’s liability caps. (A municipality’s liability is not capped under federal law, which preempts state law.) Even when vicarious liability does not apply, and a municipality is not technically liable for the acts of its agents, as a practical matter municipalities typically indemnify their agents, observed McNeil. “Defense counsel [for municipalities] must be always mindful of political ramifications,” he added. “Oftentimes suits involving municipalities are front page news. There are a lot of bad things that happen,” continued McNeil.

Minneapolis attorney Robert Bennett recently won Minnesota’s largest voluntary settlement against a municipality for a civil rights violation. Under the terms of the mediated settlement, Washington County will pay about $800,000 to a West Lakeland Township man and his daughter in a civil rights case brought against a sheriff’s deputy. (The man, John Albert Buelow, will receive $533,000, and his 18-year-old daughter, Janie Buelow, will receive $267,000.)

While most of the facts of the case are subject to a protective order, Bennett shared what he could with Minnesota Lawyer. The lawsuit charged that Deputy Tony DiIoia violated Buelow’s civil rights by beating him more than 40 times with a baton — and continued to beat him after he was handcuffed lying on the ground — while Buelow’s daughter watched. (DiIoia had been responding to a domestic dispute at the Buelow home.)

According to Bennett, the pivotal evidence in the case was a recorded 911 call made by the daughter after she had been chased by the deputy.

Bennett added that the deputy’s personnel files indicated that his clients had a very strong case against the county for the negligent hiring, retention and supervision of DiIoia. (The contents of those files are subject to a protective order.) The county was prohibited from raising immunity defenses because such defenses do not apply to excessive-force cases.

Bennett says that the settlement was a product of good facts, good witnesses, and experienced counsel on both sides of the case.

“All of the lawyers were very experienced and savvy,” said Bennett. The case was settled with the help of William D. Foster, whom Bennett describes as “a very experienced and qualified mediator.”

The parties took depositions early on in the case and came to an assessment of damages reasonably quickly given the facts, said Bennett. Civil rights cases differ from most personal injury cases because a prevailing civil rights plaintiff is authorized to seek attorney fees from the defendant, explained Bennett. “It behooved the defense lawyers to attempt to settle the case before the attorney fees became unmanageably expensive,” observed Bennett.