Official immunity of engineering firm functioning as city engineer, by Hugh Anderson

Issue: Official immunity of engineering firm functioning as city engineer. Kariniemi v. City of Rockford. Court of Appeals of Minnesota (2015).

Summary: The City of Rockford, Minnesota, retained a private engineering firm, Bonestroo, to act as city engineer. One task was to design storm sewers, retention ponds, and street grading for a new residential development. Years later, flooding damaged the property of an adjacent landowner, who sued the city on various grounds, including design errors by the city engineer. The city raised the defense that both it and the engineering firm were immune under state statutes granting immunity for certain actions by municipal officials.

In Minnesota, as in other states, municipal officials have immunity for “discretionary” acts undertaken in their official capacity. Failure to carry out a non-­‐discretionary duty,  such  as  a  clerical  obligation  to  file  a  submitted  document,  is  actionable; whereas there is immunity for errors in performing discretionary acts. Is design of sewers and other improvements a discretionary act for purposes of determining immunity? Another issue under this subject is whether independent contractors retained by a municipality qualify for the immunity.

Decision: The Court of Appeals presented an interesting discussion of whether independent contractors can share in the municipal immunity. The court reviewed a recent U.S. Supreme Court decision on a similar question involving a private individual who was hired to conduct a fire investigation. Based on the history of common law immunity (for example, the judicial immunity enjoyed by part-­‐time judges in the 19th century), the Supreme Court concluded that there was no reason to deny immunity to private citizens or entities that perform the same work that is otherwise done by government employees.

The claimants in the Minnesota case objected that if the immunity was extended to independent contractors, then construction contractors on public projects would escape liability for dangerous acts. The court held that “Official immunity for design does not necessitate official immunity for construction.” According to the court, design involves the application of “expertise and discretion, balancing the often-­‐ competing considerations of cost, quality, and aesthetics” whereas construction involves merely the “ministerial” role of executing the design provided by the owner and A/E. Thus the court was not concerned that the decision would create a vast category of construction immunity.

Comment: As noted in a recent posting about this case by attorney Kent Holland, municipalities often require design firms to waive any entitlement to official immunity. Such waiver requirements may be contrary to the municipalities’ best interests, because the immunity reduces risks and thus should result in better pricing for A/E services.

EJCDC’s Engineering Subcommittee may want to discuss the possibility of a standard clause that affirmatively acknowledges entitlement to immunity if available under controlling law.