Dissenting, Page, J.
Ralph Sletten, et al., and Blatz, C.J., and Anderson, Russell A., J.
Vicarious official immunity is not available as a matter of law to claims alleging nuisance where a government employee fails to adhere to ministerial duties involved in the operation of a yard waste site.
Vicarious official immunity is available on a claim of negligent failure to warn where the employee's specific duty was not absolute, certain, and imperative and where it was not arising from fixed and designated facts.
Affirmed in part, reversed in part, and remanded.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Gilbert, Justice.
This case arises out of Ramsey County's operation of a compost site on Beam Avenue in Maplewood, Minnesota, from 1984 to 1996.*fn1 Appellant Ramsey County appeals from a decision of the court of appeals affirming the district court's denial of official immunity on respondents' nuisance and negligent failure to warn claims. We affirm on respondents' nuisance claim but reverse on the negligent failure to warn claim.
The respondents include 14 members of three separate families, the Slettens, the Brzinskis, and the Behrens, who reside in close proximity to the compost site (hereinafter collectively referred to as the "Slettens"). The Slettens allege that the compost site exposed them to foul odors, interfered with the use of their property, and caused acute and chronic health problems due to exposure to airborne pathogens (bioaerosols), specifically aspergillus fumigatus spores. The Slettens brought claims against Ramsey County in 1997 and pleaded a variety of theories of recovery: negligent operation of the compost site, trespass, abnormally dangerous activity, maintenance of a nuisance as defined by Minn. Stat. § 561.01 (1996), negligent failure to warn of the dangers of bioaerosols, negligence, nuisance per se, and violation of the Minnesota Environmental Response and Liability Act, also known as MERLA.*fn2
A. Capacity Restrictions on the Site
Ramsey County was required to obtain approval from two governmental units to operate this facility: the City of Maplewood and the Minnesota Pollution Control Agency (MPCA). Ramsey County conceded that the site was regulated by the MPCA. In the MPCA's "Permit-by-Rule Facility Notification Form," Ramsey County certified on May 23, 1990 that it would compost grass and leaves and that the total "facility design waste capacity at the site would be 9,000 cubic yards."*fn3 The capacity restrictions were part of the representations Ramsey County made in order to obtain Permit-by-Rule approval from the MPCA. This capacity limit followed the MPCA mandate that "about one acre of land is needed for each 3,000 to 3,500 cubic yards of yard wastes collected." Based on this certification, on July 5, 1990 the MPCA approved Ramsey County's application to compost a maximum of 9,000 cubic yards of grass and leaves on the Beam Avenue site. Ramsey County alleges that it complied with the MPCA's rules. Rebecca Wirth, a MPCA senior pollution control specialist responsible for regulating yard waste sites in Minnesota, including the Beam Avenue site, states that the "notification form filled out by an owner or operator of a yard waste composting facility is not a permit and does not have the force of law." According to Wirth, "[t]he permit is the rule itself, which contains all of the requirements with which the owner or operator must comply."
In August of 1994, the Ramsey County Division of Solid Waste submitted a report to the Maplewood City Council concerning the Maplewood yard waste site. This information was submitted to the city as background for review of the conditional use permit (CUP) for the yard waste site in issue. The following summary illustrates that there were approximately 60,000 visits per year to the site from 1990 to 1994 and that a total of 117,295 cubic yards were received at this site during that time. According to this summary, 39,463 yards were transferred to other locations, leaving over 77,832 cubic yards at the site.
YearNo. of VisitsCubic Yards ReceivedCubic Yards Managed on SiteCubic Yards Transferred
Beginning in 1991, the City of Maplewood, as regulator, placed restrictions on the operation of the compost site by adopting a CUP, which established the requirements for continued operation of the site.*fn4 The city council issued the CUP with the resolution that the "use would not depreciate property values" nor would it "involve any activity, process, * * * or methods of operation that would be dangerous, hazardous, detrimental, disturbing or cause a nuisance to any person * * * because of * * * dust, odor * * * or other nuisances" and "the use would cause minimal adverse environmental effects." The neighbors of the site had raised concerns about strong odors emanating from the compost site starting in the late 1980s. The CUP specifically conditioned Ramsey County's agreement upon not composting grass clippings at this site, noting "[t]he County shall have the grass clippings removed from the site as often as necessary to prevent odors."
In 1994, the permit was amended to require Ramsey County to remove grass clippings at least three times per week: Monday, Thursday and Saturday. In 1996, the site was changed from a composting site to a yard waste transfer site. The site was to be monitored continuously when the site was open and a written record kept of "the haul out of materials." This was evidently required because of numerous complaints of odor generated at the site. The city also required Ramsey County to pay for an odor consultant, training of city staff for wind and odor monitoring and to pay for the hiring of a third party to verify and measure odors. Thirty-six of the 427 scheduled pickups of grass clippings on that schedule were not made between 1995 and 1999. Ramsey County concedes that these missed pickups were in violation of its CUP, but argues that the error was made by its contractor who "unilaterally" decided to skip the scheduled pickups. Ramsey County also argues that the amount was minimal and the problem was corrected upon discovery. In June 2000, the Maplewood City Council closed the Beam Avenue site.
B. Slettens' Claims of Nuisance and Negligent Failure to Warn
The Slettens allege that beginning in 1994 Ramsey County knew the ground water beneath the Beam Avenue site was contaminated by the release of a number of toxic chemicals dangerous to the environment. Due to this knowledge, the Slettens argue that Ramsey County had a duty to warn all affected persons of the existence of such contamination and the necessity to take reasonable steps to avoid adverse health. The complaint included and incorporated an exhibit relating to the compost site monitoring report and a 1995 water quality monitoring summary report. The results of the report stated, in part, that the concentrations of aluminum, copper, lead, zinc and perhaps mercury exceeded the chronic standard for surface waters. Chronic standard is "the highest water concentration of a toxicant to which organisms can be exposed indefinitely without causing chronic toxicity." Minn. R. 7050.0220 (2001).
The Slettens allege that they suffered substantial physical injuries and property damage on account of the problems associated with this compost site. They allege that they experienced abnormally high incidences of nausea, headaches, fever, burning and watery eyes, skin rashes, sore throats and fatigue. The Slettens provided expert testimony that contained a diagnosis of Type III and Type IV hypersensitivity immune reactions caused by chronic exposure to numerous bioaerosols. They allege that the biological process and the quantities were not properly controlled at this site, and thus anaerobic bacteria resulted, producing not only vile odors, but also gram/negative bacteria and various pathogenic bioaerosols.
From 1990-1996, Ramsey County certified in required annual forms to the MPCA that the Beam Avenue site's yard waste capacity was 9,000 cubic yards. The Slettens allege that Ramsey County significantly exceeded its represented and authorized design capacity.*fn5 In 1993, for example, Ramsey County received 27,480 cubic yards of yard waste and transferred only 6,240 cubic yards, leaving 21,240 cubic yards to be managed on the site, or 12,240 cubic yards over the permitted amount for compost. The permit violations led to the alleged formation of anaerobic bacteria and other pathogenic bioaerosols, as well as odorous compounds such as ammonia and hydrogen sulfide. Ramsey County's compost expert, Dr. Elliot Epstein, stated in a 1997 book that ammonia is released from decomposing grass clippings and when anaerobic conditions occur, odorous sulfide compounds such as hydrogen sulfide are produced.
The Slettens alleged that the county "per se" violated the Permit-by-Rule authority of the MPCA by composting yard waste in excess of permit restrictions. The Slettens further alleged that the county violated the "ministerial duty to abide by" the "operational parameters" of the CUP granted by the city by failing to remove thousands of cubic yards of grass clippings from the compost site in a timely manner. Ramsey County argued that it reported to the MPCA the amount of grass and leaves it received at the site, that it did not exceed the site's capacity, and that the site was described by the MPCA as a "model site." Zachery J. Hanson, the Environmental Health Director for the Ramsey County Department of Public Health, states that the "staff at the Maplewood site complied with MPCA rules pertaining to yard waste sites and the City of Maplewood's conditional use permit for the site."
C. Ramsey County's Immunity Defenses and Summary Judgment Motions
The answer submitted by Ramsey County on December 22, 1997, asserted an affirmative defense of "both statutory and common law immunity" without specifying what theories of immunity it was relying on. In its first motion for summary judgment seeking immunity, Ramsey County sought statutory immunity and unimproved property immunity under Minn. Stat. § 466.03, subds. 6 & 13 (2002). The district court denied the request for immunity and the court of appeals affirmed. In the first appeal, the court of appeals held that "[b]ecause statutory immunity does not protect operational decisions, the district court did not err in denying [Ramsey County's] motion for summary judgment." Sletten v. City of Maplewood, No. C7-98-2377, 1999 WL 595368 (Minn. App.), rev. denied (Minn. Oct. 26, 1999) ("Sletten I"). The court of appeals further denied the request for unimproved property immunity because Ramsey County had actually improved the property. Ramsey County did not seek vicarious official immunity in its first summary judgment motion.
On December 22, 2000, Ramsey County brought another motion for summary judgment on a new theory of vicarious official immunity. Ramsey County brought this motion after extensive discovery.*fn6 Ramsey County argued that as a matter of law, it was not negligent in its maintenance of the Maplewood composting site, that the decisions as to when to turn the windrows*fn7 was discretionary and, therefore, Ramsey County was entitled to immunity for said actions. Ramsey County also agued that the Slettens had failed to demonstrate causation and damages as a result of, among other things, the grass hauling frequency, that the Slettens could not prove negligence in Ramsey County's operation of the site, and that they could not recover for nuisance, trespass or failure to warn. As part of this motion, Ramsey County attached copies of the city's CUPs and evidence of the MPCA's authority. Ramsey County only requested that immunity be applied to the turning of the windrows, which it characterized as a discretionary act. The district court characterized the challenged activities as "operational level activities" rather than planning or policymaking activities. Ramsey County claimed that the act of turning the windrows (when and how to turn them) falls under vicarious official immunity. Ramsey County also argued that there was a lack of evidence relating to the negligence claim regarding hauling of grass and control of water from the site. With regard to the failure to warn claim, Ramsey County argued that it had no duty to warn the neighbors concerning the results from a 1994 leachate water study and the Slettens suffered no damages.
D. The Summary Judgment Rulings
On April 27, 2001, the district court granted summary judgment on the negligence claim, concluding that the activities complained of were covered under official immunity. The court also concluded that the Slettens had failed to show harm resulting from the untimely grass clipping pickups. The court also dismissed the trespass to real property claim based on insufficient evidence and dismissed the MERLA claim based on not finding a hazardous substance present at the compost site. These issues are not on appeal.
The district court denied summary judgment on the Slettens' claim that Ramsey County maintained a nuisance. The court concluded that the Slettens had submitted sufficient facts to raise an issue as to whether the compost site was offensive to the senses and interfered with the enjoyment of their homes. The court also reasoned that a nuisance claim was different than negligence because a nuisance claim focuses more on the problem created rather than the conduct. To maintain a nuisance action, a plaintiff need not establish a duty or a breach. The court concluded that genuine issues of material fact existed as to whether any of the claimed damages arose from the compost site's gate, driveway, retention ponds, and lighting.
The district court also denied summary judgment on the Slettens' negligent failure to warn claim, concluding that vicarious official immunity did not extend to this claim because the Slettens raised genuine issues of material fact as to whether Ramsey County had actual knowledge of dangerous conditions and assumed a "specific ministerial duty to warn" nearby homeowners about the health risks associated with aspergillus fumigatus. Ramsey County appealed the district court's partial denial of summary judgment, arguing that the district court erred when it declined to apply the doctrine of vicarious official immunity to the Slettens' nuisance and negligent failure to warn claims.
The court of appeals affirmed. Sletten v. Ramsey County, No. C2-01-1066, 2002 WL 109272 (Minn. App.), rev. granted (Minn. April 23, 2002) ("Sletten II"). It reasoned that Ramsey County could not have the discretion to operate a compost site that created a nuisance dangerous to public health, and thus held that under the facts alleged Ramsey County could not claim immunity on the nuisance claim. Id. at *2-3. The court of appeals also held that Ramsey County was not entitled to vicarious official immunity with respect to the negligent failure to warn claim because, under the facts alleged, Ramsey County had no discretion to decide whether to warn of known dangers, especially in light of its concession that it owed a duty and knew of the dangerous nature of the pathogens. Id. at *6-7. Some of the same day-to-day operational decisions of the composting facility decided in Sletten I are before us here. Ramsey County requested review on whether vicarious official immunity applies to nuisance and negligent failure to warn claims. We affirm the court of appeals in part, reverse in part, and remand to the district court for trial.
We first consider whether official immunity can apply to nuisance claims. Official immunity is a common law doctrine that protects government officials from suit for discretionary actions taken by them in the course of their official duties. Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998). The goal of official immunity is to protect public officials from the fear of personal liability, which might deter independent ...