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<br />-- <br />.- <br />-- <br /> <br />500 IDS CENTER <br />80 SOUTH EIGHTH STREET <br />MINNEAPOLIS, MN 55402- <br />3796 <br /> <br />INCLUDING THE LAW FIRM HALL & <br />BYERS, P .A. <br />1010 WEST ST. GERMAIN STREET, SUITE <br />600 <br />ST. CLOUD, MN 56301 <br /> <br />612 632-3000 <br />FAX: 612 632-4444 <br />www.gpmlaw.com <br /> <br />320 252-4414 <br />FAX: 320 252-4482 <br />www.gpmlaw.com <br /> <br />MEMORANDUM <br /> <br />TO: Mayor Stephanie Klinzing and <br />Members of the City Council <br /> <br />FROM: Peter K. Beck, City Attorney <br /> <br />RE: City Liability for Decisions with Respect <br />to the Installation of Sidewalks <br /> <br />DATE: February 17,2005 <br /> <br />Councilmember Dietz has asked that I provide the City Council with a brief <br />Memorandum outlining the City's potential liability for decisions related to the location <br />and installation of sidewalks. <br /> <br />Pursuant to Minnesota Statutes Section 466.03, Subd. 6, the City is immune from <br />liability for, "any claim based upon the performance or the failure to exercise or perform <br />a discretionary function or duty, whether or not the discretion is abused". Discretionary <br />functions or duties are policy or planning level decisions made by the City, not day-to- <br />day or "operational" decisions. To be protected by this immunity the policy or planning <br />level decision must be based upon social, economic and political factors. The Courts <br />analyze such factors as budget, personnel, safety and priority of other projects. <br /> <br />If decisions with respect to where to locate sidewalks and when they will be <br />installed are planning decisions, they are protected by the statutory immunity and the City <br />will not be liable for a claim based on the failure to install a sidewalk. This policy or <br />planning decision must be based upon social, economic and political factors. <br /> <br />The discretionary immunity exception is created by Minnesota state law. <br />Therefore, judicial decisions from other states or jurisdictions are not necessarily relevant <br />to determining whether there will be liability in the State of Minnesota. The most recent <br />Minnesota case I could find on this issue is Fawzy v. Flack, C4-00-846 (Minn. App., <br />November 21,2000), in which the Minnesota Court of Appeals found that the <br />Metropolitan Airports Commission was not liable on a claim that failure to build a <br />pedestrian walkway along a service road resulted in the death of the plaintiff, because the <br />