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A private engineering firm, under contract to a city to act as the City Engineer, was entitled to have a negligence and nuisance suit against it dismissed based on official or governmental immunity that was extended to it as an agent of the city acting as a “public official” when designing a storm-water drainage system. Official immunity turns on the conduct at issue, whether the conduct is discretionary or ministerial, and, if discretionary, whether it was willful for malicious. The fact that the engineer had malpractice insurance as required by its contract, did not deprive it or the city of the protective benefits of the official immunity doctrine. Kariniemi v. City of Rockford, 882 N.W.2d 593 (Mn. 2016).

 

The trial court granted summary judgment on the negligence action, but declined to do so on the nuisance count of the complaint, concluding that more evidence was needed. On appeal, the court held that the official immunity doctrine applied equally to the negligence and nuisance allegations and the entire complaint should have been dismissed.

Instead of having a full time employee serve as “City Engineer,” the City instead contracted via a Professional Services Agreement (PSA) with a with a private firm for provision of those services. The contract stated that the City desired “to retain [engineering firm] from time to time to provide such professional services for general engineering needs as well as for the planning, design, and construction of public works….”

Pursuant to its contract, the engineer designed and oversaw construction of certain storm water runoff improvements. Owners of a home in the vicinity claimed that as a result of the engineer’s negligent services, their property was flooded. The homeowners filed suit against the city as explained above. It was the city’s motion for summary judgment that was decided by the court. It does not appear from the decision that the engineer, itself, was sued by the homeowners. The way the court framed the legal issue was that the engineer was entitled to official immunity, and because he had that immunity, the city vicariously had the same immunity.

Comment: This decision once again demonstrates the power of governmental immunity, or official immunity, as it may be called. In some cases, the government entity is entitled to immunity directly, and then the engineer or contractor may be able to claim that as an agent of the city it gets to clothe itself with that same immunity when acting in its capacity as engineer for the government. If an engineer or contractor may be legally entitled to raise governmental immunity protection as a defense against third party claims, a public owner should not deprive the firm of that defense. A number of contracts that I review include language whereby the public owner requires their design professionals and contractors to waive any governmental immunity defenses they might otherwise be entitled to. I don’t believe this makes any sense. If a defense could be available, how does it benefit the public owner to deprive its private contractors of the use of that defense – unless the public owners are just trying to make trial lawyers and citizens happy by being able to recover where they otherwise could not.

 

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 19, No. 1 (January 2017).

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