Back to the Mar-Apr 2020 issue

Torrential Rains Bring Flooded Basement: Is the City Responsible?


Official immunity

In 2010, the City of Madison started a three-year, $10 million project to upgrade its stormwater and sanitary sewer systems. Only two segments of the system were not replaced during the project because the Minnesota Department of Transportation denied the city permission to disrupt the highways over those segments. The city also spent over $4 million upgrading its wastewater treatment facility by installing three new pumps.

On Aug. 11, 2016, a torrential rain fell on the city. Sewer backup caused flooding in the basement of Laureen Dvorak and Timothy Judovsky. The city’s wastewater operator, who is referred to only as “Mr. Vonderharr” in the written court decision, formed the opinion that the stormwater system was full because of the heavy rainfall, which caused the older stormwater pipes (that the city had not been allowed to replace) to break into the sanitary sewer system. It was also speculated that the sewer backup may have been caused by too many residents discharging their sump pumps into the sanitary sewer system, in violation of a city ordinance prohibiting such discharge.

Dvorak and Judovsky sued, raising four separate claims of negligence regarding the city’s failure to enforce its sewer-related ordinances and the actions, and lack of actions, by the city in monitoring, operating, and maintaining the sewage disposal facility. Following a court trial, the district court found that the city was not negligent. The district court also determined that Vonderharr was entitled to official immunity for his discretionary decisions as wastewater operator and that the city was entitled to vicarious official immunity. The Minnesota Court of Appeals affirmed the district court’s decision, reasoning that the massive rainfall event required Vonderharr to make quick and discretionary decisions about how to best respond. Dvorak v. City of Madison, No. A19-0649 (Minn. Ct. App. Dec. 9, 2019) (unpublished opinion). Note: The League of Minnesota Cities Insurance Trust (LMCIT) represented the city.

Duty to defend and indemnify

A former Chisago County employee sued Richard Duncan, the former Chisago County Sheriff, for Duncan’s conduct while he was sheriff. In a one-on-one meeting, Duncan told the subordinate employee that he had received anonymous letters demanding that she and Duncan spend several nights at a hotel together. Duncan also stated that the anonymous letters had threatened her family if they did not comply with the demand. Duncan expressed concern for the employee’s family and suggested that they should comply. The employee declined and ultimately began to believe that Duncan had written the letters.

The employee reported the incident, and the county hired an outside attorney to investigate. Duncan eventually admitted that he wrote the letters, and voluntarily retired. Duncan requested that the county defend him in the former employee’s lawsuit. Under Minnesota Statutes, section 466.07, a municipality must defend and indemnify (protect against legal liability) its officers and employees if the officer or employee: “(1) was acting in the performance of the duties of the position; and (2) was not guilty of malfeasance in office, willful neglect of duty, or bad faith.”

The County Board of Commissioners refused to defend and indemnify Duncan, based on its findings that he was not acting in the performance of the duties of sheriff and that he was guilty of malfeasance and bad faith. The Minnesota Court of Appeals affirmed the decision, concluding that it is consistent with the law and supported by substantial evidence. The Court of Appeals considered the duties of a county sheriff, as defined in state statute, and concluded “that Duncan was not acting in the performance of his duties when he attempted to convince his subordinate employee to spend several nights in a hotel with him by creating an alias who threatened the employee and her family.” Duncan v. County of Chisago, No. A18-1775 (Minn. Ct. App. June 24, 2019) (unpublished opinion).

Hotel registration records

John Thomas Leonard appealed his check forgery convictions, which were based on evidence that City of Bloomington police officers had seized from his hotel room after they obtained Leonard’s identifying informationfrom hotel registration records. Leonard claimed the

search of the registration records was unconstitutional because it violated his Fourth Amendment right to be free from warrantless searches. Hotel operators are required under state statute (Minnesota Statutes, section 327.12) to maintain registration records for hotel guests and to make them “open to the inspection of all law enforcement.”

The Minnesota Court of Appeals held that the search of the registration records was constitutional, concluding that a hotel guest has no reasonable expectation of privacy in identifying information that the guest voluntarily reveals to a hotel operator to rent a hotel room. The Court of Appeals reasoned that, because there is no privacy expectation, there is no violation of a hotel guest’s Fourth Amendment rights when police obtain identifying information by searching hotel registration records. State v. Leonard, 923 N.W.2d 52 (Minn. Ct. App. 2019). Note: The Minnesota Supreme Court has granted review of the Court of Appeals’ decision.

Variance appeal

Charles Bille and Carol Danielson-Bille requested a zoning variance from the Town of Duluth (officially named Duluth Township) to build a home on Lake Superior. The township granted the variance, and John Schulz, Rebecca Norine, and Jack Nelson (the neighbors) appealed the variance decision in district court. Minnesota Statutes, section 462.361 gives any person “aggrieved” by a township or city’s variance decision the right to file an appeal in district court.

The state statute does not specify any deadline for filing such an appeal. But the township’s ordinance imposes a 30-day deadline, stating that “any aggrieved person … shall have the right to appeal within 30 days after delivery of the decision to the appellant.” The neighbors served notice of their appeal on the township within the 30-day deadline, but they did not serve notice on the Billes until after the deadline had passed. The township made a motion to dismiss the lawsuit, claiming that the district court did not have authority to consider the appeal because the neighbors failed to properly serve the Billes, who are a necessary party to the appeal under the district court’s rules of procedure. The district court agreed and dismissed the appeal. The Minnesota Court of Appeals affirmed the district court decision.

The Minnesota Supreme Court reversed the Court of Appeals’ decision and returned the case to the district court with instructions for it to reinstate the lawsuit and to add the Billes as a party to the appeal. The Supreme Court read the requirements of the statute and the ordinance together and concluded that the party appealing a variance decision is only required to serve the municipality that decided the variance application within the 30-day deadline. Once that has been done, the district court can use the rules of procedure to join all parties to the lawsuit that it finds to be necessary. The Supreme Court also concluded that that the Billes are a necessary party to the lawsuit, reasoning that they “own the property for which the variance is being sought and have invested a great deal into the construction of their home.” Schulz v. Town of Duluth, N.W.2d (Minn. 2019).

Paid time off

Donald Hall sued the City of Plainview for breach of contract and violation of state statute (Minnesota Statutes, section 181.13) for its refusal to pay Hall his accrued paid time off (PTO) following his employment termination. At the time of his termination, Hall had accrued 1,778.73 PTO hours. Hall claimed that the employee handbook, which provided for payout of PTO upon separation from employment, provided him a contractual right to the accrued PTO.


The city filed a motion to dismiss the lawsuit, claiming that Hall did not have any contractual employment rights because he was an “at will” employee. The employee handbook contains a disclaimer stating that its provisions “are not intended to alter the relationship between the city as an employer, and an individual employee, as being one which is ‘at will,’ terminable by either at any time for any reason.” The district court ruled in the city’s favor. The Minnesota Court of Appeals affirmed, concluding that the handbook’s disclaimer defeats Hall’s claim that he has a contract right to accrued PTO. The Court of Appeals also concluded that the city did not violate the state statute, which requires the payment of earned wages, because there was no employment contract between Hall and the city. Hall v. City of Plainview, No. A19-0606 (Minn. Ct. App. Dec. 9, 2019) (unpublished opinion). Note: LMCIT represented the city.

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: or (651) 281-1232.