Minnesota Cities Magazine
More from Mar-Apr 2017 issue

From the Bench: Lawsuit Claims Bus Driver’s Negligence Caused Accident on Icy Road

Street full of snow and iceGOVERNMENTAL IMMUNITIES
Snow-and-ice immunity

Earl Surman drove a Metro Transit bus that rear-ended Jason Hoff’s van. Hoff sued Surman and the Metropolitan Council, claiming that Surman’s negligent driving caused the accident. A Metro Transit safety specialist investigated the accident and concluded that “icy road conditions clearly were a factor in causing the accident.” The Metropolitan Council was not responsible for maintaining the road on which the accident occurred.

Surman and the Metropolitan Council made a summary judgment motion, claiming that they were entitled to snowand- ice immunity under Minnesota Statutes, section 466.03, subdivision 4. This immunity provides that municipalities are immune from any claim “based on snow or ice conditions on any highway or public sidewalk” that does not abut a publicly owned building or parking lot except “when the condition is affirmatively caused by the negligent acts of the municipality.” Hoff argued that courts have exclusively applied snow-and-ice immunity to municipalities that are responsible for maintaining public roadways and that this immunity should not bar claims based solely on negligent driving.

The district court denied the summary judgment motion. The Minnesota Court of Appeals affirmed, holding that snowand- ice immunity does not extend to bar claims based solely on allegations of negligent driving. The Court of Appeals reasoned that there is statutory language connecting snow-andice immunity to a municipality’s duty to maintain public roads and sidewalks in a safe condition for travel. Hoff v. Surman, 883 N.W.2d 631 (Minn. Ct. App. 2016).

DRIVER'S PRIVACY PROTECTION ACT
Suspicious pattern of access

Sarah Tichich and several other Minnesota driver’s license holders sued several cities, other government entities, and government employees under the federal Driver’s Privacy Protection Act (DPPA) for allegedly accessing their personal information without a permissible purpose. The district courts dismissed the actions for failure to state a claim. The 8th U.S. Circuit Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. The Court of Appeals also further explained its earlier holding in McDonough v. Anoka County, which held that a DPPA claim may be established by showing a suspicious pattern of accessing personal data.

The Court of Appeals clarified that sequential accessing of data, occurring within a several-minute time span, should be considered a single, continuous “obtainment” of the personal data. The Court of Appeals reasoned that although closein- time accessing of data falls within the technical meaning of the obtainment of personal information as explained in McDonough v. Anoka County, in the absence of evidence to the contrary, it should be viewed as constituting one continuous acquisition of personal information by the same user at the same time, rather than as separate acquisitions, for the purpose of establishing whether a suspicious pattern exists. Tichich v. City of Bloomington, 835 F.3d 856 (8th Cir. 2016).

EMPLOYMENT LAW
Discrimination claim

Johnny Lee Grant, a 59-year-old African American, was an at-will employee of the City of Blytheville, Arkansas, when he was reassigned from truck driver to crew member in the Street Department. The reassignment had no effect on Grant’s title, work hours, or pay, but he claimed that it deprived him of prestige as a driver. Grant refused to accept the change and was fired for insubordination.

Grant sued, claiming he was terminated because of his race and age. After receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), Grant filed a complaint against the city in federal district court. He sent a copy of his complaint to the mayor, whose staff acknowledged service but incorrectly assumed that the complaint related to the EEOC charge and did not require an answer. After Grant obtained a default judgment, the city realized its error and promptly moved to set aside the default judgment.

The district court granted the motion after concluding that the misunderstanding was good cause for the city’s failure to file a timely answer. The district court also granted the city’s motion for summary judgment, concluding that Grant had failed to present sufficient evidence to establish that the city’s reason for firing him was a pretext for discrimination.

The 8th U.S. Circuit Court of Appeals affirmed on different grounds. The Court of Appeals noted that in order to establish a valid case of discrimination, Grant had to show that he was a member of a protected class, that he met the city’s legitimate employment expectations, that he suffered an adverse employment action, and that the circumstances gave rise to an inference of discrimination based on race or age. The Court of Appeals held that Grant had not demonstrated that the circumstances surrounding his discharge gave rise to an inference of discrimination. The Court of Appeals reasoned that Grant could not identify any similarly situated employees outside his protected class that the city had treated more favorably and noted that the person who replaced him as a driver was a black male over the age of 40. Grant v. City of Blytheville, Arkansas, 841 F.3d 767 (8th Cir. 2016).

judge's gavel on constitutionCONSTITUTIONAL LAW
First Amendment

Basim Sabri and four other members of the Whittier Alliance, a nonprofit neighborhood organization that receives funding from the City of Minneapolis, sued under Section 1983 of the Civil Rights Act alleging that the city violated their First Amendment rights. They claimed that the city “commanded and encouraged” the Alliance to adopt an anti-defamation bylaw that unconstitutionally restricts its members’ freedom of speech. To receive city funding, a neighborhood organization must be incorporated, have bylaws and an elected board of directors, and ensure that the organization’s membership is “open to all residents.”

The applications of Sabri and the other plaintiffs to serve on the Alliance’s board had been denied in the past because they did not have a documented history of engagement with the Alliance. Sabri and the others voiced their opposition to what they characterized as the board’s racist policies and ultimately filed a grievance claiming that the board had implemented policies deliberately designed to exclude racial minorities from leadership positions. The grievance was denied, but the city required the Alliance to revise its bylaws to be more explicit about its election process and the qualifications for board candidacy. The Alliance amended its bylaws, adopting a new requirement for board candidates to show ongoing participation with the organization and attendance at meetings during the current year. The Alliance also approved an anti-defamation bylaw, requiring that board candidates must “not have committed an act of malice or defamation against the Alliance or any member of its board.”

The district court dismissed the lawsuit. The 8th U.S. Circuit Court of Appeals affirmed in part. The Court of Appeals held that Sabri and the others had suffered sufficient injury as voting members of the Alliance to have standing to sue. But the Court of Appeals held that the required state action to support a claim under the Civil Rights Act was lacking. The Court of Appeals reasoned that the Alliance’s adoption of the 2015 bylaws did not amount to state action because the city’s recommendation to amend the bylaws was not coercive, and the city did not and could not mandate the passage of any particular bylaw. Sabri v. Whittier Alliance, 833 F.3d 995 (8th Cir. 2016).

SPECIAL ASSESSMENT
Appeal

The City of East Bethel adopted a resolution ordering Gary Otremba and Heidi Moegerle to remove a retaining wall on their property that encroached upon the city’s adjoining right of way. Otremba and Moegerle failed to remove the retaining wall, so the city removed it and adopted a resolution levying a special assessment against the property to recover its costs. After Moegerle paid the special assessment, the property owners filed an appeal requesting in part that the district court order the city to reimburse the payment of the special assessment, award punitive damages, and require the city to publish an apology.

The district court dismissed the appeal. The Minnesota Court of Appeals affirmed, holding that the plain language of Minnesota Statutes, section 429.081 does not give a district court authority to grant the relief that the property owners sought. The Court of Appeals noted that under the statute, the scope of relief the district court can grant is limited to either affirming a special assessment or setting it aside and ordering a reassessment. In addition, a concurring opinion concluded that the appeal was properly dismissed because the property owners waived their right to appeal by paying the special assessment. Otremba v. City of East Bethel, No. A16-0722 (Minn. Ct. App. Nov. 28, 2016) (unpublished opinion).

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

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