holding that “the decision making process involved in the issuance of a certificate of occupancy is similar to that involved in the issuance of a building permit and therefore * * * a protected discretionary function”
How later courts described this case
- holding that “the decision making process involved in the issuance of a certificate of occupancy is similar to that involved in the issuance of a building permit and therefore * * * a protected discretionary function”
- holding interlocutory review of non-immunity defense to liability is not appropriate
- review not extended to issue not involving immunity when interests of justice would not be served
- interlocutory appeal of issue involving defense to suit rather than immunity from suit is inappropriate
Written by the judges who cited it.
The opinion
FORSBERG, Judge
(dissenting).
I respectfully dissent from the majority’s opinion on the issue of discretionary immunity. I would find that, based upon the supreme court’s holding in Andrade v. Ellefson, 391 N.W.2d 836, 839 (Minn.1986), the issuance of a certificate of occupancy is not a protected planning level decision entitled to discretionary immunity under Minn. Stat. § 466.03 , subd. 6 (1990).
In Andrade , plaintiffs alleged that Ano-ka County was negligent in its inspection and licensing of a day-care home in which several children were injured. Id., 391 N.W.2d at 837 . The trial court dismissed the action on the grounds of discretionary immunity. Id. at 838 . In reversing, the supreme court stated: “The license inspections conducted by the county were not at the planning or policy level where discretionary immunity usually applies.” Id. at 839 .
*914 The actions of the City in this case are analogous to those of the county in An-drade. The City’s building inspector conducted an inspection of the Masonicks’ home and subsequently issued a certificate of occupancy. The certificate of occupancy essentially operated as a “license” which allowed the Masonicks to move into their new home. Because the actions of the City’s employee occurred at the operational level, as opposed to the planning level, I would hold that under Andrade , the defense of discretionary immunity is not applicable.
A denial of immunity in this case would also be consistent with the rule that the discretionary function exception is to be narrowly construed. In Holmquist v. State, 425 N.W.2d 230, 231 (Minn.1988), the supreme court cautioned:
Read literally, the discretionary function exception would preserve immunity for almost all government acts because almost everything a government employee does * * * involves the exercise of some discretion. We have recognized, however, that the legislature did not intend the discretionary function exception to swallow the general rule of allowing recovery for those injuries negligently inflicted in the performance of government operations.
Finally, a decision holding that the City is not immune from liability for the issuance of a certificate of occupancy would not, as feared by the majority, make the City a de facto insurer of construction. In order to prevail on a claim against the City for negligence, plaintiffs would still have to overcome the public/private duty hurdle. Whether or not plaintiffs would be able to overcome that hurdle is dependent upon the outcome of certain factual disputes, the resolution of which is best left to the fact finder. By declining to allow the City to hide behind the cloak of immunity, all that this court would be doing is giving plaintiffs the opportunity to have their day in court.
For the above reasons, I would affirm the trial court’s denial of appellant’s motion for summary judgment on the issue of discretionary immunity. Accordingly, I dissent.