11-10-1997 Council Packet - Laserfiche WebLink

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422 NORTH WESTERN REPORTER. 2d SERIESSee also Dudley v. Village of Buffalo, 73 Minn. 347, 76 N.W. 44 (1898). That seems to be the underlying basis of Chabot's com- 'plaint here. However, under Roche and Dudley, the city is not liable for that re sult [5] Significantly, the trial court dis missed ail allegations of negligent mainte nance at trial, finding no evidence of any improper maintenance or blockage result ing from the city’s actions or inactions. Thus, the basis of tort liability in the cases relied upon by the court below (e.g.. Pet- linger; Greenwood) is not applicable to these facts. The only allegation of negli gence remaining which was submitted to the jury was based solely on the alleged inadequacy of the holding pond. The ma jority of the court below appeared to hold, as the dissenting judge pointed out, that "inadequacy is the equivalent of negli gence.” 412 N.W.2d at 379 (Sedgwick, J., dissenting). Under Roche, however, mere inadequacy of the drainage system is not the basis of tort liability under Minnesota law. A city has never been required to install a sewer sjrstem or to install a sys tem that is adequate to take care of all water. Roche. 223 Minn, at 365,27 N.W.2d at 298. In other words, while there is a duty to repair and maintain, there is no duty to build. One fact does distinguish this case from Roche and appears to have been a signifi cant factor in the lower court’s determina tion that a duty existed and was breached. The city had received notice, by means of the 1981 Barr report, that this holding pond, as well as several other storm water areas in Uie dty, was potentially inade quate. At the time of the incident in 1983, the dty had faded to act to implement the suggestioos in the Barr report, as applied to this or apparently to any other water shed in the dty. It is this failure to act which has served as the sole basis for the dty’s liability. It is at this point that the lower court's analysis becomes completely inadequate. It is not clear precisely what duty has been imposed on the city as a result of its notice of the possible in^equacy of this holding pond. The Barr report covered other wa tershed are? s of the city and made suggestions for needed capital improvements in other areas as well as this one. Even in its assessment of this holding pond, the report did not specifically advise the city that there was an unreasonable danger of flood damage. The cost of implementing the rec ommended improvements for this water shed was in excess of $600,000. The city introduced evidence that its decision not to act to implement the suggested capital im provements resulted in part from very strong public opposition to increased ex penditures. There was no evidence that the city ever had sufficient funding to im plement any portion of the Barr report prior to 1983. In effect, the imposition of liability here has usurped the city’s discretion to decide how or when to act to implement any part of the Barr report The court and the jury have effectively decided that it was neces sary for the city to implement this particu lar section of ^e Barr report Notice of inadequacy was converted to an absolute duty to rebuild. However, no consideration was given to the city council’s need to make this decision while considering the best interests of the rest of the community, especially as those interests would be af fected by a decision to implement (or not to implement) the remainder of the lengthy report The report did more than address the possible inadequacies of this one small holding pond. Liability has been imposed, however, because the city failed to imple ment one suggested improvement without properly considering the context of the city’s decision or the need to determine which of the many other suggested im provements was to be given priority. The reality of the situation was that the city did not and could not act immediately to imple ment the Barr report 'The mere accept ance of the report should not be held to have imposed a duty on the city to act at once to correct every inadequacy pointed out in the report Under the lower court’s holding, it would be theoretically possible for the city to be held liable in negligence to everyone who is injured due to the city’s faOure to implement the Barr report Thus, receipt of the Barr report alone is an insufficient basis for liability.