*1 the motion for interven Intervention where days was several after
tion appeal. its intention to not
announced directly no Minnesota cases
There are However, previously indi-
point. we have
cated disfavor for intervention after trial potential delay
because of the involved
prejudice parties, although we have shortly
allowed intervention if made after Compare proceeding.
the trial court State Lee, v.
Automobile & Cas. Underwriters (Minn.1977), Avery
N.W.2d 573
383,
Campbell, 279 Minn. sought
In this case was not intervention after the district court en-
until months Also, plaintiff. an order in favor of
tered sought
intervention was not until 9 months county’s
after this court had denied the prohibition. We
petition for a writ of con- purposes ap-
clude the intervention inappropriate.
peal untimely
determination that Ronald Brakke is enti-
tled to a final. Aside 47—foot setback is determination, giving finality to that
our prejudice decision is not intended to
any way independent action for intervenors’
damages.
Appeal dismissed. CRACRAFT, minor, by
John his father Cracraft, guardian, et
and natural Jack
al., Appellants, Kasper,
Leon as Trustee for the Heirs of Kasper, al., Appellants,
Kenneth et PARK,
CITY OF ST. LOUIS
Respondent.
No. 47852.
Supreme Court of Minnesota.
April
Meshbesher, Singer Spence, Russell M. & Grant, Minneapolis, M. Spence, and Carol appellants. for Olson, Ochs, Larsen, and Nor- Klimek & Larsen, Minneapolis, respon- man W. dent. Gen., Spannaus, Atty. Richard B.
Warren Gen., Harbison, Allyn, Sp. Kent Sol. and G. Gen., Paul, Atty. for State Asst. St. Minnesota. Wolf, President, Singer,
David A. Thomas Schumaker, Chairman, Ap- and Gordon W. Committee, Paul, for pellate Advocacy St. Lawyers Minnesota Trial Assn. Counsel, Paul, Peskar, Stanley G. Gen. St. League of Minnesota Cities. PETERSON, KELLY, before Heard YETKA, JJ. Reheard and considered en decided the court banc. TODD, Justice. brought by plain- appeal
This is an
Cracraft, individually,
tiffs Jack
and as the
Cracraft;
child,
guardian of his minor
John
Kasper, individually, and as the
and Leon
Kasper,
trustee for the heirs of Kenneth
city of
Louis
against
the defendant
St.
alleged negli-
Park. This suit involves the
gent
inspector
to discover a
failure
municipal
violation of the
fire ordinance at
School,
Margaret’s High
Benilde-St.
St.
Park,
argument by
Louis
Minnesota. After
parties,
judge granted
the trial
summa-
judgment
Plaintiffs
ry
city.
in favor of the
appeal
judgment.
from that
We affirm.
«03
Lorshbough
Township
we were in
27, 1974,
Buz
55-gallon drum of
On October
zle,
(Minn.1977). These
fluid,
We
impose duty
is a factor which tends to
public duty
special
distinction between
Second, reasona-
municipality.8
is not
duty.
concept
of a
care on
*6
immunity
question
6.See,
Tucson,
City
Ariz.App.
the
of whether
rather than
of
20
Duran v.
22,
City
(1973);
duty
509
Modlin v.
of
P.2d 1059
it even has a
of care.
Beach,
(Fla.1967); Dufrene
Miami
«07
municipality’s
knowledge
55-gallon
by persons on the
drum on the
ble reliance
to im-
and conduct
tends
representations
regard
With
loading dock.
to the factor
course, reliance on
a
of care.9 Of
pose
reliance,
had resulted
inspection in
is not sufficient.
problems
discovery of some
and a
was
letter
Instead,
the reasonable
reliance must be
school,
sent
to the
list-
on specific
representations
actions or
based
ing
problems
several
which had to
cor-
be
forego
persons
cause the
other
which
immediately
problems
rected
several
protecting
themselves.
alternatives
possi-
which had to
corrected as soon as
Third,
may
a
an
care
be created
55-gal-
ble. No reference was made to the
or statute that
manda-
ordinance
sets forth
duplicating
Any repre-
lon drum of
fluid.
acts
tory
clearly
for the
a
might
sentations
in this letter
be relied
particular
persons
class of
than the
rather
upon
regard to the
prob-
enumerated
Finally,
municipali-
as a whole.10
lems,
case,
but under
facts
this
increasing
use due
ty must
care to avoid
grounds
reasonable
reliance exist with
risk of harm.11
regard
not set forth in
to hazards
the letter.
case;
Applying these factors to
already
appli-
We have
indicated that
indicating
no evidence in the
we find
record
ordinances,
codes,
not
cable
statutes have
special
that a
was assumed or a
specificity
been drawn with sufficient
con
inspector,
was created. The
without
tradiction,
stated that he had no actual
inspection duty
create
in favor of a
class
9. The factor of reliance is
10.
922
to an
had
officials
cal
a
duty
tect the
edge of threatened criminal
tions
required specifically by
notation,
plaintiff).
tiffs
in Smullen v.
there”
New York Court of
provides: “One who
or for
ances
other
for
for
things,
undertaking,
exercise reasonable care to
taking.”
§
of the other or the
nearby
323(b).
Similarly, Restatement,
“(c)
The statute
Northfield,
wiring
physical
(1976),
trench
case,
knowledge
N.Y.S.2d
decedent
had been created because the
which
established a
area
impose
the harm is suffered because
consideration,
and that it
is
[*]
that her
plaintiff
protection
creek. The court
46 A.L.R.3d
subject
yet
See, also, Restatement,
in an
held that the
collapsed, killing
resident who
harm
he should
if
[*]
did not
City
that'a trench was
considered in
sewer
underwater
neighbor
special duty
when the
to
«09 Justice duty statement that there is is not a Cardozo stated rule in Shepard, 233 N.Y. begs question the essential the Glanzer v. 135 N.E. —whether 275, 276: plaintiff’s legal interests are entitled protection against the defendant’s con- “It learning is that ancient one who act, though duct. It is a shorthand statement of a assumes to even gratuitously, conclusion, may subject thereby duty become analysis rather than an aid to * * acting carefully, if he acts at all.” in itself *. But it should be rec- ognized ‘duty’ is not sacrosanct in Restatement, (2d) expresses 324A§ itself, expression but of the sum this rule as follows: total of policy those considerations of undertakes, gratuitously “One who say partic- which lead the law to that the for consideration to render services to plaintiff protection.” ular is entitled to another recognize which he should as nec- Prosser, Torts, 53, p. 325. essary person of a third things, or his is commentators have also written Other person physical resulting third harm “duty” negli- the nature of the law from his failure to exercise reasonable gence, finding wholly superfluous. it to be undertaking, care to his if general theory expressed by The these writ- (a) his failure to exercise reasonable duty simply ers is that is a restriction on an harm, care increases the risk of such requiring individual’s freedom of conduct (b) perform he has undertaken to reasonably him prudent to behave as a man duty owed the other to the third would behave in similar circumstances. person, or Winfield, Duty Negligence, in Tortious 41; Green, (c) the harm is Problem, suffered because of re- Duty Col.L.Rev. liance 1014; person of the other or the third 28 Col.L.Rev. 29 Col.L.Rev.255. This upon the undertaking.” pointed was persuasively out in A. E. In- Inc., Builders, vestment Corp. v. Link injuries person That as a to third result (1974): Wis.2d of a negligent building fore- “ * * * equally seeable is without doubt. It seems any person plaintiffs clear arguably that the here fit obligation of due care to refrain from categories into of the three set out in any act which will cause foreseeable above, provision the Restatement but most harm though to others even the nature of certainly into the first and third. In the identity harm and the of the harmed instance, first is created because person or harmed interest is unknown at injury inspec- the risk of is increased the time of the act *. report existing tor’s failure to and enforce “A defendant’s is established provision code violations. The creates when it can it was be said that foreseea- upon founded the reliance of either ble that his act or omission to act injured the landowner or the victim on the cause harm party negli- to someone. A case, undertaking. defendant’s gent when he commits an act when some clearly justified. By school’s reliance is harm to someone is foreseeable. Once adopting question, the ordinance in established, the defendant is require- set certain safety minimum fire liable consequences for unforeseeable ments and itself as established the enforce- addition, well as foreseeable ones. In he agent thereby inducing upon ment reliance plaintiffs.” is liable to unforeseeable reports inspector. of its After each majority opinion Nevertheless the is bot- report school received a tomed on the distinction between a city indicating any violations found private duty. and a I be- inspector. It does not seem to be un- lieve this distinction is artificial and that reasonable for the school assume this is analysis borne out a close specific other than the cited in violations legal principles. established report, building the condition *9 810 897, 898, 240 293 N.Y.2d N.Y.S.2d do the landowners come only
safe. Not
J., dissenting).
(Keating,
inspectors, but the
861
reports
N.E.2d
rely on
majority
in
inspections are
are
whose benefit the
public for
What these cases and
majority
duty equals
well. Yet the
no
public
made does so as
saying is that a
effect
public cannot
See,
members of the
tells us that
Adams
agree.
simply
I
cannot
duty.
municipality per-
on services of the
rely
1976); Coffey
State,
(Alaska
P.2d 235
v.
555
to statute or ordinance
pursuant
formed
Milwaukee,
247
74 Wis.2d
City of
due
it
them no
to use
because
owes
132
N.W.2d
negligence and
principles of
care. Common
State, supra,
the Alaska
Adams v.
policy
otherwise.
public
counsel
Court,
sovereign
recognizing that
Supreme
creating
that
it is
majority
contends
abrogated by
immunity
largely
been
had
municipalities, but mere-
no
rule for
state,
suit
upheld a
statute in that
footing
as
ly placing them on the same
alleged that due to
where it was
the state
However, an examination of
person.
Anchorage
of an
negligent
inspection
given in Re-
and illustrations
the comments
fire started in which
inspector,
a hotel
statement,
(2d)
reveals that a
Torts
324A
§
attorneys
people died. The
five
company in the same
private individual or
here,
contended,
do
that
as defendants
state
undoubtedly be
city
would
position as
inspection laws
building codes and fire
inspec-
negligent
for a
were for the
by
of Alaska
enacted
the State
amply supported
proposition
tion. This
only.
In re-
general public
benefit of the
See,
v. United
by the case law.
Hill
States
court there stat-
jecting
argument,
Co.,
(5
Guaranty
811
any
standable.
It is difficult to state with
immunity
legisla-
where the
would create
not.”
Finally, there defenses already set nicipal municipal out our tort activities.” incidental to *11 466.2 ex- legislature c. These in Minn.St. of the trial I the would reverse decision politi- ceptions provide ample court.3 state, further cal and no subdivisions liability judicially need exceptions to tort YETKA, (dissenting). Justice created. join Kelly. of Mr. Justice I in the dissent legal justification stat In to the addition above, public policy of ed there are reasons SCOTT, (dissenting). Justice me that the decision convince agree I of Mr. Justice with the dissent mu By immunizing erroneous. majority is addition, today’s I Kelly. believe that In liability nicipalities arising out of from tort with the holding decision is inconsistent performance “public of negligent the a case of Kossak v. reached in the recent duty,” majority opinion severely under the Stalling, (Minn.1979). In part mines on the a mu any motivation of Kossak, the declared unconstitutional we important such nicipality to insure requirement per duties of suit con- properly as fire commencement rendering meaning these doing duties in tained in 466.05 and so Minn.St. formed — Furthermore, by this hanging less. onto significant striking forward in took a stride immunity, majori governmental relic of the barriers which serve no down such artificial inequity is the strove to ty perpetuating we purpose other than to foster abolished abrogated sovereign banish when we immu immunity. sharp doctrine nity. Judge said it I believe that Desmond contrast, holding in case majority this most in in clearly his dissent the case per- in step backward that it constitutes a Amsterdam, Motyka 15 N.Y.2d immunity by an errone- petuates sovereign 204 N.E.2d N.Y.S.2d unjustified application ous and tradition- 635, 638: principles. negligence al common law time has come to from “The remove very Kelly’s persuasively Justice dissent remaining vestiges our law all explains analysis of proper how a common governmental immunity. We should be contrary law result requires exceptions incongruities. done with majority. from that reached through We should cut wilderness * * * majority’s reasoning defective nature of the say instances apparent by made all the more reference municipal nonliability injury-causing Palsgraf Long case of landmark unjust. archaic breaches of Co., Island R. 248 N.Y. N.E. be held to the same stan- Cities should apply private per- of conduct as A.L.R. 1253 In that oft-cited deci- dards care, provides: due in the execution of a 2. valid Minn.St. 466.03 “Subdivision 1. or invalid apply any statute, ordinance, charter, resolution, regu- Section 466.02 does not claim any in As enumerated this section. lation. municipality every claim upon per- shall be liable in Any “Subd. claim based 6. applicable accordance with the statute and perform failure exercise or formance or the discretionary statute, every where there is no such munici- duty, whether or not function pality liability. immune from shall be the discretion is abused. Any municipality “Subd. claim Any injury 7. “Subd. 2. claim to or death compen- any person as to which the immune covered the worker’s provisions of other statute.” sation act. Any claim in “Subd. 3. connection with It should be noted that the trial court’s deci- assessment and collection of taxes. reluctantly light in sion made of our was Any claim based on or ice “Subd. 4. snow previous trial court’s decisions. The memoran- any highway conditions on urged prior our dum us to overrule decisions place, except when the condition is affirmative- immunity away govern- and to do ly negligent acts the munici- caused “public upon duty” mental based the- units pality. ory. Any upon based “Subd. 5. claim an act employee, exercising of an officer or omission allowing plaintiffs vor of sion, proceed jurist the eminent Mr. Justice Cardozo existence or non-existence that the declared of Mr. Justice Kelly action. dissent at injury duty depends upon whether the of a Accordingly, join I cannot 808-812. reasonably foreseeable. plaintiff which, effect, majority’s decision stated: As Justice Cardozo gives renewed life to the discarded doctrine “ * reasonably to be The risk relying sovereign immunity by on a obeyed, to be perceived defines interpretation strained and mistaken relation; imports and risk it is risk to negligence principles. common law range of another or to others within the apprehension.” 248 N.Y. 162 N.E.
100,
The above as articulated case,
Palsgraf adopted has been and rou
tinely applied by this court in numerous Johnson, g., Vogt v. 278
prior decisions. E. 153, 158, 247, (1967);
Minn. 153 N.W.2d Co., Metropolitan
Austin Life Ins. 214, 217, (1967); 152 N.W.2d Christensen, 204, 212, Hanson v. 275 Minn. PAINTING, B METAL & Y (1966); 145 N.W.2d Rosin v. Inter INC., Appellant, Co., 445, 451, national Harvester 262 Minn. (1962); Connolly v. Nicol 115 N.W.2d Hotel, let 254 Minn. BALL, Respondent. Delphus H. Application of this reasonable foreseeabil- No. 48578. that, ity clearly standard to this case shows Supreme of Minnesota. Court analysis, the proper under a common law St. Louis Park owed May plaintiffs. govern- obvious It seems pre- mental fire is conducted to personal injury, damage, particular
vent may
which otherwise result if certain state regulations
and/or local are violated. Cer- reasonably
tainly, it must therefore be fore-
seeable to the if the in-
spection properly, is not done individuals
who use the such as premises question, case, plaintiffs injured. in this words, regulations inspec-
In other pursuant thereto are in-
tions conducted injuries prevent
tended to the exact kind of plausibly
which occurred here. How can it then, argued, reasonably that it was not improper
foreseeable
could result in harm to those who use the
inspected premises? apparent foregoing, appli-
As is from the standard, Palsgraf
cation of the well-known this court has endorsed over and
over, id., dictates a different conclusion I today.
than that reached the court public policy pertinent
also note that weigh overwhelmingly
considerations in fa-