Mallory S. Loftus, as trustee for the heirs and next of kin of C.D.L., decedent, Respondent, vs. Hennepin County, through its agents and employees, including Hennepin County Children and Family Services Department, Appellant, JoAnne Beard, Respondent.

STATE OF MINNESOTA 
 IN COURT OF APPEALS 
C4-98-1994

Mallory S. Loftus, as trustee for the heirs
and next of kin of C.D.L., decedent,
Respondent,

vs.

Hennepin County, through its agents and
employees, including Hennepin County Children
and Family Services Department,
Appellant,

JoAnne Beard,
Respondent.

Filed April 13, 1999
Affirmed
Davies, Judge

Hennepin County District Court
File No. 981190

Stephen J. Foley, Cynthia R. Bartell, Foley & Mansfield, P.L.L.P., 200 Lafayette Bldg., 1108 Nicollet Mall, Minneapolis, MN 55403 (for respondent Loftus)

James R. Peterson, Legal Assistance to Minnesota Prisoners, Emily M. Rome, Certified Student Attorney, 95 Law Center, 229 19th Ave. S., Minneapolis, MN 55455 (for respondent Beard)

Mike Hatch, Attorney General, James S. Alexander, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota St., St. Paul, MN 55101-2128 (for appellant)

Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Halbrooks, Judge.

S Y L L A B U S

The Municipal Tort Claims Act, Minn. Stat. § 466.03, subd. 6d (1998), precludes immunity on a claim that a county negligently licensed a day-care facility despite its knowledge of dangerous conditions. The State Tort Claims Act, Minn. Stat. § 3.736, subd. 3(j) (1998), bars such claims against the state, but because of the above provision, a county cannot assert licensing immunity under the State Tort Claims Act.

DAVIES, Judge

Appellant Hennepin County, asserting licensing immunity, contests the district court's denial of its motion to dismiss respondent's wrongful death complaint. We affirm.

Hennepin County is the defendant in a wrongful death suit brought by respondent Mallery Loftus, whose son Calvin died from injuries he suffered at a family day-care center run by respondent JoAnne Beard. [1] Appellant, which inspects and licenses all family day-care facilities located in Hennepin County, allegedly knew of dangerous conditions at Beard's center but negligently failed to investigate them before licensing the center.

Appellant moved to dismiss Loftus's suit, asserting licensing immunity under the State Tort Claims Act, Minn. Stat. § 3.736, subd. 3(j) (1998), as interpreted in Andrade v. Ellefson, 391 N.W.2d 836, 840 (Minn. 1986). The district court denied appellant's motion, holding that: (1) the limited immunity provided by the Municipal Tort Claims Act, Minn. Stat. § 466.03, subd. 6d (1998), applied to Loftus's claims; and (2) Loftus's claims were not barred by that act. This appeal followed.

Is respondent's wrongful death claim subject to the licensing immunity provisions of the State Tort Claims Act, Minn. Stat. § 3.736, subd. 3(j) (1998), or subject to the narrower immunity provisions of the Municipal Tort Claims Act, Minn. Stat. § 466.03, subd. 6d (1998)?

Interpretation of statutes is subject to de novo review. Bol v. Cole, 561 N.W.2d 143, 146 (Minn. 1997). "[S]tatutorily created immunity should be construed narrowly." Id. at 147.

The State Tort Claims Act provides that the state and its employees are not liable for

a loss based on the failure of a person to meet the standards needed for a license, permit, or other authorization issued by the state or its agents.

Minn. Stat. § 3.736, subd. 3(j) (1998). Subdivision 6d of the Municipal Tort Claims Act grants narrower immunity, providing that municipalities are not immune in licensing matters if

the municipality had actual knowledge of a failure to meet licensing standards that resulted in a dangerous condition that foreseeably threatened the plaintiff.

Minn. Stat. § 466.03, subd. 6d (1998). The Municipal Tort Claims Act defines "municipality" to include counties. Minn. Stat. § 466.01, subd. 1 (1998).

Appellant argues that it acted as a state employee by inspecting and licensing Beard's family day-care facility, and that the State Tort Claims Act bars Loftus's claim. Appellant relies on Andrade v. Ellefson, in which the supreme court held that

when the county acts for the state in performing a responsibility assigned to the state but delegated by it to the county, * * * the county partakes in the state's immunity.

Andrade v. Ellefson, 391 N.W.2d 836, 840 (Minn. 1986). In Andrade, the supreme court reasoned that counties act as state "employees" when they inspect and license family day-care facilities. Id.

The problem with appellant's argument is that the Municipal Tort Claims Act, as quoted above, was not applicable to the facts in Andrade. The Andrade decision itself contains no reference to subdivision 6d, which was enacted during the interim between this court's Andrade decision [2] and the supreme court's reversal of that decision. See 1986 Minn. Laws ch. 395, § 14 (enacting subdivision 6d). Appellant impliedly asserts that subdivision 6d was negated by the supreme court's decision in Andrade. Although subdivision 6d does not, on its face, reverse the supreme court's rationale in Andrade--that counties act as "employees" of the state when they inspect and license family day-care facilities--the legislature is not required to foresee, and explicitly reject, subsequent judicial reasoning.

Subdivision 6d, by its terms, is clearly applicable to the facts of this case. See Minn. Stat. § 645.16 (1998) (letter of law must be followed when words of law are clear and unambiguous in their application to specific situation). To hold that subdivision 6d does not apply to the facts of this case would require us to ignore the plain language of the statute. We refuse to do so. The bottom line is that Andrade does not control the result in this case, as it was decided under a statutory framework different from the present case.

Under Minn. R. Civ. P. 12, we must presume that the facts alleged in respondent's complaint are true for purposes of appellant's motion to dismiss. Hardrives, Inc. v. City of LaCrosse, 307 Minn. 290, 296, 240 N.W.2d 814, 818 (1976). We, therefore, assume that appellant "had actual knowledge of a failure to meet licensing standards" in Beard's day-care facility. Minn. Stat. § 466.03, subd. 6d. This presumed failure to meet licensing standards also presumably "resulted in a dangerous condition that threatened" Calvin Loftus. Id. Respondent's claims meet the statutory standards required to avoid the immunity bar of the Municipal Tort Claims Act.

The district court properly denied appellant's motion to dismiss.

Affirmed.

[1] Beard, convicted of second-degree felony murder for Calvin Loftus's death and currently imprisoned, filed a cross-claim against appellant for contribution and submitted an appellate brief. This court ordered the contribution portion of Beard's brief struck. Loftus v. Hennepin County, No. C4-98-1994 (Minn. App. Feb. 9, 1999) (order op.). Beard has no other claim that requires review at this time.

[2] Andrade v. Ellefson, 375 N.W.2d 828, 833 (Minn. App. 1985).