Claims against a city, county, or the state: the immunities come first, and the clock is short

Minnesota waived governmental immunity and then wrote the exceptions back in by statute. A claim against a public body has to survive a list of enumerated immunities, a damages cap, and a notice period that closes in 180 days.

Two things make a claim against a public body different from a claim against a private one, and both of them operate before anybody argues about how the injury happened. There is a list of subject matters the legislature removed from liability entirely, and there is a notice period that closes in about six months while the underlying limitation period is still years away.

The deadlines guide sets out where the notice periods sit among Minnesota’s other injury clocks. This page is about the rest of the structure — what the immunities are, how narrow the largest one actually is, what the caps do, and who counts as the government in the first place.

The default flipped, and it flipped by statute

Minnesota’s governmental immunity was judicially abolished in two steps, and Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 718 (Minn. 1988), describes the result in one sentence:

Thus, prior to Nieting and the legislation governing tort claims against the state, the general rule was immunity with limited exceptions of liability. After Nieting, however, the general rule is now liability (if it is established under general tort principles) with limited exceptions of immunity such as where the alleged tortious conduct constitutes a discretionary function.

The legislature then wrote both halves down. For municipalities, Minn. Stat. § 466.02:

Subject to the limitations of sections 466.01 to 466.15, every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.

For the state, Minn. Stat. § 3.736, subd. 1 provides that the state “will pay compensation for injury to or loss of property or personal injury or death caused by an act or omission of an employee of the state while acting within the scope of office or employment,” under circumstances where the state, if a private person, would be liable — again “whether arising out of a governmental or proprietary function.” The same subdivision preserves one category outright: “Nothing in this section waives the defense of judicial, quasi-judicial, or legislative immunity except to the extent provided in subdivision 8.”

The exceptions, and how they operate

Minn. Stat. § 466.03, subd. 1 states the mechanism plainly, and the last clause is the part that matters:

Section 466.02 does not apply to any claim enumerated in this section. As to any such claim every municipality shall be liable only in accordance with the applicable statute and where there is no such statute, every municipality shall be immune from liability.

The enumerated list runs from subdivision 3 through subdivision 25 and is longer than most readers expect. Several of the exceptions carry their own carve-outs, and the carve-outs are where these claims are actually contested:

• Snow and ice, subd. 4(a). Immunity for “[a]ny claim based on snow or ice conditions on any highway or public sidewalk that does not abut a publicly owned building or publicly owned parking lot, except when the condition is affirmatively caused by the negligent acts of the municipality.” Three conditions are doing work there: the location has to be a highway or public sidewalk, the sidewalk has to not abut a publicly owned building or parking lot, and the condition has to not have been affirmatively caused by the municipality’s own negligence. Paragraph (b) adds a rule for a municipality that owns or leases a building or parking lot inside another municipality.
• Execution of a statute, subd. 5. Immunity for a claim based on an act or omission of an officer or employee “exercising due care, in the execution of a valid or invalid statute, charter, ordinance, resolution, or rule.” The due-care requirement is part of the exception, not an afterthought.
• Discretionary acts, subd. 6. Immunity for “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” Treated at length below.
• Unimproved real property, subds. 6b and 13. Subdivision 13 defines what that means: land the municipality has not improved, land containing idled or abandoned mine pits or shafts, and “appurtenances, fixtures, and attachments to land that the municipality has neither affixed nor improved.”
• Parks and recreation areas, subd. 6e. Immunity for claims based on the construction, operation, or maintenance of municipal property “intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services,” and for claims based on clearing land, removing refuse, and creating trails or paths without artificial surfaces — but only “if the claim arises from a loss incurred by a user of park and recreation property or services.” The subdivision then preserves liability “for conduct that would entitle a trespasser to damages against a private person,” subject to subdivision 23.
• Licensing, subd. 10. Immunity for “[a]ny claim for a loss based on the failure of any person to meet the standards needed for a license, permit, or other authorization issued by the municipality or its agents.” Subdivision 6d handles day care licensing separately, with an actual-knowledge exception.
• Recreational use of school property, subd. 23. Immunity for a loss or injury “arising from the use of school property or a school facility made available for public recreational activity,” with two savings clauses, one of which provides that nothing in the subdivision “reduces any existing duty owed by the school district.”
• Parity with the state statute, subd. 15. Immunity for “[a]ny claim against a municipality, if the same claim would be excluded under section 3.736, if brought against the state.” This one is easy to skip and it imports the whole state list.

Minn. Stat. § 3.736, subd. 3 sets out the parallel list for the state, running from paragraph (a) through paragraph (r) and covering, among other things, due-care execution of a statute or rule, discretionary duty, snow and ice on a highway or public sidewalk on the same abutting-building terms, wild animals in their natural state, unimproved state land, the outdoor recreation system, licensing standards, care at a state hospital or corrections facility, and losses incurred by a visitor to the Minnesota Zoological Garden. The subdivision opens with a phrase worth noticing — the list is “[w]ithout intent to preclude the courts from finding additional cases where the state and its employees should not, in equity and good conscience, pay compensation” — and closes with a flat sentence: “The state will not pay punitive damages.”

Discretionary immunity is narrower than the word

The exception that swallows the most claims is the discretionary-function exception, and Nusbaum is the case that fixed its limits. The state had placed an “END 45 MILE SPEED” sign about a thousand feet before a sharp curve, and argued that signing decisions are discretionary. The trial court and the court of appeals both agreed. The supreme court reversed on that point.

The historical test was a distinction between planning-level and operational-level conduct, which Nusbaum described at 719: “this court has drawn a distinction between conduct at a planning level (protected) and conduct at an operational level (unprotected).” But the court then declined to let the labels decide anything, holding at 722 (citations omitted):

The critical inquiry that emerges from our prior decisions, as well as the decisions of other state and federal courts discussed above, is whether the challenged governmental conduct involved a balancing of policy objectives. Not all acts involving the exercise of judgment by agents of the government are protected as discretionary functions. The protection afforded by the discretionary function exception does not extend to professional or scientific judgment where such judgment does not involve a balancing of policy objectives. Instead, government conduct is protected only where the state produces evidence that the conduct was of a policy-making nature involving social, political, or economical considerations.

And, on the same page, what the planning-operational labels are actually for:

Analysis of the challenged conduct under the planning-operational distinction can assist in determining whether the conduct is protected by the discretionary function exception. Ordinarily, conduct at the planning level involves policy considerations and is, therefore, protected. However, on the operational level, conduct is less likely to involve policy-making decisions and will not ordinarily be protected. Nevertheless, the distinction should not be used in a conclusory manner. Rather, it should be used as a tool for focusing attention on the central inquiry of whether the challenged government conduct involved a balancing of policy objectives.

Applying that, the court held the signing decision unprotected because the record showed a professional judgment about safe speed rather than a policy choice: “Conclusory labeling of the signing decision as ‘planning’ is insufficient.” Nusbaum adds two structural points. In footnote 6 it places the burden of proof: the burden is on the state to prove that it is immune under the discretionary function exception, though where the conduct facially involves a balancing of policy objectives the government may not need to produce evidence of how the decision was made. And in a later footnote it cautions that the holding is not that signing is never discretionary — “each signing decision must be analyzed independently.”

Official immunity is a different doctrine with a different subject

Discretionary immunity under § 466.03, subd. 6 and § 3.736, subd. 3(b) protects the governmental unit. Official immunity is a common-law doctrine that protects the individual employee, and Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988), decided within weeks of Nusbaum, says the two must not be run together (citations omitted):

Both doctrines are phrased in terms of whether discretion was involved, but they are based on entirely different rationales. Governmental immunity rests on the need to protect policymaking activities that involve a balancing of social, political or economic considerations. Official immunity, on the other hand, protects public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties. Discretion, therefore, has a broader meaning in the context of official immunity.

The standard itself, at 677, is drawn from Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976): “a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.” The counterpart category is the ministerial duty, and Elwood quotes Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937), for the test: an official duty is ministerial “when it is absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.”

The exception has teeth of its own. At 679 (citation omitted): “Discretionary conduct is clearly not protected if the official committed a willful or malicious wrong. The doctrine protects honest law enforcement efforts, and is not intended to shield police brutality.”

The caps, and what they include

Minn. Stat. § 466.04, subd. 1(a) limits liability of any municipality on any claim within the scope of §§ 466.01 to 466.15 by a schedule tied to when the claim arose. For claims arising on or after July 1, 2009, clause (3) sets a limit of $500,000 when the claim is one for death by wrongful act or omission and the same figure to any one claimant in any other case, and clause (7) sets $1,500,000 for any number of claims arising out of a single occurrence. Clause (8) doubles those limits where the claim arises out of the release or threatened release of a hazardous substance, and clause (9) sets $1,000,000 for a single occurrence where the claim involves a nonprofit organization engaged in or administering outdoor recreational activities funded in whole or in part by a municipality or operating under a municipal permit. Minn. Stat. § 3.736, subd. 4 sets the same two headline figures for the state on the same date, at paragraphs (c) and (g).

Paragraph (b) of § 466.04, subd. 1 is one sentence: “No award for damages on any such claim shall include punitive damages.” The state’s version is the closing line of § 3.736, subd. 3.

Three further provisions of § 466.04 close the obvious workarounds. Subdivision 1a applies the same limits to an officer or employee sued individually, unless the officer or employee provides professional services and is also employed in that profession for compensation by someone other than the municipality. Subdivision 1b provides that the total liability of the municipality and its officers and employees arising out of a single occurrence cannot exceed the subdivision 1 limits. And subdivision 2 provides that the limitation on individual claimants “includes damages claimed for loss of services or loss of support arising out of the same tort” — which means a derivative claim shares the individual cap rather than adding to it. Subdivision 3 supplies a district court apportionment procedure where the total for multiple claimants exceeds the per-occurrence figure, allocating each claimant a proportionate share.

Indemnification runs the other way

Minn. Stat. § 466.07, subd. 1 requires a municipality or municipal instrumentality to defend and indemnify its officers and employees, elective or appointive, “for damages, including punitive damages, claimed or levied against the officer or employee,” provided the officer or employee was acting in the performance of the duties of the position and “was not guilty of malfeasance in office, willful neglect of duty, or bad faith.” That duty is expressly “[s]ubject to the limitations in section 466.04.”

The state’s provision, Minn. Stat. § 3.736, subd. 9, is broader on its face. It requires the state to defend, save harmless, and indemnify a state employee for expenses, attorneys’ fees, judgments, fines, and settlements “arising out of an alleged act or omission occurring during the period of employment if the employee provides complete disclosure and cooperation in the defense of the claim or demand and if the employee was acting within the scope of employment,” and it says so “regardless of whether the limitations on liability specified in subdivision 4 or 4a are, for any reason, found to be inapplicable.” It does not apply “in case of malfeasance in office or willful or wanton actions or neglect of duty.” An appointing authority’s certificate that an employee acted within the scope of employment creates a conclusive presumption for non-elected employees, subject to being overruled by the attorney general.

Who is the government

Two definitions decide which statute a claim runs under, and they are drafted to fit together.

Minn. Stat. § 466.01, subd. 1 defines “municipality” for §§ 466.01 to 466.15 as “any city, whether organized under home rule charter or otherwise, any county, town, public authority, public corporation, nonprofit firefighting corporation that has associated with it a relief association as defined in section 424A.001, subdivision 4, special district, school district, however organized,” plus county agricultural societies, joint powers boards and organizations created under § 471.59 or other statute, public libraries and regional and multicounty library systems, certain approved local collaboratives, “other political subdivision, community action agency, or a limited partnership in which a community action agency is the sole general partner.” Subdivision 6 defines “employee,” “officer,” and “agent” to reach a present or former employee or “other person acting on behalf of the municipality in an official capacity, temporarily or permanently, with or without compensation,” but to exclude independent contractors other than the qualifying nonprofit firefighting corporations.

Minn. Stat. § 3.732, subd. 1(1) defines “state” for that section and § 3.736 to include the departments, boards, agencies, commissions, courts, and officers of all three branches, and names a list that includes the University of Minnesota and the Minnesota State Colleges and Universities. It then draws the boundary: “It does not include a city, town, county, school district, or other local governmental body corporate and politic.” Clause (3) defines “scope of office or employment” to mean “that the employee was acting on behalf of the state in the performance of duties or tasks lawfully assigned by competent authority.”

One currency note on that section. The Revisor’s posted text of § 3.732 carries a banner recording that subdivision 1 has been amended by Laws 2026, ch. 127, art. 1, § 1. The amendment strikes references to the Health Technology Advisory Committee from clauses (1) and (2). It does not change the boundary sentence quoted above or the definition of scope of office or employment.

The notice, in brief

The notice provisions are set out in the deadlines guide alongside Minnesota’s other injury clocks. Three features of them are worth repeating here because they are structural rather than calendrical.

The notice goes to a specific recipient. Under § 466.05, subd. 1 it is presented “to the governing body of the municipality” — not to the department involved, and not to the insurer. Under § 3.736, subd. 5 it is presented to the attorney general, or in the case of a claim against the University of Minnesota to the person the regents designate as university attorney, and also to “any state employee from whom the claimant will seek compensation.”

Both sections then soften the requirement in the same three ways. Actual notice of sufficient facts reasonably putting the governing body or its insurer — or the state or its insurer — on notice of a possible claim is construed to comply. Failure to state the amount demanded does not invalidate the notice, though full information must follow within 15 days after demand. And the running time “does not include the time, during which the person injured is incapacitated by the injury from giving the notice.”

And both sections cover more people than a plaintiff. Section 466.05, subd. 1 applies to “every person, whether plaintiff, defendant or third-party plaintiff or defendant, who claims damages” from a municipality; § 3.736, subd. 5 reaches the same class of people but says “compensation” rather than damages. Either way a defendant seeking contribution from a public body is inside the notice requirement too.

Finally, § 3.736, subd. 11 disposes of a question the notice provision can obscure: “The statute of limitations for all tort claims brought against the state is as provided in chapter 541 and other laws.” The notice period is not a limitation period. It is an additional requirement that expires first.

What this page is not

It describes the structure Minnesota uses for tort claims against public bodies: the statutory grant of liability, the enumerated exceptions, the two immunity doctrines that share the word “discretionary,” the caps, and the notice mechanics. It does not evaluate whether any particular decision was policy-based, whether any particular defendant is a municipality or the state, whether any particular notice was sufficient, or whether any deadline in any particular matter has passed. Those questions turn on facts and documents that are not on this page.