concurring.
I concur in the result only. I write separately to explain why I believe the majority opinion unnecessarily invokes the discretionary-function exception for municipal tort liability. I join in affirming because there was no showing of any negligence by the City.
Since Kitto v. Minot Park Dist., 224 N.W.2d 795 (N.D.1974), each political subdivision continues to be liable for its negligent conduct, and for the negligent conduct of an employee acting within the scope of employment, “under circumstances where the political subdivision, if a private person, would be liable to the claimant.” NDCC 32-12.1-03(1). There are some exceptions however, to municipal tort liability. For one, a municipality is not hable for a tort claim based upon a discretionary function. NDCC 32-12.1-03(3). As Kitto explained, 224 N.W.2d at 804, the tort liability of a municipality does “not contemplate that the essential acts of governmental decision-making be the subject of judicial second-guessing or harassment by the actual or potential threat of litigation.”
This discretionary-function exception respects the constitutional separation of powers by preventing judicial interference with poli-cymaking of the executive and legislative branches, even at the local level. See generally W. Page Keeton, Prosser & Keeton on the Law of Torts § 131, at 1039 (5th ed. 1984). As the Minnesota Supreme Court well explained in Holmquist v. State, 425 N.W.2d 230, 231-32 (Minn.1988), the discretionary-function exception applies to governmental decisions choosing between competing public policy considerations.
This case is not about governmental planning or policymaking. Nor should we confuse it with operational phases of a governmental regulatory program that would be an essential act of governmental decisionmak-ing. See United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). Rather, this case is about the physical operation of a water system. Historically,
distribution of water to its inhabitants is a function undertaken by a municipality in its private or proprietary capacity, and in the exercise of such a function a municipality is subject to the same liabilities as govern a private individual or corporation *670in like circumstances. Also, the standard of care is the same as that exacted from a private company. A municipality in maintaining a water supply system is chargeable with a duty to construct and maintain its water reservoirs with reasonable care....
A municipal corporation engaged in the business of supplying water to its inhabitants is liable for injuries resulting from negligence on its part in laying its water pipes in the public streets;.... It is, in short, liable to all persons injured by the negligent construction, management, and operation of the waterworks. However, a municipality is not an insurer of the safety of its waterworks or against injuries resulting from its operation of a water supply system, and may not be held hable therefor unless the injuries complained of are proximately caused by the negligence of itself or its employees.
78 Am.Jur.2d Waterworks and Water Companies § 60 (1975) (footnotes omitted). If every city decision about the physical operation of its water system becomes a discretionary function, the exception will swallow the general rule of tort liability equivalent to that of a private person.
Like the physical operation of an electric system, the physical operation of a water system is not a discretionary function that shelters a governmental body from tort liability. See Aslakson v. United States, 790 F.2d 688, 693 (8th Cir.1986) (“As a general rule, operational mismanagement in the maintenance of electrical transmission lines does not fall within the scope of the discretionary function exception.”). We should analyze this case under normal negligence doctrine.
A single prior break in an underground waterline does not evidence unreasonable operation, because there can be many reasons for the break, apart from negligent conduct. Here, there was no evidence from the Olsons that the City acted unreasonably in maintaining and operating its waterlines. There is no evidence that a reasonable operator would have replaced the water main or taken it out of service. I agree with that small part of the majority opinion that says “the record indicates no normal maintenance procedure would have prevented the water main [break] that damaged the Olsons’ property....” Therefore, I agree summary judgment was proper.