(dissenting).
I respectfully dissent from all issues decided by the majority except those of damages and pre-verdict interest.
The majority states that in order to recover against the City, Chabot need only show “the system was inadequate, that Sauk Rapids had notice of the inadequacy, and that it failed to correct the inadequacy that caused the damage.” With these words the court endorses for the first time in Minnesota law a rule that a municipality is an insurer of the needs of one individual at the expense of the needs of all other citizens of the City. The authorized discretion of the governing council of Sauk Rapids to determine and implement needed capital improvements has been usurped by the court.
The record reflects that spending monies for storm sewer improvements was met with considerable public resistance at previous public hearings. A former City engineer testified that he and the City Council would have been lynched if it had approved an expenditure for a major improvement to the drainage system. This attitude observed by public officials only underscores the nature and importance of the decisions involved in approving capital improvements. Such decisions involve the highest degree of planning in City government. They are legislative or quasi-judicial in nature and those making them have always been immune from liability under Article III, Section 1 of the Minnesota Constitution, which divides the power of government into three distinct branches and prohibits .a person belonging to one branch from exercising the power of another branch.
The Minnesota Supreme Court stated in Cairl v. State, 323 N.W.2d 20 (Minn.1982), that the discretionary act “exemption from tort liability recognizes that the courts, through the vehicle of a negligence action, are not an appropriate forum to review and second guess the acts of government which involve the exercise of discretion.” Id. at 23.
Second guessing, however, is exactly what the majority opinion permits the trial court and jury to do. The facts here are simple. Sauk Rapids had several problem areas with respect to storm water ponding and runoff, as well as a need for future planning. A 1981 report by the BARR Engineering firm set forth design criteria for improving eight areas of the City. A ninth area which had had the most problems since 1950 was not included in the report. There is no indication that the City was ever in a financial position to implement the report in its entirety. Sauk Rapids planned to use the report for future incremental implementation. But the decisions of whether storm sewers had priority over other City needs; which of at least nine areas should have priority; how funding was to be obtained; the timing of the improvements; as well as public hearings inherent in the decisionmaking-funding-as-sessment process, had not been accomplished by the “ten year rain” which fell June 25-26, 1983.
The majority seeks to differentiate between the decision to plan and install a storm sewer, which it acknowledges as discretionary, and the decision not to remedy *379the problem of the holding pond after the City had notice it was inadequate, which the majority views as an operational decision. Page 2 of the BARR report states:
The design criteria for this drainage plan were carefully selected because of the cost of providing complete drainage facilities represents a substantial expenditure and the replacement of inadequate facilities represents an even greater cost.
(Emphasis added.)
All of the considerations set forth above for making decisions on capital improvements apply to making decisions to remedy antiquated systems. The decisions cannot be differentiated. They are not operational, they are discretionary.
Even if they could, however, and even if inadequacy is the equivalent of negligence, there is still no duty owed Chabot. The City did not plan or install the pond. The pond resulted from a road built at some unknown time in the past, which dammed water into a natural basin. It had operated over 60 years without incident. Unlike all cases cited by the majority, the only notice the City had was that on some occasions over a 10 year period the pond rose to the level of the road which separated it from Chabot’s house. Here, the City had notice of the inadequacies of several storm water areas in Sauk Rapids, potentially affecting many citizens, while Chabot’s house was the only one affected by the pond.
In the case which partially abolished sovereign immunity, Spanel v. Mounds View School District, 264 Minn. 279, 118 N.W.2d 795 (1962), the Supreme Court recognized the unique nature of legislative decisions.
However, we do not suggest that discretionary as distinguished from ministerial activities, or judicial, quasi-judicial, legislative or quasi-legislative functions may not continue to have the benefit of the rute.
264 Minn. at 292-93, 118 N.W.2d at 803 (footnotes omitted).
We can say of the facts here what the Supreme Court said in Cairl v. State, 323 N.W.2d 20 (Minn.1982).
In short, regardless of the precise scope of discretionary immunity, defendants in this case did not approach the point at which discretion is exhausted and a duty arises.
Id. at 24.
Minn.Stat. §§ 466.02—.15 does not create a tort where none existed before, but simply removes the defense of sovereign immunity where a municipality would have been liable in tort but for the sovereign immunity doctrine.
The purchase of liability insurance by the City only waives the defense of immunity. It does not create liability in tort where none existed by statute or at common law.
Minn.Stat. § 466.06 (1983) states:
The governing body of any municipality may procure insurance against liability of the municipality * * * for damages resulting from its torts * * * including torts specified in section § ⅛66.03 for which the municipality is immune from liability * * *. The procurement of such insurance constitutes a waiver of governmental immunity to the extent of the liability stated in the policy but has no effect on the liability of the municipality beyond coverage so provided.
(Emphasis added.)
The statute does not create tort liability. Andrade v. Ellefson, 391 N.W.2d 836 (Minn.1986), found a tort duty of care on behalf of a county to children in day care and their parents. Even though the County had statutory governmental immunity for its role in state licensure of day care facilities, the immunity was waived to the extent of the county’s liability insurance because the county owed a tort duty of care. Id. at 837.
If there were some special duty of care owed Chabot, different from the duty owed the general public, for which tort liability could be imposed on the City, then the City would lose its immunity to the extent of the liability insurance. Here, there is no special duty under the four factors of Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn.1979):
1) actual knowledge by the city of the dangerous condition
2) reasonable reliance on specific representations of the municipality
*3803) a statutory duty for municipal protection of a particular class
4) municipal action which increases the risk of harm.
Andrade, 391 N.W.2d at 841. As Andrade points out, actual knowledge of a dangerous condition tends to impose a special duty to do something about that condition. Actual, not constructive, knowledge is required. Andrade (citing Hage v. Stade, 304 N.W.2d 283 at 288 n. 2 (Minn.1981). As in Andrade, here the City had knowledge of “warning flags,” i.e., warnings dating back to the 1970’s that the pond was inadequate, but it had not overflowed in 60 years. Factors two and three are inapplicable. Factor four could only be applied to granting building permits which facilitated development and therefore additional runoff. I think this factor is weak at best because municipalities cannot arbitrarily deny permits to use land.
Chabot’s house was built across the street from the holding pond in an area which was a natural surface water depository from the hills above to the river below his land. In an attempt to avoid the natural consequences of runoff, the house had 8 inch drainage pipes running through the yard, a concrete spillway across the property approximately 40 feet long and 3 feet wide, and tiles or grooves and a sump pump in the basement. The rainfall on June 25, 1983 was, from the testimony of many witnesses, unique. It was necessary to pump basements all over town, indicating that the drainage capacity of the City’s several holding ponds was widely exceeded.
No special duty has been shown to exist from Sauk Rapids to Chabot. No negligence has been shown by the fact that the pond was inadequate or in maintaining this natural watershed. In addition, there is absolutely no proof that Chabot’s house would not have been damaged by the flooding of June 25-26, even if the BARR report had been implemented.
The judgment should be reversed.