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• • • These factors are often present in policies (i.e., snow plowing, sidewalk, sewer inspection or maintenance), city council or planning minutes, memorandums, contracts that the city has in its records. Use model policies available from LMCIT for your client cities. Warning: Self - serving conclusory affidavits from city employees have been rejected by the Minnesota appellate courts. See Conlin v. City of St. Paul, 1999 WL 2096045 (Minn. App. 1999). 1) Implementation of Policy/Plan Generally, the actual implementation of the policy /plan may be deemed "operational" and may not be protected by immunity. However, if the claim involves an "attack" upon the policy /plan itself, the Minnesota appellate courts have refused to separate or set forth a "bright line rule" and have afforded statutory immunity for the enactment as well as the implementation of the policy /plan. See Zank v. Larson, 552 N.W.2d 719 (Minn. 1996). c. Park and Recreational Use Immunity (Subd. 6e) 1) Use of the property: If the property is owned or leased by city and is intended or designated for use as a "recreational facility ", and the plaintiff is injured while using the facility, the actual use by plaintiff is irrelevant. 2) Examples: • Stiele v. City of Crystal, 646 N.W.2d 251 (Minn. App. 2002). (young child climbing tennis fence in park who fell and was injured). • Doyle v. City of Roseville, 524 N.W.2d 461 (Minn. 1994) (plaintiff slipped and fell while walking in parking lot of public ice rink). • Habeck v. Quverson, 699 N.W.2d 907 (Minn. App. 2003) (plaintiff injured while being transported by a hay wagon from parking lot to fairgrounds). • Hinnenkamp v. City of Columbia Heights, 2002 WL 233824 (Minn. App. 2002) (plaintiff injured when coffee pot in community center tipped over). 3) City is immune unless the plaintiff can meet trespasser standard of care set forth in Restatement of Torts 2d §335. Only in rare circumstances will child trespass standard set forth in §339 be used. 4) Requirements of Trespassers Standard of Care: The plaintiff must meet all requirements in order to survive the immunity • Must be a condition created or maintained by city. • Condition must be likely to cause death or serious bodily harm (i.e., high voltage lines, razor wire, bodies of water, excavations.) • City must have actual notice that condition likely to cause death or serious bodily harm (i.e., prior accidents, injuries, complaints) 4 26