This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-95-2477

Latell Chaney,

Respondent,

vs.

Metropolitan Council (Transit Operations), et al.,

Appellants.

Filed June 4, 1996

Affirmed

Huspeni, Judge

Hennepin County District Court

File No. PI956833

Steven L. Theesfeld, Jeffrey M. Baill, Yost & Baill, P.L.L.P., 2350 One Financial Plaza, 120 S. Sixth St., Minneapolis, MN 55402 (for Respondent)

Frederick C. Brown, Donald R. McNeil, Jr., Popham, Haik, Schnobrich & Kaufmann, Ltd., 3300 Piper Jaffray Tower, 222 S. Ninth St., Minneapolis, MN 55402 (for Appellants).

Considered and decided by Peterson, Presiding Judge, Huspeni, Judge, and Mulally, Judge.*

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Appellant [1] moved unsuccessfully for summary judgment on the grounds of discretionary immunity. Because we conclude that appellant's allegedly negligent acts were neither the establishment nor the mere implementation of policy but rather tactical decisions, we affirm the denial of summary judgment.

FACTS

Appellant Metropolitan Council (Transit Operations) (MCTO) [2] provides its drivers with a document known as the Driver's Pocket Guide that sets out MCTO policy and tells drivers how to act in various situations. Provisions relevant to this action include:

273 FAILING TO PICK UP CUSTOMERS

Customers may not be passed up unless there are two buses running together and both are destined for the same terminal. In these circumstances, the lead bus shall make the stop and the following bus may go around with extreme caution and make the next stop.

530 INCIDENTS

The handling of disturbances, crime incidents or other unusual occurrences will require special skill and good judgment on your part. While it is difficult to prescribe specific actions for all episodes of this kind, some general guidelines do apply.

533 DISTURBANCES OR CRIMINAL ACTIVITY

If individuals are disturbing the peace, you should use your best judgment in handling the situation. Unless you believe that doing so would escalate the situation, you should ask them to cease their activity. If they fail to do so, then: * * *

542 INTOXICATED PERSONS

Prevent anyone visibly intoxicated from boarding the bus whenever possible.

921 SAFETY

Always the bus operator's primary concern, safety for the operators of accessible buses takes on an added dimension as it relates to providing fixed route service to a customer with a disability. * * * When all else fails, bus drivers need to rely on common sense and their own good judgment.

Robert Maestas is an MCTO driver. On February 26, 1995, respondent Latell Chaney, who is deaf, was waiting for the bus when a group of men in a car drove past and yelled at him. Maestas then picked up Chaney and reported the incident to transit control by radio. He was instructed to continue with his route, then make a report. As the bus approached another stop, Maestas saw a group of men waiting. Chaney testified that:

I told [Maestas] not to open the door, not to open the door, because I saw they were the same five guys that I had seen, and they were the same five guys that [Maestas] had seen * * *.

When Maestas opened the bus door, the men boarded the bus and attacked Chaney with a beer bottle, injuring his right eye so severely that surgical removal of the eye was necessary.

Chaney brought an action against the MCTO and Maestas, alleging negligence in Maestas's permitting Chaney's assailants to board the bus and in the MCTO's training of Maestas. The MCTO moved for summary judgment, arguing discretionary immunity, and appeals from the denial of that motion. [3]

D E C I S I O N

The denial of a summary judgment motion based on discretionary immunity is immediately appealable. McGovern v. City of Minneapolis, 480 N.W.2d 121, 125 (Minn. App. 1992), review denied (Minn. Feb. 27, 1992). A determination of whether discretionary immunity applies is a question of law which this court reviews de novo. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989). [4]

In a case arising under facts very similar to those here, this court recently addressed a certified question:

Does the doctrine of statutory discretionary immunity apply and shield the MTC from a suit in negligence by a passenger seeking recovery of money damages for injuries sustained in an assault by another passenger?

Watson v. Metropolitan Transit Comm'n, 540 N.W.2d 94, 97 (Minn. App. 1995), review granted (Minn. Feb. 9, 1996). [5] Watson involved an action against the MCTO brought by a passenger who had been assaulted by a number of other passengers. The Watson court held that discretionary immunity did not apply because the challenged acts of the bus driver in responding to the incident were neither policymaking nor mandated implementation of policy, but rather "tactical decisions." Id. at 99.

In Watson, the dispatcher instructed police to intercept the bus "many miles and minutes away" from where the incident occurred, and the bus driver permitted a gang of 15 to board the bus, did not require additional security, ignored the victim's cries for help, and did not announce that the police had been called. Id. at 98-99. The Watson court held "[T]he MTC's decisions in implementing the security procedure did not involve the balancing of public policy considerations," id. at 99, and were therefore not immune as policymaking. Nor were they mere implementation of an established policy; the driver made "tactical decisions." Id.

Similar to the plaintiff in Watson, Chaney argues that he is not attacking the policy of the MCTO, but rather the negligent implementation of that policy. Chaney points out that sections 530 and 533 of the MCTO Driver's Pocket Guide make it clear that in handling incidents, disturbances, or criminal activity, drivers are expected to use their own judgment. [6] While section 273 gives drivers no discretion to pass up customers, section 542 mitigates this by instructing drivers not to let intoxicated persons board the bus. These provisions undercut the MCTO's argument that Maestas was merely following a mandate when he picked up Chaney's assailants.

It is true that an act mandated by a policy is immune. See Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 723 (Minn. 1988) (where state engineers directly followed a policy in not posting a sign, "a challenge to their conduct is merely a challenge to the policy" which is immune from such challenges). Maestas, however, was not performing a mandated act; he was expected to use judgment in dealing with incidents and potential criminal activity on his bus. However, that judgment was professional: it did not involve the balancing of social, economic, or political considerations. See Olson v. Ramsey County, 509 N.W.2d 368, 371 (Minn. 1993) (social worker's decision not to remove child from home was immune because it involved "profound social considerations" and was therefore policymaking, but social worker's formulation and implementation of case plan were held not immune because they were "planning at the operational level").

We believe the observations of the Watson court apply with persuasive force in this case also:

The MTC has shown no relation between these decisions and the MTC's policies about passenger and driver safety. The driver simply made operational decisions as he performed his job duties. The method in which he carried out those duties involved "tactical decisions" that did not have "larger policy implications." Discretionary immunity does not cover these operational decisions.

540 N.W.2d at 99 (citations omitted).

We are unable to distinguish this case from Watson and therefore follow that holding, notwithstanding the fact that Watson has been accepted for review by the Minnesota Supreme Court. We hold that the district court properly denied immunity from suit.

MCTO, citing Maras v. City of Brainerd, 502 N.W.2d 69 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993), argues that the training of its drivers is a matter of policy, and is therefore protected. We cannot agree. While we recognize that Maras held that discretionary immunity applied because a city must decide both what training is needed and what resources are available to pay for it, id. at 78, Chaney is not attacking the decision whether to train, but the implementation of a training policy already in effect. Chaney argues not that the MCTO failed to train Maestas but that it trained him inaccurately.

We conclude that both the driver's acts and the MCTO's training of the driver fell between policymaking acts requiring a balancing of social or economic factors and the mere mandated following of a policy. The challenged acts involved the use of professional judgment by the MCTO, which is not protected by discretionary immunity.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1]Although Robert Maestas is also listed as an appellant, he took no part in this appeal.

[2]The MCTO was previously known as the Metropolitan Transit Commission, or MTC.

[3]Appellant moved for summary judgment on three discretionary immunity issues and one breach of contract issue (an order of this court has restricted this appeal to the issue of immunity). The district court stated simply that the motion for summary judgment was denied, and appellant sought review of that denial. There is no indication that the district court denied summary judgment because fact questions precluded resolution of the immunity issues. We therefore accepted the appeal on the immunity issues, concluding that Carter v. Cole, 539 N.W.2d 241 (Minn. 1995) (holding that the denial of summary judgment in an immunity case is not appealable when the denial is based on the existence of a fact question) does not preclude this appeal.

[4]We address only the issue of statutory governmental immunity. Chaney, quoting Heroff v. Metropolitan Transit Comm'n, 373 N.W.2d 355 (Minn. App. 1985), review denied (Minn. Nov. 18, 1985), argues that the MCTO as a common carrier owed him "the highest degree of care" and "is responsible for the slightest negligence." Id. at 357 (citations omitted). Heroff, however, predated the MTC's acquisition of governmental status and is questionable as precedent inasmuch as it does not address governmental immunity.

[5]Both the certified question in Watson and the issue in this case address only statutory discretionary immunity. While this court did address official immunity in Watson, Maestas has not raised a question regarding official immunity in this case. See Watson, 540 N.W.2d at 100 (declaring that "an issue of material fact about official immunity exists over how the dispatcher made the interception point decision"). Hence, we do not address that doctrine.

[6]In this regard, MCTO employees are no different from other government employees. "[A]lmost everything a government employee does, from driving a snow plow to formulating toxic waste disposal regulations, involves the exercise of some discretion." Holmquist v. State, 425 N.W.2d 230, 231 (Minn. 1988).