This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-95-2477

Latell Chaney,

Respondent,

vs.

Metropolitan Council (Transit Operations), et al.,

Appellants.

Filed January 14, 1997

Reversed

Huspeni, Judge

Hennepin County District Court

File No. PI956833

Steven L. Theesfeld, 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, Bennett, Brown, Ingvaldson, Coaty & McNeil, P.A., 8500 Normandale Lake Blvd., Suite 1640, Minneapolis, MN 55437 (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

On remand of this case from the Minnesota Supreme Court for reconsideration in light of Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406 (Minn. 1996), we find that the Metropolitan Council (Transit Operations) (MCTO) is protected by statutory immunity both from claims of negligence in its training of its drivers and from claims of a driver's negligence in permitting certain passengers to board a bus, and we reverse the district court's denial of summary judgment.

FACTS

Respondent Latell Chaney, a passenger on a bus owned by appellant MCTO and driven by appellant Robert Maestas, was injured by other passengers who boarded the bus after Chaney.[1] Chaney brought this action against Maestas and the MCTO. The MCTO moved for summary judgment on the grounds of statutory immunity. That motion was denied, and this court affirmed the denial by unpublished opinion. Chaney v. Metropolitan Council (Transit Operations), No. C9-95-2477 (Minn. App. June 4, 1996). The MCTO petitioned for review by the Minnesota Supreme Court.

The Minnesota Supreme Court remanded Chaney to this court for consideration in light of the Watson decision, holding that statutory immunity protected the MCTO's decision not to have security personnel ride buses and its decisions relative to training drivers.[2] Watson, 553 N.W.2d at 407.

We consider, therefore, whether statutory immunity protects the MCTO in regard to its training of Maestas and in regard to Maestas's permitting Chaney's assailants to board the bus.

D E C I S I O N

A determination of whether statutory 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).

1. The training of Maestas

Watson involved a claim that the MCTO was negligent in failing to adequately train a bus driver. 553 N.W.2d at 409.

The MTC's policy with regard to the training of its drivers also requires the balancing of financial, economic and social considerations. In an analogous case, the court of appeals considered a challenge to the City of Brainerd's training of a police officer who shot and killed a suspect. Maras v. City of Brainerd, 502 N.W.2d 69 (Minn. App. 1993). The court of appeals held that the training a city provides to its police officers is a policy decision because the city must decide what kinds of training the officers need and must take into account the resources available to the city to pay for such training. Id. at 78. Similarly, in providing training for its bus drivers, the MTC must balance the needs of the drivers, the MTC, and its passengers, and must take into account the resources available to pay for such training. Here also, the MTC's decisions with regard to the training of its drivers constitute planning level conduct, protected by statutory immunity.

Id. at 413. Like the plaintiffs in Watson and Maras, respondent alleges deficiencies in training.

We are unpersuaded by respondent's attempt to distinguish Watson and Maras as involving allegations of "inadequate" training while respondent is alleging "inaccurate" training. Maras says nothing about either the amount or the type of training police officers received. Watson comments on both the amount and the type of training: the driver "received about two weeks of classroom training," 553 N.W.2d at 410, the driver "was instructed to remain in his seat if an altercation developed and to call in immediately on the radio to the MTC's radio control center to get help," id., and "[t]he MTC provides training to its bus drivers on how to deal with difficult people." Id. at 412. Nothing in either Maras or Watson supports respondent's distinction or indicates that only the quantity of the training was challenged in those cases.

Moreover, Watson notes that in challenging the driver's training, Watson was not challenging an "unprotected policy implementation" but rather that his challenges "amount to an attack upon the [training] policies themselves." Id. at 414. The court held that "statutory immunity bars suit on * * * allegations [that] challenge the MTC's decisions regarding * * * the training of its drivers." Id. We see no basis for applying this holding to decisions on the amount of training bus drivers receive, but not to decisions on the type or quality of training they receive. The MCTO's training of Maestas is protected by statutory immunity.

2. The driver's action

Respondent argues that Maestas's action in permitting respondent's assailants to board the bus is not protected by statutory immunity. Because Maestas was acting in accord with section 237 of the Drivers' Pocket Guide, stating that "[c]ustomers may not be passed up unless there are two buses running together and both are destined for the same terminal[,]" respondent claims that Maestas's action was merely an implementation of established policy.

[T]his court has drawn a distinction between "planning level" conduct, which is protected by immunity, and "operational level" conduct, which is not protected.

Watson, 553 N.W.2d at 412 (citation omitted). However,

[t]he distinction between "making" and "implementing" policy is not so simple as plaintiffs would have it. Until people carry out a governmental policy, by doing or not doing something, the policy is a dead letter. Discretionary function immunity [i.e. statutory immunity] would afford little comfort if it did not extend to some of the consequences of the policy itself. Whether certain consequences are immune depends, as we have noted, on whether the consequential conduct itself involves the balancing of public policy consideration in the formulation of policy.

Id. at 413 (quoting Pletan v. Gaines, 494 N.W.2d 38, 44 (Minn. 1992)). Pletan involved the death of a child who was struck by a car while waiting to board a school bus. Pletan, 494 N.W.2d at 39-40. Plaintiffs claimed that the school district was responsible for seeing that students boarded the right buses and that this was an operational-level implementation of an established policy. Id. at 44.

The Pletan court noted that the plaintiff disagreed with the school district's policy determination that boarding the correct bus is the student's responsibility and therefore the plaintiff was attempting to have the court re-examine the school district's policy considerations. Pletan, 494 N.W.2d at 44. The court held that statutory immunity protects the school district from such reassessments. Id.

In the present case, Watson does not challenge MTC actions that are unprotected policy implementation; but, as in Pletan, Watson's challenges amount to an attack upon the policies themselves.

Watson, 553 N.W.2d at 414. Respondent, like Watson, is challenging the policy of requiring drivers to pick up every passenger, not the implementation of that policy.

The crucial question, as always, is whether the conduct involves the balancing of public policy considerations in the formulation of policy.

Id. at 413 (quotation and citation omitted). Drivers' decisions on admitting passengers require balancing the safety of those on the bus with the right to transportation of those waiting to board, and, in the case of intoxicated persons, with the societal goal of ensuring that transportation is available to those whose blood alcohol count is such that they should not drive. Respondent's view that the safety of those already on the bus supersedes every other policy is counter to the view of the MCTO, just as the Pletan plaintiffs' view that the school was responsible for getting students onto the buses was counter to the school district's view that getting on the bus was the students' responsibility. In both cases, the challenge is to the policy.

Statutory immunity exists to prevent the courts from conducting an after-the-fact review which second guesses "certain policy-making activities that are legislative or executive in nature."

Watson, 553 N.W.2d at 412 (citations and quotations omitted). The MCTO must be granted immunity for Maestas's permitting the men who assaulted respondent to board the bus: the decision to require drivers to pick up all passengers was a policy-making activity.

Respondent also attempts to distinguish Watson on two additional grounds, arguing first that Maestas's act was significantly different from the acts of the bus driver in Watson, and second that Maestas did not seek official immunity, while the bus driver in Watson did. Neither distinction is persuasive.

The driver in Watson was alleged to have been

negligent in not using the intercom system to warn the passengers to stop fighting or to warn that he would call the police, and * * * in failing to pull over to the side of the road and to stop the bus when he learned that the fight had begun.

Id. at 414. The acts of the bus driver in Watson were protected by official immunity because "the situation in which passengers were being assaulted * * * called for the exercise of judgment and discretion." Id. at 415. Respondent argues that the driver in Watson, although he mishandled the crisis, was thinking about the goal of passenger safety, while Maestas precipitated a crisis by permitting respondent's assailants to board the bus and had no public policy goal in mind. Permitting anyone waiting for a bus to board that bus, however, has itself been a public policy goal, set forth in Minn. Stat. § 473.371, subd. 2(a) (1994): "to provide, to the greatest feasible extent, a basic level of mobility for all people in the metropolitan area." Respondent is correct in observing that preserving the safety of those already on the bus is a public policy goal, but it was not the only goal involved here. Maestas, like the driver in Watson, had to exercise judgment and discretion during a crisis. The MCTO is equally entitled to immunity for his acts.

Respondent correctly observes that Watson differs from this case because the bus driver in Watson asserted the defense of official immunity. We see this as a difference but not a distinction. In Watson, after concluding that the driver was protected by official immunity, the court observed that

it would be anomalous under the circumstances of this case to impose liability on the MTC [now the MCTO] for the very same acts for which [the driver] receives immunity. Therefore, because [the driver's] decisions * * * are protected by official immunity, the MTC is also [statutorily] immune from suit for the effect of his decisions.

Id. at 415 (citation omitted). Watson established first the driver's official immunity for his acts, then the MTC's statutory immunity. Id. Here Maestas's official immunity is not at issue and the MCTO seeks to establish only its own statutory immunity. The fact that Watson addresses an additional related issue is no basis for distinguishing it in regard to the issue both cases address.

In light of Watson, the MCTO is statutorily immune both for its training of Maestas and for Maestas's act in permitting respondent's assailants to board the bus.

Reversed.

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

[ ]1Appellant MCTO was previously known as the Metropolitan Transit Commission, or MTC. Appellant Robert Maestas has taken no part in this appeal.

[ ]2The supreme court had not yet released Watson when this court released Chaney.