Nicholas C Vezzetti, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-0898

Nicholas C Vezzetti,
Respondent,

vs.

The City of Minneapolis,
Appellant.

Filed January 21, 2025
Reversed
Harris, Judge

Hennepin County District Court
File No. 27-CV-23-13851

Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota; and

Jacob E. Jagdfeld, Johnson Becker, PLLC, St. Paul, Minnesota (for respondent)

Kristyn Anderson, Minneapolis City Attorney, Gregory P. Sautter, Chase Webber,
Assistant City Attorneys, Minneapolis, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Harris, Judge; and Halbrooks,
Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
HARRIS, Judge
In this interlocutory immunity appeal, appellant city challenges the district court’s
order denying the city’s motion to dismiss respondent’s claims for damages arising from
personal injuries suffered when he was hit by a police car while operating a motorcycle.
The city argues that the district court erred in applying the law and that it is entitled to
official immunity. Because evidence establishes that the squad vehicle’s emergency sirens
were on continuously, and because we conclude that exercising caution and due care is a
discretionary duty, we reverse.
FACTS
The following summarizes the factual allegations in the complaint served on
appellant the City of Minneapolis. When helpful to understanding the issues on appeal,
these facts also summarize documents referenced in the complaint, including the city’s
policy on emergency driving, and a police squad video.
In 2020 shortly before midnight, respondent Nicholas C Vezzetti was riding his
motorcycle on Minnehaha Parkway in South Minneapolis. Around this time, Minneapolis
Police Department (MPD) officers received an emergency call about an armed suspect and
two victims at a nearby shooting.
According to the squad vehicle’s footage, MPD officers began driving to the
location and activated the squad vehicle’s emergency lights and siren. Approximately four
minutes later—still en route to the emergency call—the officers approached a red light at
an intersection, where a black truck was passing through with two motorcycles following
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closely behind. The squad vehicle slowed down and shortly before turning left at the
intersection, the passenger officer said, “clear.” After turning left onto Minnehaha
Parkway, the black truck slowed down and pulled over to the right while both motorcycles
continued ahead. The squad vehicle’s red and blue emergency lights were still activated
and reflected off the road, grass, and nearby trees and lampposts, and the siren can be heard
in the squad vehicle’s footage.1 The squad vehicle moved toward the left-most lane to pass
the two motorcyclists. The first motorcyclist braked and pulled over to the right to let the
officers pass on the left side of the road, but Vezzetti activated his left-turn signal and
veered left into the path of the squad car, leading to the collision.
Vezzetti sued t he city in a three-count civil complaint alleging : negligence,
negligence per se, and respondeat superior/vicarious liability. In the complaint, Vezzetti
references the squad vehicle’s footage and section 7-401 of the MPD’s policy and
procedure manual.
The city filed a motion to dismiss for failure to state a claim upon which relief could
be granted under Minnesota Rule of Civil Procedure 12.02(e). The city argued that
Vezzetti’s negligence claim failed because the officers were protected by official
immunity, that Vezzetti alleged no facts suggesting that the officers acted beyond the
discretion afforded to them in emergencies, and that his negligence per se claim failed
because the officers did not violate any ordinance or statute. The city also argued that his

1 The squad vehicle’s video contains “triggers,” which indicate whether the vehicle’s
emergency lights and sirens are on or off. Here, the “lights” trigger was not illuminated,
suggesting that the officers had not activated the emergency lights. However, the video
clearly shows that the squad vehicle’s red and blue lights were on.
4
respondeat superior claim should be dismissed because the officers were protected by
official immunity, and the city by vicarious official immunity.
The district court denied the city’s motion to dismiss on all three counts. It reasoned
that in referencing the officers duty to exercise caution and due consideration for the safety
of the public, section 7-401(D)(5) used the word “shall” and, therefore, created a
ministerial duty, affording the officers no discretion regarding caution and due
consideration for public safety. The city appeals.
ANALYSIS
The city challenges the district court’s denial of its motion to dismiss after the
district court determined that MPD officers were obligated to “exercise caution” and use
lights and sirens “continuously” while responding to an emergency, and respondent
plausibly alleged that officers failed to satisfy these duties. The city argues that the district
court misapplied the law in determining that “shall” imposed a ministerial duty, and that
the officer’s conduct violated that duty.
I. The district court properly considered the city’s motion as a motion to dismiss.

Vezzetti contends that the district court should have converted the motion to dismiss
to one for summary judgment because the district court considered material—section 7-401
and the squad vehicle’s footage—that he asserts was not referenced in his complaint. He
also claims that the district court failed to consider his expert report in reviewing the city’s
motion to dismiss. As a result, Vezzetti argues that the district court either applied the
wrong standard of review or erroneously excluded favorable evidence. We are not
persuaded.
5
Appellate courts “review de novo whether a complaint sets forth a legally sufficient
claim for relief.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 606 (Minn. 2014). Appellate
courts “accept the facts alleged in the complaint as true and construe all reasonable
inferences in favor of the nonmoving party.” DeRosa v. McKenzie, 936 N.W.2d 342, 346
(Minn. 2019).
Here, we must determine whether the district court applied the correct standard
when reviewing the city’s motion to dismiss for failure to state a claim. “A claim is
sufficient to survive a motion to dismiss for failure to state a claim if it is possible on any
evidence which might be produced, consistent with the pleader’s theory, to grant the relief
demanded.” Walsh, 851 N.W.2d at 600. If, on a motion to dismiss for failure to state a
claim upon which relief can be granted, “matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56,” including by giving the parties “reasonable
opportunity to present all material made pertinent to such a motion by Rule 56.” Minn. R.
Civ. P. 12.02. On a rule 12.02 motion to dismiss, the district court may consider
“documents referenced in the complaint without converting the motion to dismiss to one
for summary judgment.” Northern States Power Co. v. Minnesota Metro. Council, 684
N.W.2d 485, 490 (Minn. 2004). The materials must be referenced in the complaint itself.
See id. at 491 (concluding it was error to consider affidavits “not referenced in or a part of
the pleading that was the subject of the motion to dismiss”).
In his complaint, Vezzetti references section 7-401 of the city’s policy on
emergency driving and the squad video. His complaint states that officers “are heard on
6
video from the squad vehicle discussing that the suspect had dropped a weapon on the
ground.” (Emphasis added.) His complaint additionally explains that:
From the squad vehicle’s dash cam video leading into the
collision, [p]laintiff and his motorcycle are clearly visible, his
headlight and taillight were clearly illuminated, and his left
turn signal was on, all of which would have been visible to [the
officers] who were traveling in their MPD squad vehicle while
approaching [p]laintiff at an unsafe speed.

Vezzetti then references section 7-401(B) in several paragraphs throughout his
complaint. Because Vezzetti clearly refers to both pieces of evidence in his complaint, the
district court did not erroneously consider them in ruling on the city’s motion to dismiss.
Vezzetti also claims that the district court was “selective” in considering which
evidence to consider on the city’s motion to dismiss. The district court was not selective.
As the city points out, Vezzetti never referenced the expert report in his complaint, nor did
he move for leave to amend the complaint. Moreover, he references the expert report for
the first time in opposition to the city’s motion to dismiss.
In sum, because the squad video and section 7-401 were both referenced in
Vezzetti’s complaint, the district court correctly considered the city’s motion as a motion
to dismiss under rule 12.02 and not a summary judgment motion under rule 56.
II. The district court misapplied the doctrine of official immunity in denying the
city’s motion to dismiss.

The city does not contest the ministerial nature of the officers’ requirement to
“continuously” maintain emergency lights and siren while emergency driving. It argues,
however, that the district court erroneously concluded that the requirement to “exercise
caution and due consideration for public safety” imposes a ministerial duty. First, we
7
examine the doctrine of official immunity and the district court’s analysis of discretionary
and ministerial duties. Then, we consider whether vicarious official immunity extends to
the city.
A. The district court erroneously concluded that the word “shall”
necessarily created a ministerial duty.

The doctrine of official immunity protects public officials “charged by law with
duties which call for the exercise of [their]judgment or discretion” from personal liability
to individuals unless there is evidence of malice or willful wrongdoing. Vassallo ex. rel.
Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014) (quotation omitted). The doctrine
also provides “immunity from suit, not just from liability.” Thompson v. City of
Minneapolis, 707 N.W.2d 669, 675 (Minn. 2006) (quotation omitted). “Official immunity
enables public employees to perform their duties effectively, without fear of personal
liability that might inhibit the exercise of their independent judgment.” Mumm v. Mornson,
708 N.W.2d 475, 490 (Minn. 2006). This is because public officials who respond to
emergencies often have “little time for reflection” and must act “on the basis of incomplete
and confusing information.” Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992).
“[A]t first step of the official immunity analysis, it is essential to identify the precise
governmental conduct at issue.” Raymond v. Pine Cnty. Sheriff’s Office, 915 N.W.2d 518,
525 (Minn. App. 2018), rev. denied (Minn. July 17, 2018) (quotation omitted). To
determine whether official immunity applies, we must first determine “the conduct at
issue,” and then “whether that conduct is discretionary or ministerial.” Vassallo, 842
N.W.2d at 462. If the conduct is discretionary, we then consider whether the official acted
8
willfully or maliciously. 2 Id. “The applicability of immunity is a legal question that we
review de novo.” Kariniemi v. City of Rockford, 882 N.W.2d 593, 599 (Minn. 2016).
To begin, the conduct at issue is the officer’s use of emergency lights and sirens in
responding to an emergency call. 3 Focusing on this specific conduct, we must determine
whether the officer’s actions were discretionary or ministerial. “A discretionary duty
involves individual professional judgment that necessarily reflects the professional goal
and factors of a situation.” Vassallo, 842 N.W.2d at 462 (quotation omitted). A ministerial
duty, on the other hand, “is one that is absolute, certain, and imperative, involving merely
the execution of a specific duty arising from fixed and designated facts.” Id. (quotations
omitted). A government policy that sufficiently narrows the standard of conduct “will
make a public employee’s conduct ministerial if he is bound to follow the policy.” Mumm,
708 N.W.2d at 491. “Whether a particular statute or policy creates a ministerial duty is
ordinarily a question of law.” Vassallo, 842 N.W.2d at 464 (citing Kelly v. City of
Minneapolis, 598 N.W.2d 657, 664 n.5 (Minn 1999)).
The relevant policy here is section 7-401(D), which states, in relevant part:
4. Ordinarily, all MPD officers shall use department
authorized red lights and sirens continuously during any
emergency driving.

5. Officers performing emergency driving shall exercise
caution and due consideration for the safety of the public.

2 Vezzetti does not allege that the city engaged in malicious or willful conduct.
3 Vezzetti asserts that the conduct at issue here is the officer “rearending an uninvolved
vehicle.” This is a consequence of the allegedly wrongful conduct by the officers.
Vezzetti’s framing would suggest that the officer consciously rearended him, undermining
the basis of his negligence claim.
9
a. The use of the red lights and siren does not
exempt officers from the need for caution nor does it
exempt them from criminal or civil liability.

(Emphases added).4
Based on this language, the district court denied the city’s motion to dismiss, stating:
The Court finds that the language in Section 7 -401(D)(5) uses
the word “shall” and therefore does not give the Officers
discretion regarding caution and due consideration for public
safety. Further, Section 7-401(D)(4) requires the Officers to
have the siren and red lights on continuously which is also not
discretionary. The squad car video provided with [the motion]
does not provide clear evidence.

Here, the district court only analyzed the word “shall” and, based on that alone,
concluded that a ministerial duty existed. Although “shall” typically creates a mandatory
duty, the official immunity analysis requires us to go a step further and evaluate the nature
of the duty that is, in this case, modified by the word “shall.” See Travis v. Collett,
17 N.W.2d 68, 71 (Minn. 1944) (concluding that the language “shall slow down as
necessary” is not an absolute duty because the words “slow down as necessary” calls for
the driver’s independent judgment under the circumstances).
In Vassallo, the supreme court held that the duty to “proceed cautiously” meant “to
go forward in the exercise of due care to avoid a collision.” 842 N.W.2d at 463. The court
concluded that this was a discretionary duty because the requirement to use due care “calls]
for the exercise of independent judgment.” Id. In contrast, an emergency vehicle’s

4 Section 7-401(D)(4a) provides exceptions to “continuously” using red lights and sirens,
such as those circumstances that warrant an “unannounced approach.” Neither party claims
this exception applies here.
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requirement to “sound its siren or display at least one lighted red light to the front before
proceeding” was a ministerial duty because it was “absolute, certain, and imperative” and
left no discretion to the individual. Id. at 463-64.
Parts 4 and 5 of section 7-401(D) each create a mandatory duty, as evidenced by the
word “shall.” Part 4 creates a ministerial duty to use lights and sirens “continuously”
during emergency driving—the city does not contest this. But we conclude that part 5
imposes a discretionary duty because exercising “caution and due consideration for public
safety” is a broad mandate that may turn on the officer’s professional judgment under the
circumstances. Even though officers should always “exercise caution and due
consideration for the public safety,” ministerial duties are specific duties that arise from
“fixed and designated facts,” and the language in subdivision 5 is not sufficiently narrow
to create a specific duty. See Wiederholdt v. City of Minneapolis, 581 N.W.2d 312, 316
(Minn. 1998) (holding that an ordinance imposed a ministerial duty on a sidewalk city
inspector to immediately repair “any sidewalk slab projecting more than one inch above
the adjacent slab”); Mumm, 708 N.W.2d at 491-92 (holding that t he policy imposed a
ministerial duty because it required officers to discontinue pursuit whenever officers could
“establish the identification of the offender so that an apprehension [could] be made at
another time,” leaving no room for independent judgment).
Here, section 7-401(D)(5)’s provision that “[o]fficers performing emergency
driving shall exercise caution and due consideration for the safety of the public” leaves
room for an officer’s independent professional judgment, which necessarily encompasses
the exercise of discretion. See Black’s Law Dictionary 630 (12th ed. 2024) (defining “due
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consideration” as “[t]he degree of attention properly paid to something, as the
circumstances merit”). In addition, the requirement to exercise caution and “due
consideration” is too broad to conclude that there is an “absolute, certain, and imperative”
ministerial duty that leaves nothing to the discretion of the official.
In sum, the district court misapplied the doctrine of official immunity because it
relied on the word “shall” to determined that a ministerial duty existed and did not
sufficiently evaluate the nature of the officer’s conduct. The officers’ duty to “exercise
caution and due consideration” is a discretionary duty. And because Vezzetti does not
allege, nor is there any evidence of, malicious or willful wrongdoing, we conclude that the
police officers in this case did not violate their discretionary duty and therefore are entitled
to official immunity. The officers’ duty to “exercise caution and due consideration” is a
discretionary duty. And the officers here did not violate that discretionary duty.
B. The Officers did not violate the ministerial duty to “continuously” use
lights and sirens.

The district court may dismiss a complaint upon a party's motion if it “fail[s] to state
a claim upon which relief can be granted.” Minn. R. Civ. P. 12.02. Dismissal under
rule 12.02(e) is proper if “it appears to a certainty that the plaintiff can introduce no facts
consistent with the complaint to support the claim for relief.” State by Smart Growth
Minneapolis v. City of Minneapolis, 954 N.W.2d 584, 596-97 (Minn. 2021) (quotation
omitted). “We review de novo whether a complaint sets forth a legally sufficient claim for
relief. We accept the facts alleged in the complaint as true and construe all reasonable
inferences in favor of the nonmoving party.” Walsh v. U.S. Bank, N.A, 851 N.W.2d 598,
12
606 (Minn. 2014) (citation omitted). “[W]hether official immunity applies turns on: (1) the
conduct at issue; (2) whether the conduct is discretionary or ministerial and, if ministerial,
whether any ministerial duties were violated; and (3) if discretionary, whether the conduct
was willful or malicious.” Vassallo, 842 N.W.2d at 462. “[T]he conduct of police officers
in responding to a dispatch or making an arrest involves precisely the type of discretionary
decisions, often split-second and on meager information, that [the supreme court] intended
to protect from judicial second-guessing through the doctrine of official immunity.” Kelly,
598 N.W.2d at 665. A motion to dismiss pursuant to rule 12.02(e) on the basis of official
immunity may be granted only if the applicability of official immunity is clearly
established by the allegations in the complaint. Walsh v. U.S. Bank, N.A., 851 N.W.2d 598,
603 (Minn.2014)
The city concedes that the officer’s duty to use emergency lights and sirens
“continuously” during emergency driving is a ministerial duty, but it argues that its officers
are still entitled to official immunity because they did not violate their ministerial duty to
maintain emergency lights and sirens. More specifically, the city argues that (1) no rational
jury could find that the siren was not on continuously; (2) the officers’ entitlement to
immunity does not extinguish the moment before the collision when the siren is allegedly
deactivated; and (3) Vezzetti does not assert that his injuries stemmed from the officers’
non-use of the siren. Vezzetti argues that the officers violated section 7-401(D)(4) because
they only used a “pulsed” or intermittent siren, and the record allegedly shows that the
siren was deactivated “before, during, and after the crash.” The district court found that
13
the squad video did “not provide clear evidence” that the officers satisfied their ministerial
duty and, therefore, could not be granted immunity.
The city presented the district court with the squad vehicle’s footage capturing the
officers driving en route to the emergency call and the collision with Vezzetti. Here, a
simple review of the squad vehicle’s footage referenced in the complaint establishes that
the officers complied with their ministerial duty of continuously using emergency lights
and sirens, as required by section 7-401(D)(4). From the beginning of the squad video,
when the officers began driving to pursue the armed suspect, the vehicle’s red and blue
lights are seen flashing (reflecting off the road, sidewalk, trees, and other cars) despite the
“lights” trigger not illuminating. The red and blue lights continue to flash, and the siren is
activated approximately 15 seconds later. The officers maintain the vehicle’s emergency
lights and siren until the moment of collision with Vezzetti. Before turning left at the
intersection, the driving officer slows down and the other officer can be heard saying,
“clear.” Approximately seven seconds later, and after turning left at the intersection onto
Minnehaha Parkway, the squad video shows the driver of the black truck pulling over to
the right, allowing the officers to pass by. Ten seconds later, Vezzetti’s companion—also
on a motorcycle— is seen pulling over to the right, also allowing the officers to pass by.
Immediately after passing the companion, Vezzetti activates his left -turn signal and veers
to the left in front of the squad car, resulting in the collision one second later. After the
collision, the squad vehicle’s red and blue lights continue to flash, which can be seen
reflecting off the surroundings. And because Vezzetti does not allege, nor is there any
14
evidence of, malicious or willful wrongdoing, we conclude that the police officers in this
case did not violate their discretionary duty and therefore are entitled to official immunity.
Based on this record, Vezzetti can introduce no facts consistent with the complaint
to support the claim that the officers here did not continuously use their lights or siren.
Vezzetti thus failed to state a claim upon which relief can be granted because the squad
vehicle’s footage clearly shows that the officers maintained the emergency lights and siren
“continuously” until the collision.
C. The city is entitled to vicarious official immunity.

The city next asserts that it is entitled to vicarious official immunity because the
police officers complied with their ministerial duty to “continuously” use emergency lights
and sirens. The district court rejected the city’s claim of vicarious official immunity
because the squad video’s “siren” checkbox was not illuminated. But because the squad
video clearly shows the vehicle’s lights and sirens are activated, we extend vicarious
official immunity to the city.
“In general, when a public official is found to be immune from suit on a particular
issue, his government employer will enjoy vicarious official immunity from a suit arising
from the employee’s conduct.” Schroeder v. St. Louis County, 708 N.W.2d 497, 508
(Minn. 2006). “Vicarious official immunity is usually applied where officials’
performance would be hindered as a result of the officials second- guessing themselves
when making decisions, in anticipation that their government employer would also sustain
liability as a result of their actions.” Id. (quotation omitted). Vicarious official immunity
is additionally applied “when the failure to grant it would focus stifling attention on an
15
official’s performance to the serious detriment of that performance.” Id. (quotations
omitted).
Whether the government is entitled to vicarious official immunity turns on whether
the public official was granted official immunity. See Vassallo, 842 N.W.2d at 465 (stating
that the issue of the employer’s vicarious official immunity “stands or falls” with whether
the employee is immune). And “[w]hile we have generally extended official immunity
vicariously to governmental entities after a government employee has been allowed official
immunity, vicarious immunity is not an automatic grant.” Sletten v. Ramsey County, 675
N.W.2d 291, 300 (Minn. 2004).
Here, the city is entitled to vicarious official immunity because the officers are
entitled to official immunity. Both officers complied with their duties to use lights and
sirens “continuously” and exercised “caution and due consideration” for the public safety
while pursuing an armed suspect. The officers slowed down at intersections when
necessary and always maintained emergency lights and siren while en route to the suspect.
In sum, because the officers are entitled to official immunity, the city is entitled to
vicarious official immunity.
Reversed.