Peter Richard Rickmyer v. Xenos Letoi Brooks, Marva Wagner in her individual capacity, and in ...

This opinion is nonprecedential except as provided by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
A25-0459

Peter Richard Rickmyer,
Appellant,

vs.

Xenos Letoi Brooks,
Defendant,

Marva Wagner in her individual capacity,
and in her official capacity with Metropolitan Council, et al.,
Respondents.

Filed September 2, 2025
Affirmed in part, reversed in part, and remanded
Bjorkman, Judge

Hennepin County District Court
File No. 27-CV-24-5597

Peter Richard Rickmyer, Minneapolis, Minnesota (pro se appellant)

Jason M. Hiveley, Ashley M. Ramstad, Emma M. Baker, Iverson Reuvers, Bloomington,
Minnesota (for respondents)

Considered and decided by Harris, Presiding Judge; Bjorkman, Judge; and Bratvold,

Judge.

NONPRECEDENTIAL OPINION

BJORKMAN, Judge

Appellant Peter Richard Rickmyer challenges the dismissal, for failure to state a

claim on which relief can be granted, of his negligence claims against respondents
Metropolitan Council and one of its bus drivers for personal injuries suffered during an

altercation with another passenger. Because the claims related to the bus driver’s conduct

are barred by official and vicarious official immunity, we affirm in part. But because, on

this record, Metropolitan Council has not met its burden to demonstrate statutory immunity

applies, we reverse in part, and remand.

FACTS

In July 2022, Rickmyer was riding a Metro Transit bus when he was physically

attacked by another passenger, defendant Xenos Letoi Brooks. Brooks struck and kicked

Rickmyer several times and then deployed mace against him while he was lying injured on

the floor of the bus.

As the assault occurred, the bus driver, respondent Marva Wagner, pulled off the

road and parked the bus, activated the bus’s silent alarm, repeatedly called out to dispatch

requesting that law enforcement “come now,” and opened the bus doors to allow other

passengers to exit. At several points during the altercation, Brooks stepped off the bus,

away from Rickmyer. Wagner initially had to step off the bus due to mace exposure but

later tried to prevent Brooks from assaulting Rickmyer by using the “operator barrier,” a

piece of plastic designed to separate the bus driver from passengers, and by physically

“get[ting] in between” the two men. Approximately five minutes after the silent alarm was

triggered, Metro Transit Police arrived at the scene and arrested Brooks.

Rickmyer initiated this action against Brooks and Metropolitan Council, the

government entity in charge of Metro Transit and the Metro Transit Police. See Minn. Stat.

§§ 473.371-.452 (2024). He later amended his complaint to add Wagner as a defendant.

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The amended complaint alleges that Wagner’s actions during the assault—specifically her

failure to close the bus doors—were grossly negligent and breached her ministerial duties.

And it alleges that Metropolitan Council was negligent for failing to (1) timely respond to

the silent alarm, and (2) request the assistance of local police.

Wagner and Metropolitan Council jointly moved to dismiss Rickmyer’s amended

complaint for failing to state a claim upon which relief can be granted under Minn. R. Civ.

P. 12.02(e). The district court granted the motion, reasoning that (1) Rickmyer’s claims

relating to Wagner’s conduct are barred by official immunity and vicarious official

immunity; and (2) Rickmyer’s claims related to Metropolitan Council’s own actions are

barred by statutory immunity.

Rickmyer appeals.

DECISION

A complaint is subject to dismissal if it fails “to state a claim upon which relief can

be granted.” Minn. R. Civ. P. 12.02(e). A claim is sufficient to withstand a rule 12.02(e)

motion to dismiss if “it is possible on any evidence which might be produced, consistent

with the pleader’s theory, to grant the relief demanded.” Walsh v. U.S. Bank, N.A., 851

N.W.2d 598, 603 (Minn. 2014). We review whether a complaint sets forth a legally

sufficient claim de novo, accepting the facts alleged in the complaint as true and construing

all reasonable inferences in favor of the nonmoving party. Sterry v. Minn. Dep’t of Corr.,

8 N.W.3d 224, 235 (Minn. 2024).

Rickmyer raises seven issues, which are best understood to challenge the district

court’s conclusions that (1) his claims related to Wagner’s conduct are barred by official

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and vicarious official immunity, and (2) his claims related to Metropolitan Council’s

actions are barred by statutory immunity. 1 We address each argument in turn.

I. Rickmyer’s claims related to Wagner’s conduct are barred by official
immunity and vicarious official immunity.

Common-law official immunity protects public officials “charged by law with

duties which call for the exercise of [their] judgment or discretion” from personal liability

unless the public official is “guilty of a willful or malicious wrong.” Anderson v. Anoka

Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004) (quotation omitted).

The doctrine is designed to permit government actors to “perform their duties effectively,

without fear of personal liability that might inhibit the exercise of their independent

judgment.” Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014).

Official immunity constitutes immunity from suit, not just from liability. Id. If official

immunity protects a public official, vicarious official immunity generally protects the

government employer. Schroeder v. St. Louis County, 708 N.W.2d 497, 508 (Minn. 2006).

We review the application of official immunity and vicarious official immunity de novo.

Mumm v. Mornson, 708 N.W.2d 475, 481 (Minn. 2006).

Whether official immunity applies depends on “(1) the conduct at issue; (2) whether

the conduct is discretionary or ministerial; and (3) if discretionary, whether the conduct

1
The amended complaint purports to assert claims against Wagner in both her individual
and official capacities. In granting respondents’ motion to dismiss, the district court
dismissed the individual-capacity claims because Rickmyer expressly alleged that Wagner
acted only within the scope of her employment. Rickmyer does not challenge, and we
therefore do not address, the district court’s dismissal of Rickmyer’s claims against Wagner
in her individual capacity.

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was willful or malicious.” Kariniemi v. City of Rockford, 882 N.W.2d 593, 600 (Minn.

2016) (quotation omitted). When analyzing whether an act is ministerial or discretionary,

“the focus is on the nature of the act.” Mumm, 708 N.W.2d at 490 (quotation omitted). A

ministerial act is a “simple, definite duty arising under and because of stated conditions.”

Id. (quotation omitted). In contrast, a discretionary act involves “individual professional

judgment that necessarily reflects the professional goal and factors of a situation.” Id. at

490-91 (quotation omitted).

At issue here are Wagner’s acts in response to Rickmyer’s assault, including

stopping the bus on the side of the road, activating the silent alarm and calling for

emergency aid, opening the bus doors, engaging the operator barrier, and physically

positioning herself between Rickmyer and Brooks. The district court concluded this

conduct was discretionary because Wagner was exercising “professional judgment” in

response to an “evolving” situation. Rickmyer contends that this conclusion is erroneous,

specifically challenging the district court’s reliance on Watson ex rel. Hanson v. Metro.

Transit Comm’n, 553 N.W.2d 406 (Minn. 1996). We begin our analysis by considering

that case.

As here, Watson’s claims flowed from a physical assault he sustained at the hands

of other passengers while riding a Metro Transit bus. Watson, 553 N.W.2d at 409. Watson

sued the Metro Transit Commission (MTC) 2 alleging, in part, that its bus driver was

negligent for failing to use the bus’s intercom system to attempt to disrupt the assault and

2
Metropolitan Council is the successor entity to the Metro Transit Commission. Watson,
553 N.W.2d at 412 n.2.

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for failing to pull over to the side of the road and stop the bus. Id. at 414. The MTC moved

for summary judgment, arguing that the bus driver’s actions were discretionary in nature

and therefore protected by official immunity. The district court denied the motion, and this

court affirmed. Id. at 411. Our supreme court reversed, concluding that the bus driver’s

conduct was subject to official immunity because the “volatile situation” caused by the

assault “called for the exercise of judgment and discretion” by the bus driver. Id. at 415.

Rickmyer urges us to reach a contrary conclusion in this case for two reasons. First,

he contends that Watson is distinguishable because it “did not involve a [bus] driver

allowing an assailant back onto a bus to continue an attack.” But prior caselaw need not

present factually identical circumstances to inform our analysis. And the facts in Watson

are markedly similar to the facts here; both cases involve a physical assault on a bus

perpetrated by another passenger requiring the bus driver to immediately respond in a way

that maximizes safety. Accordingly, we agree with the district court that Watson guides

our official-immunity analysis.

Second, Rickmyer argues that Wagner’s actions, specifically those related to her

“duty to secure the bus doors,” were ministerial, not discretionary. The only portion of the

amended complaint relevant to this argument states: “Defendant Wagner’s failure to follow

standard procedures (closing the doors promptly) breached her ministerial duties.” But

Rickmyer’s assertion of breach is not a factual allegation; it is a legal conclusion. We are

not bound to accept a complaint’s legal conclusions as true when determining whether the

complaint survives a motion to dismiss. Walsh, 851 N.W.2d at 603.

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 Rickmyer’s factual allegation that Wagner “fail[ed] to follow standard procedures”

in operating the bus doors also fails to state an actionable claim. The existence of a

“standard procedure” governing when a bus driver should close the bus doors does not

render Wagner’s decision to close or open the doors when faced with an ongoing

emergency ministerial. Indeed, as the Watson court explained, the decisions a bus driver

makes “in a situation where passengers [are] being assaulted [are] clearly not absolute,

certain and imperative” and cannot be construed as the “mere[] execution of a specific duty

arising from fixed and designated facts.” 553 N.W.2d at 415 (quotations omitted). Rather,

the urgent and developing nature of the ongoing assault requires a bus driver to exercise

professional judgment and discretion to best protect all passengers. Id.; see also Vassallo,

842 N.W.2d at 462 (“Official immunity typically protects the conduct of public officials

responding to emergencies on the grounds that emergency conditions offer little time for

reflection and often involve incomplete and confusing information.” (quotations omitted)).

In short, accepting Rickmyer’s factual allegations as true, we conclude that the

conduct at issue was discretionary in nature. Because Rickmyer does not allege that

Wagner acted in a willful or malicious manner, Wagner is protected by official immunity.

And because that is so, vicarious official immunity protects Metropolitan Council from suit

and liability related to Wagner’s conduct. Schroeder, 708 N.W.2d at 508.

II. Rickmyer’s claims related to Metropolitan Council’s conduct are not barred
by statutory immunity.

A government entity is generally liable for its torts, subject to certain exceptions.

Minn. Stat. § 466.02 (2024). One such exception exists for claims “based upon the

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performance or the failure to exercise or perform a discretionary function or duty, whether

or not the discretion is abused.” Minn. Stat. § 466.03, subd. 6 (2024). This statutory

immunity for discretionary functions is designed 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 (quotation omitted); see

Doe 601 by Doe 601 v. Best Acad., 17 N.W.3d 464, 476 (Minn. 2025) (stating the

discretionary-function exception to liability serves the purpose of “protecting legislative

and executive branch prerogatives in making public policy”). “The party claiming

statutory immunity has the burden of proof.” S.W. v. Spring Lake Park Sch. Dist. 16, 580

N.W.2d 19, 22 (Minn. 1998).

In determining what constitutes a discretionary function, Minnesota courts

distinguish between “planning level” and “operational level” conduct. Watson, 553

N.W.2d at 412. Planning-level conduct—which involves the evaluation of social, political,

and economic considerations—is protected by statutory immunity. Schroeder, 708

N.W.2d at 504. Such conduct requires the weighing of “safety issues, financial burdens,

and possible legal consequences.” Watson, 553 N.W.2d at 412. Operational-level

conduct—which includes the “day-to-day operations of government, the application of

scientific and technical skills, [and] the exercise of professional judgment”—is not subject

to statutory immunity. Schroeder, 708 N.W.2d at 504.

A government entity seeking to invoke statutory immunity must demonstrate that

its challenged conduct is “the type of legislative or executive branch policymaking” to

which statutory immunity applies. Doe 601, 17 N.W.3d at 478. To do so, the government

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entity generally “must produce evidence of how it made the decision for which it claims

immunity. Broad, conclusory assertions that it based its decision on economic, social,

political, and financial factors are insufficient.” Id. at 479 (quotation and citation omitted).

We review the application of statutory immunity de novo. Id. at 474.

In analyzing whether statutory immunity applies, we first identify the governmental

conduct at issue and then ascertain whether it is operational or planning in nature.

Christopherson v. City of Albert Lea, 623 N.W.2d 272, 275 (Minn. App. 2001). The first

step of the analysis—the governmental conduct at issue—is not in dispute here.

Rickmyer’s amended complaint alleges that Metropolitan Council was negligent because

it failed to (1) timely respond to the bus’s silent alarm and (2) request the assistance of

local police. But the parties disagree whether Metropolitan Council established that this

conduct is planning or operational in nature.

Watson guides this second step of our analysis. Watson argued that the MTC was

negligent because it did not have security personnel ride the bus and did not adequately

train its bus driver. Watson, 553 N.W.2d at 411. The MTC moved for summary judgment,

asserting that its actions were protected by statutory immunity. Id. at 409-10. In support

of its motion, the MTC submitted deposition testimony of its acting police chief that

described how decisions regarding placement of security personnel on buses and training

bus drivers to deal with abusive passengers are made. Id. at 412. The acting chief

explained that the department “weighs certain factors” to determine where to place officers

and how it trains drivers to “deal with difficult people.” Id. Our supreme court concluded

that the MTC’s policies regarding the use of security personnel and bus-driver training

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constitute planning-level conduct subject to statutory immunity because they require

“balancing of financial, economic and social considerations.” Id. at 413.

Metropolitan Council contends that Rickmyer’s claims against it are “almost

identical” to those raised in Watson and that the district court properly reviewed the

conduct at issue as planning-level conduct subject to statutory immunity. Rickmyer argues

that the district court “misapplied” statutory immunity. We agree with Rickmyer.

Watson was a summary-judgment case—not a case seeking dismissal under rule

12.02(e). Id. at 411. Accordingly, the court was permitted to and did consider testimony

regarding the MTC’s challenged decision-making. Id. at 412. In contrast, a rule 12.02(e)

analysis is confined to the four corners of the complaint. See Bodah v. Lakeville Motor

Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003) (stating that, when reviewing a rule

12.02(e) claim, appellate courts consider “only the facts alleged in the complaint”).

The record before us on appeal from the rule 12.02(e) dismissal contains no

evidence from which we can conclude that the conduct at issue involves the evaluation of

economic, social, or political considerations upon which statutory immunity is based.

Metropolitan Council argues only that its “response to crimes that occur on Metro Transit

buses reflects a balancing of financial, social, and economic issues concerning passenger

safety and the management of limited resources”—exactly the type of “[b]road, conclusory

assertion[]” that is inadequate under Minnesota caselaw. Doe 601, 17 N.W.3d at 479. On

this record, we conclude that Metropolitan Council has not met its burden of establishing

that the conduct at issue is planning-level conduct that is subject to statutory immunity.

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We, therefore, reverse the district court’s dismissal of Rickmyer’s claims related to

Metropolitan Council’s actions.

In sum, Rickmyer’s claims related to Wagner’s conduct are barred by official and

vicarious official immunity. But the claims related to Metropolitan Council’s conduct are

not—on this record—protected by statutory immunity. Accordingly, we affirm in part,

reverse in part, and remand.

Affirmed in part, reversed in part, and remanded.

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