IN COURT OF APPEALS
Suzette E. Johnson,
Kenneth D. Bohlman,
Filed February 13, 2007
Affirmed in part, reversed in part, and remanded
Concurring specially, Lansing, Judge
Blue Earth County District Court
File No. 07-C6-02-002030
Dennis Patrick Moriarty, Kevin J. Wetherille, Jaspers, Moriarty & Walburg, P.A., 206 Scott Street, Shakopee, MN 55379 (for appellant)
John M. Riedy, Jorun Groe Meierding, Maschka, Riedy & Ries, 201 North Broad Street, Suite 200, P.O. Box 7, Mankato, MN 56002-0007 (for respondent)
Eric Olson, Appelman & Olson,
Bulter North Buidling,
Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Dietzen, Judge.
S Y L L A B U S
1. A special relationship sufficient to create a duty to protect another from reasonably foreseeable third-party criminal acts exists when a parent entrusts the care of a minor child to another person who accepts the entrustment and undertakes to perform the parent’s duty to protect the child.
2. Because for criminal-liability purposes a person under the age of consent lacks the capacity to consent to underage sexual contact, assumption of risk is not an available defense in a civil action for damages arising out of such contact. Children under the age of 16 who are abused by a person 48 months older and children between the ages of 16 and 18 who are abused by a person in a position of authority are deemed to be under the age of consent.
O P I N I O N
This appeal arises out of the sexual abuse of appellant Aja Bjerke, a teenager, by defendant Kenneth Bohlman. Bohlman was the live-in boyfriend of respondent Suzette Johnson, the woman to whom Bjerke had been entrusted by her parents. Bjerke appeals from summary judgment dismissing her negligence claim against Johnson, arguing that the district court erred by concluding that Johnson did not have a duty to protect her from Bohlman’s criminal acts. Bjerke also challenges an order dismissing her negligence claim on the ground that she assumed the risk of her injuries as a matter of law and a prior order granting Johnson’s request for a bifurcated trial and denying Bjerke’s motion to amend her complaint to include a punitive-damages claim. We affirm in part, reverse in part, and remand.
In June 2002, Bohlman was charged with five counts of criminal sexual conduct, with each count covering a specific period of time. Also, appellant Aja Bjerke filed a civil suit against Johnson and Bohlman, alleging, inter alia, that between the fall of 1998 and the spring of 2001, Johnson assumed a legal duty to protect her from physical and sexual abuse; and that during that time period, when appellant was a minor, Bohlman repeatedly physically and sexually assaulted her at various locations, including at Johnson’s residence in rural Lake Crystal.
owns and operates a horse business known as Island Farm located near
1972 through 1987, Johnson was approved by the
During the relevant time period, Johnson worked full time as an attorney. Bohlman and his assistant, Andrea Pidde, operated a separate business at Island Farm providing horseback-riding lessons to the public. Johnson testified that Bohlman had heart valve surgery in August 1994, and in early 1995, she became aware that he was impotent. She testified that she had not had a sexual relationship with Bohlman since 1995 and that they began sleeping in separate bedrooms in 1999.
Bjerke met Bohlman at a horse show in 1995, and began taking horseback-riding lessons from him. On those occasions, her parents would bring her and her horse to Island Farm for the lessons. During the summer of 1997, Bjerke had her horse stabled at Island Farm so that her parents would not be required to transport the horse back and forth for each riding lesson. At that time, Johnson asked her parents if Bjerke might enjoy spending a week or so at Island Farm, as other minors had in years past. Bjerke spent about two and one-half weeks at Island Farm that summer. During the summers of 1998 and 1999, Bjerke stayed at Island Farm and received horseback-riding lessons from Bohlman and Pidde, and in the fall of each year, she returned to New Prague to reside with her parents and attend school. During the school year, she visited Island Farm on weekends and occasionally attended horse shows with Johnson, Bohlman, and Pidde. In April 2000, Bjerke began staying full time at Island Farm, where she resided until approximately October 2001.
During Bjerke’s stay at Island Farm, Johnson understood her role was to provide Bjerke with room and board. Although Bjerke did not pay for staying at Island Farm, she did perform chores, which included feeding the horses and cleaning the stalls. She also attended horse shows with Johnson, Bohlman, and Pidde, together with any other children who had horses at Island Farm.
In October 2001, Bjerke called her father and stated that she was afraid of Bohlman and that he had been physically violent with her. A few days later, Steven Bjerke contacted Johnson and made arrangements to pick up Bjerke’s belongings. While at the farm, he discovered that some of Bjerke’s personal belongings, including items of her clothing and school books, were in Bohlman’s room and confronted Johnson as to what was going on. Johnson made no oral response to the question. Additional evidence showed that Bohlman had Bjerke’s course schedule, check blanks, graduation cards, and a pair of Bjerke’s underwear in his room.
October 2004, Bohlman was convicted of three counts of criminal sexual
misconduct and acquitted of the two remaining counts. The
convictions related to conduct that
occurred before April 20, 1999, which was Bjerke’s 16th
birthday. At the criminal proceeding, Bjerke testified
that Bohlman physically and sexually abused her at Island Farm when she
years old and continued until she left the farm in October
2001. Appellant’s conviction and sentence were
affirmed by this court. State v. Bohlman,
No. A05-207 (Apr. 11,
2006), review denied (
In the civil proceeding, the district court ruled on a number of pretrial motions. Specifically, the court granted Bjerke’s motion to amend her complaint to request punitive damages against Bohlman, but denied the same motion against Johnson, denied Bjerke’s motion to strike the defense of comparative negligence, and granted Johnson’s motion for separate trials against Johnson and Bohlman. In September 2005, Johnson moved for summary judgment, arguing that there was no duty owed to Bjerke and that Bjerke voluntarily assumed the risk of her injuries. Appellant opposed the motion, arguing that Johnson owed her a legal duty to protect her from sexual abuse by Bohlman.
Following a hearing, the district court granted Johnson’s motion for summary judgment. The district court then ordered entry of a final partial judgment. This appeal followed.
1. Did the district court err by concluding as a matter of law that Johnson did not have a duty to protect Bjerke from Bohlman’s sexual abuse?
2. Did the district court err by concluding as a matter of law that Bjerke assumed the risk of her injuries?
3. Did the district court abuse its discretion by granting Johnson’s motion for a bifurcated trial and by denying Bjerke’s motion to amend her complaint to include a punitive-damages claim?
Aja Bjerke challenges the district court’s grant of summary judgment dismissing her negligence claim against respondent Suzette Johnson, arguing that genuine issues of material fact remain as to whether Johnson negligently failed to protect her from respondent Kenneth Bohlman’s physical and sexual abuse. We agree.
Summary judgment is
appropriate when “the pleadings, depositions, answers to
admissions on file, together with the affidavits, if any, show that
there is no
genuine issue of material fact and that either party is entitled to a
as a matter of law.” Fabio v. Bellomo,
504 N.W.2d 758, 761 (
Summary judgment dismissing a negligence action is
appropriate when the record lacks evidence of a duty of care, a breach
duty, an injury, or proximate causation.
Generally, a person has no duty to protect another from a
third party’s criminal acts. Delgado v.
Lohmar, 289 N.W.2d 479, 483 (
A. Special Relationship
Bjerke argues that she had a special relationship with Johnson under Restatement (Second) of Torts §§ 314A and 324A (b) (1965). We conclude that a special relationship existed under section 324A but not under section 314A.
A special relationship
exists under section 314A when a person voluntarily takes
“custody of another
person under circumstances in which that other person is deprived of
opportunities for self-protection.” Harper
v. Herman, 499 N.W.2d 472, 474 (
Johnson voluntarily took custody of Bjerke for purposes of section 314A. Bjerke’s parents placed her in Johnson’s care, and Johnson admits that she agreed to provide Bjerke with room and board and to protect her from injury. But the custodial arrangement did not deprive Bjerke of normalopportunities for self-protection. The self-protection element of the rule is directed toward individuals who are in some way unable to summon help by virtue of the custody arrangement. See Restatement (Second) of Torts § 314A illus. 6-7 (describing duty owed by jailors and teachers to inmates and small children, respectively). Bjerke, who was a teenager when the harm occurred, was not unable to summon help by virtue of the custody arrangement. Unlike a prisoner or a small child, Bjerke had the same opportunities for self-protection under Johnson’s custody as she did under her parents’ custody. She could just as easily have reported the abuse under Johnson’s custody, for example, as she could have done under her parents’ custody. A special relationship therefore did not exist under section 314A.
Section 324A imposes liability when a defendant undertakes for another, gratuitously or for consideration, to perform a duty owed by the other to a third person. Erickson, 447 N.W.2d at 170 (adopting section 324A). The extent of the duty owed under section 324A is defined by the extent of the undertaking. See id. (concluding that because security firm undertook to patrol entire ramp, the firm had a duty to all patrons); McGee v. Chalfant, 806 P.2d 980, 985 (Ka. 1991) (finding that friends who gave intoxicated motorist a ride to place where he left his automobile did not undertake to protect his safety or the safety of others).
When Bjerke’s parents entrusted her to Johnson, Johnson agreed to shelter and feed Bjerke and to protect her from the unreasonable risk of harm. By accepting the entrustment Johnson thus undertook to perform duties Bjerke’s parents otherwise owed Bjerke. See Erickson, 447 N.W.2d at 170 (holding that security firm hired by parking-ramp owner had duty to protect not only owner’s patrons but also patrons of company that leased part of ramp). Johnson thereby entered into a special relationship with Bjerke under section 324A.
The scope of the duty to
protect that a special relationship imposes is delineated by the harm
foreseeable under the circumstances. Lundgren v.
Fultz, 354 N.W.2d 25, 28 (
a third party is foreseeable only when a reasonably prudent person
anticipated that the act was likely to occur.
K.L. v. Riverside Med. Ctr.,
524 N.W.2d 300, 302 (Minn. App. 1995), review
denied (Minn. Feb. 3, 1995). The
foreseeability of a sexual assault often hinges on whether the
aware of prior similar behavior by the third party.
The record contains no evidence that Bohlman had a criminal record or that he had been involved in previous incidents of sexual abuse of which Johnson was aware. Bjerke argues, nonetheless, that Johnson should have anticipated the risk of sexual abuse based on four separate incidents.
The first incident occurred during the summer of 1997, when Bjerke was 14 years old. Johnson saw Bjerke running her fingers through Bohlman’s hair while they sat on a couch. Johnson admits that the conduct “didn’t look right” to her and caused her to keep her “eyes open.” She confronted Bohlman and asked him to talk to Bjerke about the inappropriateness of her behavior.
The second incident occurred approximately two years later, when a social worker who was a friend of Johnson’s told Johnson that Bjerke exhibited “clingy” behavior around Bohlman and seemed infatuated with him. But the social worker did not express concern that Bjerke was in danger of abuse. See Minn. Stat. § 626.556, subd. 3 (2006) (requiring certain professionals, including social workers, to report known or suspected incidents of child abuse). The third incident took place in 2000, when Johnson saw Bjerke jump on Bohlman’s lap during a horse show at Island Farm.
But absent a criminal record, or a known propensity to molest children, we conclude that these incidents would not have caused a reasonable person to conclude that Bohlman was likely to molest Bjerke, particularly when Bjerke initiated the contact and Johnson was under the impression that Bohlman had been impotent since 1995. Instead, a reasonable person could have concluded on this evidence that Bjerke’s behavior was indicative of a “school-girl-like crush.”
The final incident, however, which occurred in January 2001, when Bjerke was 17, is sufficient to raise a genuine issue of material fact as to whether the risk of sexual abuse was reasonably foreseeable. Although Johnson denies it, there is evidence in the record that in January 2001 Johnson told a neighbor that she had to leave the house because Bohlman and Bjerke “were fooling around on the couch, and it was more than what a father-daughter should be doing and it made her uncomfortable, it was too sexual and she left.”
The record does not indicate what specific conduct constituted “fooling around,” but the conduct Johnson observed was sexual and sufficiently inappropriate to make her uncomfortable and cause her to leave her own house. And when Bjerke’s father’s found some of Bjerke’s personal belongings, including a pair of underwear, in Bohlman’s bedroom, he confronted Johnson. Johnson did not respond. On this record, a jury could reasonably conclude that Bjerke and Bohlman were sharing a room and that Johnson knew or should have known about it. See Sylvester v. Northwestern Hosp. of Minneapolis, 236 Minn. 384, 53 N.W.2d 17 (1952) (stating that knowledge that patient had habit of wandering on hospital grounds while intoxicated sufficient to find hospital liable for assault of another patient, in light of “experience of mankind” that intoxication causes people to become a hazard to others).
Viewing the evidence in the light most favorable to Bjerke, we conclude that Bjerke submitted sufficient evidence to raise a genuine issue of material fact as to whether the risk of abuse was reasonably foreseeable. The totality of the circumstances in this case (including the conduct Johnson observed, the discovery of Bjerke’s personal belongings in Bohlman’s room, Bjerke’s effort to conceal the relationship, Johnson’s understanding that Bohlman was impotent, and the lack of a known history of similar incidents of abuse) would permit reasonable people to draw different conclusions about the foreseeability of the harm. Because there are viable arguments on both sides regarding whether the risk of sexual abuse was foreseeable, the foreseeability issue is not susceptible to resolution as a matter of law and must be submitted to the jury. See Laska v. Anoka County, 696 N.W.2d 133, 140 (Minn. App. 2005), review denied (Minn. Aug. 16, 2005) (concluding that foreseeability issue was not “so clear as to be susceptible to resolution as a matter of law” where both parties presented “opposing and meritorious arguments concerning whether a foreseeable risk to [an infant who died while napping on an adult bed] was objectively reasonable”).
Accordingly, we reverse the district court’s grant of summary judgment dismissing Bjerke’s negligence claim and remand.
Bjerke next argues that the district court erred by concluding that her negligence claim against Johnson was barred as a matter of law because she assumed the risk of her injuries.
Unless the evidence is
conclusive, whether a person
assumed the risk of injury is a question for the jury. Schneider
v. Erickson, 654 N.W.2d 144, 148 (
Secondary assumption of risk, by contrast, is a form of
contributory negligence that applies when a plaintiff
“voluntarily encounters a
known, appreciated risk without an attendant manifestation . . . that
consents to relieve the defendant of his duty.”
Armstrong v. Mailand, 284
N.W.2d 343, 351 (
The essential elements of primary and secondary
assumption of risk are the same—the plaintiff must have
knowledge of the risk,
must appreciate the risk, and must choose to take the risk despite
opportunity to avoid it. Schneider, 654
N.W.2d at 149. The distinguishing element between primary
and secondary assumption of risk is the plaintiff’s
manifestation of consent to
relieve the defendant of a duty he might otherwise have. Iepson
v. Noren, 308 N.W.2d 812, 815 (
a victim’s consent to criminal conduct bars recovery in a
tort action based on
such conduct. See Restatement (Second)
of Torts § 892A(1) (1965) (providing that
“[o]ne who effectively consents to conduct of another
intended to invade his
interests cannot recover in an action of tort for the conduct or for
resulting from it”). When the
legislature criminalizes conduct to protect a certain class of persons,
however, and the purpose of the legislation is to protect those persons
the conduct irrespective of their consent, consent to the conduct by a
of the protected class will not bar recovery in tort.
Restatement (Second) of Torts § 892C(2)
(1965). The required legislative purpose
to protect a particular person despite his or her consent
“will ordinarily be found
when it is apparent that the statute is intended for the protection of
of persons who, by reason of their immaturity, inexperience or lack of
judgment, are unable to protect themselves against the conduct to which
are likely to consent.”
criminal cases, consent is not a defense to a charge of sexual abuse of
under the age of 16—a crime often referred to as statutory
e.g., Minn. Stat. § 609.342, subd. 1(b)
(2006) (providing that consent
is not defense to charge of first-degree criminal sexual conduct when
between ages of 13 and 16 and perpetrator is at least 48 months older
preclusion of consent as a defense to statutory rape
“reflects the feeling of
society in general that sexual contact by adults with children under 16
reprehensible whether or not the child consents, because at that age, the
child should be deemed incapable of
consenting.” State v. Steinbrink,
297 N.W.2d 291, 293 (
majority of jurisdictions adopt the Restatement’s position
and exclude consent
as a defense in civil actions arising out of statutory rape. See,
e.g., Christensen v. Royal Sch. Dist.
No. 160, 124 P.3d 283, 286 (
A minority of jurisdictions, on the other hand, allow consent as a defense in civil actions arising out of statutory rape. See, e.g., Tate v. Bd. of Educ. of Prince George’s County, 843 A.2d 890, 901 (Md. Ct. Spec. App. 2004) (concluding that “a minor’s consent is relevant for purposes of determining civil liability”); Michelle T. by Sumpter v. Crozier, 495 N.W.2d 327, 329 (Wis. 1993) (holding that evidence of victim’s consent to inappropriate touching defeated civil-battery charge). These jurisdictions based their determination on principles of fairness, the belief that minors acquire the capacity to consent to different types of conduct at different stages in their development, the broad range of situations in which minors are deemed to be legally capable of consenting, and the difference in purpose between the civil- and criminal-justice systems. See, e.g., Doe by Roe v. Orangeburg County Sch. Dist. No. 2, 518 S.E.2d 259, 261 (S.C. 1999) (statingthat “[i]t is antithetical to principles of fair trial that one party may seek recovery from another based on evidence it selects while precluding opposing relevant evidence on grounds of prejudice” in allowing defendant to raise plaintiff’s consent at damages phase (quotation omitted)); Tate, 843 A.2d at 899(noting that “[t]here is no hard-and-fast rule as to the age at which a person attains the capacity to consent to bodily invasions” (quotation omitted)); McNamee v. A.J.W., 519 S.E.2d 298, 302 (Ga. Ct. App. 1999) (noting that “decisional and statutory law is replete with examples of situations in which a child over the age of 14 is deemed to have the mental capacity of an adult”); Cynthia M. v. Rodney E., 279 Cal. Rptr. 94, 98 (Cal. Ct. App. 1991) (stating that “to recognize the asserted right to recover would be to permit plaintiff to profit by the wrong to which she voluntarily was a party” (quotation omitted)).
The statutes are based on society’s notion that a child under the age of consent lacks the judgment, maturity, and sophistication necessary to freely agree to engage in sexual conduct with an adult. See Minn. Stat. § 609.341, subd. 4 (2006) (defining consent as “words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act” (emphasis added)); Steinbrink, 297 N.W.2d at 293; see also State v. Krotzer, 548 N.W.2d 252, 256 (Minn. 1996) (Coyne, J., dissenting) (stating that statutory rape “is based on recognition of the fact that young girls and boys lack both judgment and the understanding of the possible long-term consequences of their actions so that they are incapable of giving meaningful consent to sexual intercourse,” while disagreeing with majority on other grounds), abrogated by State v. Lee, 706 N.W.2d 491 (Minn. 2005).
In a case
instructive even though not entirely parallel, this court concluded
doctrine of absolute liability precludes affirmative defenses when the
legislature enacts a statute “to protect a limited class of
persons from their
own inexperience, lack of judgment, or inability to protect themselves
resist pressure, or tendency toward negligence.” Thelen
v. St. Cloud Hosp., 379 N.W.2d 189, 193 (Minn. App. 1985)
omitted). The Thelen court construed the
Minnesota Vulnerable Adult Act as
precluding the defenses of assumption of risk and contributory
negligence in an
action for damages resulting from failure to report the abuse of a
Here, too, the clear intent of the legislature in enacting statutes criminalizing sexual conduct with children under the age of 16, irrespective of consent, and with children between the ages of 16 and 18 who are abused by a person in a position of authority or a person with whom they have a significant relationship, was to protect children from being sexually exploited as a result of their inexperience, lack of judgment, inherent curiosity about sex, and inability to resist pressure or protect themselves. As a result of their youth and inexperience, minors are more likely to engage in sexual conduct that would be construed as assumption of risk or contributory negligence if engaged in by an adult. Thus, to allow assumption of risk as a defense in a civil action would not only be inconsistent with the legislature’s commitment to the protection of children from sexual exploitation but would also render civil liability a nullity, particularly in cases involving teenagers.
observe that at the time of the
fourth incident, involving Bohlman and Bjerke “fooling around
on the couch,”
Bjerke was 17 years old and, therefore, the categorical ban against
a defense to statutory rape does not apply.
For the same reasons, we conclude that secondary assumption of risk is not a defense in casesinvolving children under the age of 16, and haslimited availability for children who are at least 16, but not yet 18, at the time of the sexual conduct. We are persuaded that, as a matter of public policy, a person under the age of consent lacks the judgment and maturity necessary to fully appreciate the danger inherent in engaging in sexual relations with an older person.
We thus see no reason not to apply the criminal-law presumptionthat minors are legally incapable of consenting to sexual conduct to civil cases. Accordingly, we conclude that the doctrines of primary and secondary assumption of risk, which are premised on the victim’s consent orappreciation of the risk of harm, do not preclude recovery in actions arising from sexual conduct.
Bjerke also challenges the district court’s order
granting Johnson’s request for a bifurcated trial of the
claims against her and
Bohlman and denying Bjerke’s request to amend her complaint
to add a
punitive-damages claim against Johnson.
Although these are not independently appealable orders, we choose to
address them in the interest of justice.
A district court has wide discretion to grant separate trials,
and its decision will not be overturned absent a clear abuse of that
discretion. McGuire v. C & L Restaurant,
Inc., 346 N.W.2d 605, 614 (
As with a motion to bifurcate trials, we review an order
denying a motion to amend a complaint for abuse of
D E C I S I O N
Because Bjerke and Johnson had a special relationship under Restatement (Second) of Torts § 324A (1965) and genuine issues of material fact remain as to whether Bohlman’s sexual abuse of Bjerke was foreseeable, the district court erred by granting summary judgment to dismiss Bjerke’s negligence claim against Johnson. Because for criminal-liability purposes a person under the age of consent lacks the capacity to consent to underage sexual contact, assumption of risk is not an available defense in a civil action for damages arising out of such contact. Children under the age of 16 who are abused by a person 48 months older and children between the ages of 16 and 18 who are abused by a person in a position of authority are deemed to be under the age of consent. The district court did not abuse its discretion by granting Johnson’s motion for a bifurcated trial and denying Bjerke’s motion to amend her complaint to add a punitive-damages claim.
Affirmed in part, reversed in part, and remanded.
LANSING, Judge (concurring specially)
On the facts presented in this appeal, Aja Bjerke has established that she had a special relationship with Suzette Johnson when she went to live on Johnson’s farm in 1998 when she was 15 years old. On the basis of that special relationship, together with the facts supporting foreseeability, Bjerke has established a triable issue on whether Johnson had a duty to protect Bjerke from sexual abuse by Johnson’s boyfriend, Kenneth Bohlman, which Bjerke alleges occurred between 1998 and 2001.
also demonstrated that the
district court erred by concluding as a matter of law that Bjerke
risk of the injuries she sustained as a result of the sexual
The majority attaches significance to the fact that Bjerke was 17 years old at the time of the fourth incident and hinges the availability of the assumed-risk defense on whether Bohlman was in a position of authority at the time. That analysis is incomplete because it does not take into account the facts that establish that Bohlman had a significant relationship with Bjerke. See Minn. Stat. § 609.341, subd. 15(3) (2006) (stating significant relationship includes adult who resides intermittently or regularly in same dwelling as complainant); State v. Sebasky, 547 N.W.2d 93, 100 (Minn. App. 1996) (finding significant relationship when complainants stayed at defendant’s apartment for periods of two to six days), review denied (Minn. June 19, 1996). On these facts, the assumption-of-risk defense is unavailable to Johnson.
For these reasons I would reverse the district court’s summary judgment dismissing Bjerke’s negligence claim. Because the district court acted within its discretion in bifurcating for trial the claims against Bohlman and Johnson, I would affirm that ruling. I would also affirm the ruling on the punitive-damages motion based on the current record.
Although a woman who lived at Island Farm for 11 consecutive months in 1987-88 testified that Bohlman sexually abused her, there is no evidence that Johnson was ever made aware of the alleged abuse. The woman, who was 14 at the time, stated that the abuse took place in the room Johnson and Bohlman shared, that she kept letters in which she detailed the incidents of abuse, and that she believed that the letters, which she kept on a table by her bed, had been read. But the record contains no evidence that Johnson read the letters, that the young woman ever discussed the incidents of abuse with Johnson, or that Johnson otherwise became aware of the abuse.