This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-99-666

Tamara Johnson, individually and as
Trustee for the heirs and next of kin of
Van S. Johnson, Deceased,
Respondent,

vs.

Daniel Christianson, Defendant,

Thompson Motors of Wykoff, Inc.,
Appellant.

Filed February 2, 2000
Reversed
Amundson, Judge

Fillmore County District Court
File No. C8-97-82

Daniel J. Heuel, Heuel, Carlson & Spelhaug, P.A., 404 Marquette Bank Building, P.O. Box 1057, Rochester, MN 55903 (for respondent)

John D. Thompson, Todd P. Zettler, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for appellant)

Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

 

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant Thompson Motors of Wykoff (Thompson Motors) was found liable for negligence and challenges the district courtís denial of its motions for a new trial and judgment notwithstanding the verdict, the admission of certain evidence, and the special verdict form. Because we conclude that no employment relationship existed between Thompson Motors and its terminated employee at the time the former employee murdered a customer, and because we conclude that Thompson Motors had no duty to protect a customer from the criminal attack of its former employee, we reverse.

FACTS

Thompson Motors terminated the employment of mechanic Dan Copeman on August 26, 1998. After being terminated, Copeman left the premises of Thompson Motors, drove to another business, and assaulted a former co-worker. Copeman then returned to Thompson Motors, shot and killed Chris Thompson, Vice President of Finance for the company, and customer Van Johnson, wounded two other employees, and then killed himself.

During the ten years he worked at Thompson Motors, Copeman threatened to assault a co-worker for failure to provide parts, threw a cord at and attempted to shove another co-worker, and walked away to "cool off" after a number of verbal disputes with his co-workers. Nothing in the record indicates that Copeman had previously threatened or assaulted any customer of Thompson Motors. The jury found Thompson Motors negligent and ten percent at fault for the death of Johnson.

D E C I S I O N

The issue of whether the denial or grant of JNOV was proper is a question of law, which we review de novo. Huyen v. Driscoll, 479 N.W.2d 76, 78 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992). The verdict form submitted to the jury asked whether Thompson Motors was "negligent." The district court instructed the jury on alternative theories of negligence, including negligent retention and negligent failure to warn or assist the customer before he was shot. We are unable to determine the theory accepted by the jury, but we conclude as a matter of law that Thompson Motors is not liable for negligence.

When an employer is sued in negligence for injuries caused by an employee, Minnesota recognizes three causes of action: negligent hiring, negligent retention, and negligent supervision. M.L. v. Magnuson, 531 N.W.2d 849, 856 (Minn. App. 1995), review denied (Minn. July 20, 1995). Only negligent retention is relevant here. To recover for negligent retention, a plaintiff must establish that "during the course of employment," the employer became aware or should have become aware "of problems with an employee that indicated his unfitness," and the employer failed "to take further action such as investigating, discharge, or reassignment." Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993).

The record establishes that Thompson Motors actually took "further action," discharging Copeman before the criminal acts on which this suit focuses. Copeman was no longer being retained as an employee, when he shot and killed Johnson, and a claim against Thompson Motors for negligent retention cannot lie. Under existing Minnesota law, an employer cannot is not liable for the future criminal acts of an employee that it has terminated.

The existence of a legal duty is a question of law for the court to determine. ServiceMaster v. GAB Business Servs., Inc. 544 N.W.2d 302, 307 (Minn. 1996). Generally, a person "has no duty to control the conduct of a third person in order to prevent that person from causing injury to another." Errico v. Southland Corp., 509 N.W.2d 585, 587 (Minn. App. 1993) (citing Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979)), review denied (Minn. Jan. 27, 1994). Whether a duty exists depends upon the relationship among the parties and the foreseeability of harm to others. Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn 1989).

A duty may exist if there is a special relationship, such as that between innkeeper and guest, common carrier and passenger, or hospital and patient, "which imposes a duty to control" or to protect, but only if the harm is foreseeable. Errico, 509 N.W.2d at 587. But a business establishment and its employees generally do not have a "special relationship" with a customer requiring them to protect the customer from a criminal attack. Id. at 588. The courts are "cautious and reluctant" to impose upon business establishments a duty to protect, and the existence of a "mere merchant-customer relationship is not enough." Erickson, 447 N.W.2d at 168. Even a business enterprise of a type that has been held to have a special relationship with its customers "is not the insurer or guarantor of the safety of its premises and cannot be expected to prevent all criminal activity." Id. at 170 (involving special relationship between owner of parking ramp and customers). In the absence of a special relationship, a person generally has no duty to act for the protection of another, even if the person realizes or should realize that action is necessary. Donaldson v. Young Womenís Christian Assín, 539 N.W.2d 789, 792 (Minn. 1995).

Thompson Motors had no duty to control Copemanís conduct after his termination and no special relationship existed that required it to protect customers from an unforeseeable criminal attack by its former employee.

The district courtís reliance on Minnesotaís Good Samaritan statute was misplaced. That statute imposes a duty to "give reasonable assistance" at the scene of an emergency to those who are exposed to or who have suffered "grave physical harm," to the extent that assistance can be provided "without danger or peril to" self and others. Minn. Stat. ß  604A.01, subd. 1 (1996). But there was no claim that Thompson Motors failed to render "reasonable assistance" after Van Johnson was shot; the claim was that Thompson Motors should have warned customers in advance. Copemanís criminal attack on a customer was not foreseeable; Thompson Motors had no reason to believe that Van Johnson was exposed to grave physical harm, and Thompson Motors had no statutory duty to render "assistance" before Johnson was shot.

"Negligence must be predicated upon what one should anticipate and not merely on what actually happened." Hellman v. Julius Kolesar, Inc., 399 N.W.2d 654, 656 (Minn. App. 1987) (citing Austin v. Metropolitan Life Ins. Co., 277 Minn. 214, 217, 152 N.W.2d 136, 138 (1967)). When a crime occurs, "the tendency" is to ask "what further security measures would have prevented the crime" and to translate those "further safeguards, ex post facto, [into] the applicable standard of care." Erickson, 447 N.W.2d at 169. Inevitably, those involved in the tragic events of August 26, 1996, will wonder whether anything could have been done differently. But in determining legal liability, the issue is whether Thompson Motors had a legal duty, whether a duty was breached, and whether any breach is the legal cause of damages.

Thompson Motors had no employment relationship with Copeman at the time of the shooting, no special relationship requiring it to protect its customer from criminal activity, and no duty to render "assistance" in advance of the shooting. As a matter of law, Thompson Motors cannot be held liable for negligence in failing to prevent Copemanís homicidal attack on a customer. Because we conclude that Thompson Motors was entitled to judgment notwithstanding the verdict, we need not address the claims of error on which the motion for new trial was based.

Reversed.