This opinion will be unpublished and

may not be cited except as provided by

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






Laurie Marie Kostreba, as parent and natural guardian of:
J.K.N., a minor,


Avis Marie Bratland, et al.,


Filed April 18, 2000


Crippen, Judge


Stearns County District Court

File No. C5-98-1555


Stephen L. Heller, Jim Jorgenson, Nelson Personal Injury Attorneys, Suite 440, 1010 West St. Germain, St. Cloud, MN 56301 (for appellant)


Janet Waller, Jeffrey D. Bores, Chestnut & Cambronne, P.A., 3700 Piper Jaffray Tower, 222 South Ninth Street, Minneapolis, MN 55402 (for respondent Bratland)


††††††††††† Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

U N P U B L I S H E D†† O P I N I O N


††††††††††† Appellant Laurie Marie Kostreba challenges the trial courtís summary judgment that respondent Avis Bratland had no special relationship with John Neuman, who boarded in respondentís home, that would impose on her a duty to control Neuman.We affirm.


††††††††††† Appellant and her daughter J.K.N. are neighbors of respondent Avis Bratland, in the city of St. Joseph.In the course of her work at a St. Cloud boarding home, respondent became acquainted with John Neuman, a 24-year-old man, who became a resident at the facility in August 1995.Several months later, after Neuman could no longer afford to live at the boarding home, respondent agreed to rent space in her own home to Neuman.

Neuman felt comfortable talking with respondent and regarded her like a mother or grandmother.He believed she ďtook [him] under her wing.ĒBecause she had access at the boarding home to a report on Neuman, respondent was aware that Neuman had a traumatic brain injury, suffered as a result of a 1991 auto accident, and had a history of learning disabilities.

At the time Neuman moved into respondentís home, respondent became a representative payee for Neumanís social security disability benefits.Later, when Neuman was unable to pay all his bills, respondent allowed him to remain in her home without paying rent, and she paid some of his bills from her own funds.Neuman later repaid respondent with money from a trust fund he had received when his father died.

J.K.N. was five or six years old when Neuman moved in next door with respondent.The child would visit respondentís home with some regularity; at times she came after being invited, but frequently she would arrive unannounced and enter without knocking.Respondent asked appellant on several occasions to keep J.K.N. from visiting unless she was invited, but the unannounced visits continued.

††††††††††† On September 6, 1996, either appellant or her older daughter asked that Neuman babysit J.K.N.This was not the first time Neuman had been asked to babysit J.K.N.During the afternoon of September 6, while J.K.N. sat on Neumanís lap watching television, Neuman became sexually aroused, wrongfully rubbed parts of J.K.N.ís body and had her engage in sexual touching.Respondent Bratland was away from her home at the time.

†††††††††† J.K.N. left respondentís home shortly after this incident occurred, when her mother returned home.Neuman disclosed to both respondent and appellant, in general terms, what had happened.After initially thanking Neuman for his honesty, appellant later became enraged, reported the incident to the police, and brought suit against Neuman and also against respondent, premised on the theory that respondent had custody and control of a dangerous person.


††††††††††† On appeal from summary judgment, a reviewing court must determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law.State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).The evidence is viewed in the light most favorable to the party against whom judgment was granted.Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).A reviewing court need not defer to the trial courtís application of the law when the parties essentially agree to the material facts, as in this case.Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

††††††††††† A cause of action for negligence consists of a duty, a breach of that duty, a causal connection between the breach and the injury, and an injury in fact.Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996); Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).The dispute in this case is limited to whether a duty existed.The existence of a legal duty is generally a matter of law, subject to de novo review.Johnson, 553 N.W.2d at 49; Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).

††††††††††† Generally, a person has no duty to control the actions of another to prevent that party from causing harm to a third unless a "special relationship" exists between the parties and the harm is foreseeable.Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984); Restatement (Second) of Torts ß 315 (1965).The special-relationship exceptions currently recognized by existing case law are ďclear and narrow.ĒAnders v. Trester, 562 N.W.2d 45, 49 (Minn. App. 1997).

††††††††††† The trial court rejected appellantís claim that respondent had a special relationship with Neuman, reasoning that respondent had no special medical or psychiatric training that would permit her to determine whether Neuman had a propensity for misbehavior.[1]

The trial court correctly analyzed the governing case law.The relationship of respondent contrasts with those for which a special relationship has been found, where the defendant had a higher level of custody or had critical professional knowledge.See Lundgren, 354 N.W.2d at 29 (holding that treating psychiatristís duty to control mentally ill patient was jury question when psychiatrist ďplace[d] the gun in a potential assassinís handĒ while having knowledge of patientís violent thoughts and expression and fixation with guns); Rum River Lumber Co. v. State, 282 N.W.2d 882, 886 (Minn. 1979) (ruling that hospital with locked ward for mentally ill patients had duty to control based on factors of known dangerous propensities, foreseeability of harm and opportunity or authority to control the patient); Sylvester v. Northwestern Hosp., 236 Minn. 384, 389-90, 53 N.W.2d 17, 20-21 (1952) (finding that hospital accepting insane or mentally ill patients had duty to protect other patients from known intoxicated patient who was a well-recognized source of danger to others).

Respondent had no special training to deal with the condition or behavior of Neuman.Equally important, she never assumed responsibility to engage in any treatment or control of Neuman that might impose a duty.And there is no evidence that respondent had the ability to control Neuman.See Lundgren, 354 N.W.2d at 27 (noting that the ability to control is implicit in the duty to control).Respondent had asked appellant to keep J.K.N. away from her home unless she was invited; respondent was not home at the time of the incident; and she was unaware that Neuman had been asked to babysit J.K.N.

Appellant contends that an extension of the control doctrine is appropriate because Neuman had disclosed to respondent that he had been sexually molested by an uncle as a child, and that, as a teenager, he had had sex with his sister.In addition, appellant points to the fact that Neuman had told respondent that he wanted her help in keeping J.K.N. off his lap because he became aroused on those occasions when she sat there.

These facts merely highlight the limited role of respondent.She had no special training to permit her to make a judgment as to the meaning of Neumanís history or his sexual reaction to J.K.N.ís presence.She was not engaged to deal with either his psychiatric condition or his sexual behavior.Moreover, her relationship with Neuman was not of such a nature as to create responsibilities like those of a parent for a child.

Appellant suggests in argument that the duty to control be enlarged to include a duty to warn.With this, appellant acknowledges the limited means of control available to respondent.And there are no authorities distinguishing among the duties that might flow from control of a dangerous person.[2]See H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 708-09 (Minn. 1996) (considering cases with both duty to protect and duty to warn and finding no duty to protect); Lundgren, 354 N.W.2d at 28-29 (reversing trial courtís ruling that psychiatrist had no duty to warn and concluding duty and ability to control was jury question); Delgado v. Lohmar, 289 N.W.2d 479, 483-84 (Minn. 1979) (considering duties to warn, control and protect).

Appellant also points to policy reasons to enlarge the doctrine regarding sexual offenders and argues that this policy is especially evident in the Sexual Offender Notification laws.Nothing in our deference to concerns about sex offenders alters our understanding of the concept of control that is at the root of this case.

Because the record shows no special relationship between respondent and Neuman that would support imposing a duty to control, the trial court did not err in its summary judgment.

††††††††††† Affirmed.



[1] A duty to control may also be premised on the relationship between the defendant and the injured party.Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979).On appeal, appellant does not advance this theory in support of her claim against respondent.


[2] A duty to warn does carry with it a rigid standard to determine foreseeability in cases where a special relationship has been found.Cairl v. State, 323 N.W.2d 20, 26 (Minn. 1982) (finding that specific threats must be made against specific victims).The trial court did not address this requirement because of its conclusion that no special relationship existed.Because we agree with the trial court that no special relationship exists, we do not reach the issue of foreseeability and the duty-to-warn standard.See H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 709 n.5 (Minn. 1996) (noting the conclusion that no special relationship exists obviates the necessity to address the issue of foreseeability).