This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Philip M. Kor, individually,

and on behalf of his minor daughter,

Jackie H. Kor,





Mall of America Companies, Inc.,

et al.,



Filed May 9, 2000

Klaphake, Judge


Hennepin County District Court

File No. PI-96-12284



Jesse Gant, III, Gant Law Firm, 670 Grain Exchange Building, 301 South Fourth Avenue, Minneapolis, MN  55415 (for appellant)


Sylvia Ivey Zinn, Burke J. Ellingson, Brendel and Zinn, Ltd., 46 East Fourth Street, Suite 804, St. Paul, MN  55101 (for respondents)



            Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant Phillip Kor, individually and on behalf of his minor daughter, commenced this action against respondents Mall of America Companies and others, asserting common law claims of negligence, false imprisonment, defamation, and a statutory claim of discrimination in public accommodations under the Minnesota Human Rights Act, Minn. Stat. § 363.03, subd. 3 (1994).  The dispute arose out of an altercation between appellant’s daughter and another Mall of America patron and a subsequent detention of the daughter by mall security.  The district court ordered summary judgment in favor of respondents on the common law claims.  Following a bench trial on the discrimination claim, the court ruled that appellant had not proven discrimination and ordered entry of judgment in favor of respondents.  Appellant challenges both the summary judgment dismissals and the judgment on the discrimination claim.  We affirm.



            Appellant challenges the district court’s findings with respect to the claim of discrimination in public accommodations.  On appeal, a district court’s findings will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  A finding is “clearly erroneous” if the reviewing court is “left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).

             Minn. Stat. § 363.03, subd. 3, prohibits denying someone full enjoyment of a public accommodation because of the person’s race.  Claims of disparate treatment under the Minnesota Human Rights Act are analyzed under the three-part McDonnell Douglas test in which the plaintiff must present prima facie evidence of discrimination; the defendant must answer the evidence with a race neutral explanation; and the plaintiff must then show the explanation was merely a pretext.  Sigurdson v. Isanti County, 386 N.W.2d 715, 719-20 (Minn. 1986).  At all times, however, the plaintiff has the burden of persuading the fact-finder that she was discriminated against because of her race.  Id. at 720 n.2.

            Appellant claims that Mall of America security officers detained and mistreated his daughter because she was Asian American.  The district court, however, determined that appellant simply had not carried his burden of showing that his daughter was treated differently based on her race, and the record contains ample evidence to support that determination.  The issue essentially involved conflicting testimony between the security officers, the daughter, and her friends.  The credibility of witnesses lies within the province of the court as fact-finder.  General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987).  In light of those determinations, the district court’s findings were not clearly erroneous and there is no reason for this court to disturb them.


            In reviewing summary judgment, this court must determine whether there are genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The evidence must be 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).  If a party has the burden of proof but fails to establish an essential element of the claim, summary judgment is mandatory because with that failure, all other facts are rendered immaterial.  Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).

            1.         Negligence

            To support a claim of negligence, a plaintiff must prove: (1) the existence of a legal duty toward the plaintiff; (2) a breach of the duty; (3) that the breach proximately caused the plaintiff’s damages; and (4) injury to the plaintiff.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).  The district court ruled that there was no evidence that the breach of any duty by the officers caused the daughter’s injuries.  Although proximate cause is normally a question of fact for the jury, it may be disposed of on summary judgment if reasonable minds could only arrive at one conclusion on the issue.  Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995).

            The daughter’s alleged injuries resulted from mace sprayed in her eyes by another mall patron.  Appellant does not claim that the security officers had a duty to prevent the macing in the first instance.  Instead, his claim was that the officers had a duty to prevent further damage to his daughter’s eyes once they detained her.  Specifically, appellant claims that the officers should have allowed his daughter to flush her eyes with water or to seek medical attention.  Thus, the issue of causation is limited to whether the officers’ conduct caused the daughter harm.

            The district court correctly concluded that appellant presented no evidence tending to establish that inaction by the officers caused his daughter any more harm than she would have suffered had she been able to flush her eyes or go to a hospital. The only evidence in the record on recommended eye care for a person who has been maced included either flushing the person’s eyes with water or blowing a breeze into the person’s eyes.  The record establishes that appellant’s daughter received this care, as she admitted that, prior to being detained, she had already flushed her eyes until flushing was no longer effective and that the officers placed a fan by her face.  And, more importantly, appellant did not present evidence that his daughter’s condition would have been alleviated had the officers done anything different.  Because appellant failed to establish the essential element of causation, summary judgment on the negligence claim was properly granted.  See id.

            2.         Defamation 

            To be considered defamatory, a statement

must be communicated to someone other that the plaintiff, it must be false, and it must tend to harm the plaintiff’s reputation and to lower him in the estimation of the community.


Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  The district court’s sole basis for summary judgment on the defamation claim was that “the only persons alleged to be present [were] the security officer and [appellant’s daughter].” The record, however, reflects a genuine issue as to whether others heard the alleged statement.    

            Respondents argue that, despite the court’s error, summary judgment on defamation can be affirmed because the issue was actually litigated and decided against appellant.  We agree.  In its findings following the discrimination trial, the court found that appellant “failed to produce credible evidence that any racial slur or comment was made by the security officers.”  Because this central element, the communication of a false statement, was decided against appellant, we affirm the court’s ultimate decision on the defamation claim.

            3.         False Imprisonment

            A plaintiff seeking to establish false imprisonment must show that she was actually confined.  Blaz v. Molin Concrete Prods. Co., 309 Minn. 382, 385, 244 N.W.2d 277, 279 (1976).  The district court, relying on Elwood v. Rice County, 423 N.W.2d 671 (Minn. 1988), ruled that appellant failed to establish confinement to avoid summary judgment.  The court noted that appellant’s daughter “was in the presence of security officers some 17 minutes before being placed under citizen’s arrest and handed over to the Bloomington Police” and that the confinement was too brief to constitute false imprisonment.

            The district court’s application of Elwood was erroneous.  In Elwood, the record showed “not confinement but a very brief restraint of the right of the [parents] to go to their son.”  Id. at 679 (quotation omitted).  The confinement element is fulfilled if a plaintiff is “compelled to go where he does not wish to go.”  Blaz, 309 Minn. at 385, 244 N.W.2d at 279 (citation omitted).  Moreover, “it is at least settled that the imprisonment need not be for more than an appreciable length of time.”  W. Page Keeton, Prosser and Keeton on the Law of Torts § 11, at 48 (5th ed. 1984).

            The alleged confinement in this case went far beyond a brief restraint.  According to the daughter, she was taken to a room where she was not allowed to leave until the police arrived.  The district court, therefore, erred in ruling that the confinement was too brief to constitute false imprisonment.

            Nevertheless, the district court’s grant of summary judgment can be affirmed despite the court’s error.  Appellant seemingly overlooks the fact that the imprisonment must be “false.”  As the Wisconsin Supreme Court has noted:

It is recognized that one may be privileged to interfere with the liberty of another, within limits, for the purpose of defending one’s self, defending a third person, or preventing the commission of a crime.

Drabek v. Sabley, 142 N.W.2d 798, 799 (Wisc. 1966) (footnote omitted); see 35 C.J.S. False Imprisonment § 19 (1999); Restatement (Second) of Torts, §§ 67, 76 (1965) (privilege to imprison to defend third parties).

            The district court found that appellant’s daughter was a threat to the health or safety of the other mall patron involved in the altercation.  Considering all of the facts in the record along with the district court’s findings, we conclude that the detention was justified as a matter of law.  We therefore affirm the grant of summary judgment on the issue of false imprisonment.

            4.         Punitive Damages

            Appellant challenges the district court’s refusal to allow amendment of the complaint to add a claim of punitive damages.  Because we conclude that appellant has failed to establish a basis for liability, we decline to address this issue.






* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.