This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Hennepin County District Court
File No. PI97012918
Eric D. Satre, Sheila Ketelson Dokken, Connor, Satre & Schaff, L.L.P., 925 Lumber Exchange Building, Ten South Fifth Street, Minneapolis, MN 55402 (for appellant)
Andrew T. Shern, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.
Appellant Dawn Sarau disputes the trial court’s summary judgment that respondent Karen Oliver had no duty to protect appellant from a criminal act by respondent’s 20-year-old son. There being no showing that respondent had such a duty, either as a landowner or through a special relationship with her son, we affirm.
Appellant met respondent’s son in the spring of 1995 when appellant was 16 and he was 20. While on a date with respondent’s son, appellant was in his bedroom in respondent’s home, where she alleges she was raped. When the facts are viewed in the light most favorable to appellant, respondent entered the room before the incident occurred but left the room when her son shouted at her.
At the hearing on respondent’s summary judgment motion, appellant argued that because respondent knew of her son’s juvenile court record, including a fondling incident that occurred when her son was 15 years old, respondent owed a duty to appellant.
A summary judgment should be granted when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, submitted “show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. Where the record, taken as a whole, “could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted).
In reviewing a grant of summary judgment, this court determines whether there are any genuine issues of material fact or the lower court erred in its application of the law. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). This court views the record in the light most favorable to the party against whom summary judgment was granted, resolving any doubts as to the existence of issues of material fact in favor of this party. Id.
Normally, the question of negligence is a matter for the jury. Oakland v. Stenlund, 420 N.W.2d 248, 250 (Minn. App. 1988), review denied (Minn. Apr. 20, 1988). But a defendant is entitled to summary judgment as a matter of law, when the record reflects a complete lack of proof on an essential element of the plaintiff’s claim. Lubbers, 539 N.W.2d at 401. The existence of a duty is an essential element of a negligence claim. Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999).
Appellant contends a duty exists in this case, either due to respondent’s special relationship with her son or as a result of respondent’s duty as a landowner to warn persons using the premises of unreasonable risks of harm. The existence of a legal duty to protect another person is a question of law that this court reviews de novo. Id.; H.B. by Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996). Generally, one does not have a duty to protect others from harm caused by a third party’s conduct, even if one realizes or should realize action on one’s part is necessary to protect another. H.B., 552 N.W.2d at 707; Donaldson v. Young Women’s Christian Ass’n, 539 N.W.2d 789, 792 (Minn. 1995). An exception to this general rule arises where the defendant has a special relationship with the actor and the harm is foreseeable. Donaldson, 539 N.W.2d at 792.
The exceptional circumstances of a special relationship with the actor may exist for a child’s parent. See Silberstein v. Cordie, 474 N.W.2d 850, 856 (Minn. App. 1991), remanded in part on other grounds (Minn. 1991); see also Restatement of Torts (Second) § 316 (1965). But the relevant cases cited by appellant fail to account for the fact that respondent’s son was 20 years old at the time of the incident. Respondent had no duty to control the actions of her adult son. See Drysdale v. Rogers, 869 P.2d 1, 3 (Utah Ct. App. 1994) (no special relationship between parents and adult child); see also Nichols v. Atnip, 844 S.W.2d 655, 662-63 (Tenn. Ct. App. 1992) (no special relationship between parents and their adult son; family relationship alone is not a “special relation” because it does not necessarily entail ability to control); Restatement of Torts (Second) § 316 (1965) (parent has a duty to exercise reasonable care to control a minor child).
Although a duty to control an adult child’s actions may arise where that child is uniquely disabled, there is no showing of any such disability in this case. See Silberstein, 474 N.W.2d at 856 (denial of parents’ motion for summary judgment appropriate, where fact issues existed as to whether parents had ability to control child and whether harm caused by child was foreseeable, where child was a diagnosed schizophrenic and parents had assumed his care). Finally, “[i]mplicit in the duty to control is the ability to control.” Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984) (citation omitted). There is no indication in this case that respondent had the ability to control her 20-year-old son’s actions.
Appellant’s reliance on this court’s decision in the Tiedeman case is misplaced. See Tiedeman v. Morgan, 435 N.W.2d 86, 87 (Minn. App. 1989), review denied (Minn. Mar. 29, 1989). First, this precedent deals with a defendant’s relationship with an injured person, not a duty to control the actions of a third party. In addition, the parties in Tiedeman had control over the circumstances, and there is no showing of that kind of control in this case. Also, the danger in Tiedeman was uniquely apparent, but there is no evidence in this case that it was apparent a rape was about to occur, notwithstanding respondent’s knowledge of her son’s five-year-old conviction for fondling.
Appellant cites Restatement of Torts (Second) § 302 as support for the argument that respondent owed a duty to protect appellant from the actions of her son. But this provision concerns only the character of a failure to act and does not address the existence of a duty. See Restatement (Second) of Torts § 302 cmt. a (1965). If there is no duty to act, a failure to act does not subject the actor to liability. Restatement (Second) of Torts § § 302 cmt. a; 302B cmt a. And there is no duty to act to protect another unless there is a special relationship that gives rise to such a duty. Donaldson, 539 N.W.2d at 792; Restatement (Second) of Torts § 302 cmt a.
Appellant also asserts that respondent, as a landowner, owed her a duty to warn of the danger represented by respondent’s son. A landowner must use reasonable care in carrying on activities on the land and must maintain the premises so that their condition does not expose the visitor to an unreasonable risk of harm. Pietila v. Congdon, 362 N.W.2d 328, 332-33 (Minn. 1985). But appellant points to no authority extending this principle to circumstances like those in this case.
The Minnesota Supreme Court has declared that it finds no authority imposing upon a homeowner “the duty to protect persons invited to his residential premises from the criminal activities of third persons.” Id. at 333. And where the harm was not foreseeable, respondent, as a landowner, owed no duty to warn appellant of a risk of harm by a third person. See Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985) (whether appellant owed duty to warn house-sitter of previous threat depended on whether the criminal act of arson was sufficiently foreseeable to impose the duty to warn on appellant); see also Pietila, 362 N.W.2d at 333-34 (landowners owed no duty to guard against murders committed by a third party). The supreme court has found no occasion for recognizing the foreseeability of personal violence in the absence of a specific threat that it would occur. Cairl v. State, 323 N.W.2d 20, 26 (Minn. 1982). Respondent’s knowledge of her son’s five-year old delinquent act did not equate with knowledge of a specific threat of violence. And the prospect for determining that respondent might reasonably foresee her son’s crime is further diminished by the absence of evidence that she could control her son’s behavior.
 The special relationship that gives rise to a duty to control a third person for the protection of another may be a special relationship between the actor and the third person or between the actor and the person needing protection. See Restatement (Second) of Torts § 315 (1965). On appeal, appellant does not address the question of a special relationship between respondent and appellant but rather limits the relevant argument to the relationship between respondent and her son. Accordingly, we need not determine whether any special relationship existed between respondent and appellant.