This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-974

 

Robert Tucker on behalf of his

minor daughter, A.M.T.,

Appellant,

 

vs.

 

Footlocker, et al.,

Respondents,

 

Excalibur Group, Inc., et al.,

Defendants.

 

 

Filed ­­­December 19, 2000

Affirmed

Harten, Judge

 

Hennepin County District Court

File No. 997047

 

David E. Wandling, Sheila K. Dokken, Wandling, Uggen, Rugara, Fowlkes, L.L.C., 1000 Shelard Parkway, Suite 600, Minneapolis, MN 55426 (for appellant)

 

Joseph J. Roby, Jr., Johnson, Killen & Seiler, P.A., 800 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for respondents)

 

            Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

A 16-year-old female employee was raped by two 17-year-old male co-employees.  She brought this action against them, their supervisor, and the corporate employer.[1]  The district court granted summary judgment in favor of the supervisor and the corporate employer and dismissed appellant’s claims against them.  Because we see no genuine issue of material fact and no error of law, we affirm.

FACTS

 

            Appellant, then 16, J.H., 17, and P.C., 17, were all teenage sales-associate employees of respondent Footlocker at its Ridgedale store, managed by Steve Abel.    

Appellant testified that in mid-June 1997, J.H. raped her at his home, where she was attending a party at his invitation. She did not report the rape to her employer or mention it to anyone else, although she was aware that Footlocker encouraged its employees to report sexual misconduct.

            On June 24, 1997, appellant, J.H., P.C., and Abel were all scheduled to work until 9:30 p.m.  Appellant’s father, Robert Tucker, had planned to pick her up from work.  When he realized he would be unable to do so, he called the store.  He testified that he spoke to Abel and asked him “to see that [appellant] got home.”  Abel testified that he did not remember speaking to Tucker but overheard the conversation between him and appellant and offered to give appellant a ride home.  In any event, Abel assumed the responsibility for seeing that appellant got home.

            After work, appellant, J.H., P.C., and Abel went to a bar/restaurant where Abel drank beer.  Abel testified that during the conversation, J.H. and appellant told him they were dating and that they knew he probably would not like it because of potential problems in the workplace. Abel said he did not want to drive appellant home after having consumed beer, and it was agreed that J.H. and P.C. would drive her home.  The three left the restaurant at about 11:00 and went to rent a video.  They arrived at appellant’s home between 11:30 and midnight.  By that time, her father had come home; her teenage brothers and a group of their friends were also in the home.  Appellant, J.H., P.C., appellant’s brothers, and their friends watched the movie until about 1:00 a.m.  Appellant’s father went to bed.  He assumed appellant was in for the night, that being the rule of the house.

            After the video, J.H. asked appellant to accompany him to take P.C. home so he would not have to drive into the city alone.  Appellant agreed and told her brother and his friends that she was leaving with J.H. and P.C.  The three went to “Sex World” in downtown Minneapolis and then to a public park where, about 3 a.m., J.H. and P.C. raped appellant.

            Appellant continued to work for respondent.  Her father informed respondent of the rapes and asked that appellant not be scheduled to work the same hours as J.H. and P.C.  J.H. and P.C. were suspended soon afterwards.

Three legal proceedings resulted. First, appellant reported the rapes to the authorities and ultimately J.H. and P.C. pleaded guilty to third-degree criminal sexual conduct.  Second, appellant filed charges of sex discrimination against respondent with the federal Equal Employment Opportunity Commission and the Minnesota Department of Human Rights.  Both agencies dismissed the charges without taking action.  Finally, based on the same allegations, appellant brought this action against Footlocker, Venator Group Retail, and Woolworth Corporation (collectively, respondent); Abel; J.H.; and P.C. 

Respondent and Abel moved for summary judgment on the four claims against them: negligent infliction of emotional distress, negligence, negligent retention, and negligent supervision.  Their motion was granted, and the claims were dismissed.  Appellant challenges only the dismissal of the negligent retention, negligence, and negligent infliction of emotional distress claims against the corporate respondent.[2]

ANALYSIS

 

            In reviewing a summary judgment, this court must consider whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The parties have agreed to the facts for the purposes of this appeal.


1.            Negligent Retention

A * * * claim for negligent retention may arise when an employer becomes aware or should have become aware that an employee poses a threat and fails to take remedial measures to ensure the safety of others.

 

Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 540 (Minn. App. 1997), review denied (Minn. June 11, 1997).  The issue, then, is whether appellant can show that respondent was aware or should have been aware that J.H. and P.C. posed a threat to her.  

            Abel’s deposition testimony shows that he had no such awareness.  Abel testified that (1) he had never heard or learned that male employees made workplace comments about a female co-worker’s appearance, (2) he had never made or heard any comments about appellant’s body, (3) he never had occasion to write up anyone for sexual misconduct of that nature, (4) about once in two weeks, a male employee might make a comment of a sexual nature about a female customer, but it never went beyond a single comment; (5) Abel told all new employees that any sexual or dating relationship with customers was not tolerated and spoke more strongly to male employees, (6) Abel would not have tolerated male employees commenting about female employees’ physical attributes; and (7) he had never seen any inappropriate touching between employees or had any complaints of it . 

Abel also testified that, after the incident giving rise to the instant action, he heard that J.H. had a sexual incident in the restroom with a 15-year-old female employee and that Abel took no action because the alleged victim never complained to him.  J.H. was suspended within 24 hours of the time Abel found out about the incident.  

In regard to appellant, Abel testified that (1) he knew appellant and J.H. were developing a friendship but they were “just friends’” at work and hid other things from him, (2) appellant and J.H. telephoned each other at work more frequently as their friendship developed, (3) Abel had never heard J.H., P.C. or any other male co-worker say they wanted to have sex with appellant, (4) appellant, J.H., and P.C. all had “clean slates” (none had been written up) on their workplace conduct, and (5) Abel never saw either J.H. or P.C. pinching or slapping appellant. 

Appellant’s testimony does not contradict Abel’s.  She testified that she was harassed by both J.H. and P.C. at work but that she knew of no witnesses, that she did not report the incidents to Abel or to an assistant manager, and that she had no information indicating that Abel or the assistant managers knew J.H. and P.C. were harassing her.  She testified about a slapping incident, saying that if Abel had been with them, he would have seen it, but she was not positive that he was with them.  When asked, “But do you have any indication that Mr. Abel witnessed how these two guys are mistreating you in particular?” she said,

 “Other than just being at work at the same time and having things happen in the stock room if he happened to be walking by, but none that I am positive of him seeing.”

 

            Thus, appellant did not show that respondent’s management was aware or should have been aware that J.H. and P.C. posed a threat to her.  Failure to make such a showing is fatal to a negligent retention claim.  See, e.g., Oslin v. State, 543 N.W.2d 408, 414-15 (Minn. App. 1996) (where there was no evidence that the employer knew or should have known of an employee’s propensity to defame others, claim of negligent retention was properly dismissed), review denied (Minn. April 1, 1996); M.L. v. Magnuson, 531 N.W.2d 849 (Minn. App. 1995) (where there was no evidence that the employer knew of an employee’s propensities to commit sexual abuse or that interest in youth ministry/counseling should imply propensity to sexual abuse, finding of negligent retention was so contrary to the evidence as to warrant a new trial), review denied  (Minn. July 20, 1995).  Appellant’s claim for negligent retention fails as a matter of law.

2.            Negligence

            The elements necessary to maintain a claim for negligence are (1) duty, (2) breach of that duty, (3) that the breach of duty be the proximate cause of plaintiff’s injury, and (4) that the plaintiff did in fact suffer injury.  Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996). 

            Appellant contends that, by virtue of her father’s telephone call, Abel, respondent’s manager, assumed a duty to see her safely home and breached that duty and that the breach caused her rape.  Abel arguably assumed the duty of seeing appellant home.  Appellant safely arrived at her home, which was then occupied by several family members.  She testified that she felt safe at home.  She also testified that she made no attempt to tell J.H. and P.C. not to come into the house with her and that, despite her father’s rules to the contrary, she voluntarily agreed to leave the house with the two of them after they had watched the video.  Even if Abel breached the duty to see her home personally, appellant arrived home safely and Abel’s breach was of no significance.

A breach of respondent’s duty was not the cause of appellant’s rape.  J.H. and P.C. could have gone to appellant’s house independently after work and persuaded her to go out with them; the fact that they, and not Abel, drove her home did not make her rape foreseeable. 

Appellant relies on two cases to argue that the rape was foreseeable; both are readily distinguishable.  Quick v. Benedictine Sisters Hosp. Ass’n, 257 Minn. 470, 102 N.W.2d 36 (1960), concerned a patient injured by falling out of bed after a series of shock treatments.  The court rejected the hospital’s argument that it could not foresee that the patient would fall out of bed.

The defendant [hospital], therefore, was charged with knowing the probability that plaintiff, due to his confused state of mind, might cause harm or injury to himself.

 

* * * *

 

The mere fact that the defendant did not anticipate the injury that did happen does not relieve the defendant.  * * *  [T]he hospital would be liable for any injury proximately resulting from [the act] although the hospital could not have anticipated the particular injury which did happen.

 

 Quick, 257 Minn. at 479-80, 102 N.W.2d at 44.  Appellant argues that Abel’s inability to anticipate that she would be raped as a result of having J.H. and P.C. drive her home does not relieve respondent of liability because Abel should have known something was likely to happen if J.H. and P.C. drove her home.  But no injury proximately resulted from that act, unlike the act of the hospital in Quick in failing to supervise or restrain a confused patient.

            Appellant also cites Sheehan v. St. Peter’s Catholic Sch., 291 Minn. 1, 188 N.W.2d 868 (1971), for the proposition that

[w]hether [a child’s] subsequent conduct could have been foreseen by the exercise of reasonable care and prudence * * * has been held a question of fact for the jury.

 

Sheehan, 291 Minn. at 4, 188 N.W.2d at 871.  But Sheehan concerns whether it was foreseeable that a group of eighth grade boys, unsupervised on a playground, would throw pebbles at a group of girls. That issue is not analogous to whether it was foreseeable that two 17-year-old boys who had driven a 16-year-old girl home would spend time in the home with her and her family, that she would consent to leave the home with them in the middle of the night, and that they would ultimately take her to a park and rape her.[3] 

            Appellant does not make a prima facie case for respondent’s negligence; she shows neither breach of the duty to drive her home nor that rape was foreseeable if J.H. and P.C. instead of Abel drove her home.

3.            Negligent Infliction of Emotional Distress

            To the four elements of negligence cited above, the tort of negligent infliction of emotional distress adds three requirements: a plaintiff must show (1) she was within a zone of danger of physical impact, (2) she reasonably feared for her own safety, and (3) she suffered severe emotional distress with attendant physical manifestations.  K.A.C. v. Benson, 527 N.W.2d 553, 557-59 (Minn. 1995).  Appellant was certainly within a zone of danger when she was raped; at that moment she reasonably feared for her own safety, and she suffered emotional distress with physical manifestations.  But these criteria, while necessary, are not alone sufficient.  An act of respondent must have led to application of the criteria, and they must have been foreseeable.  In cases involving negligent and intentional infliction of emotional distress, the emotional distress has resulted from the defendant’s act.  See, e.g., K.A.C., 527 N.W.2d at 555 (distress resulted when plaintiff patient learned that defendant physician who performed gynecological procedures on her was infected with HIV and open sores); Garvis v. Employers Mut. Cas. Co., 497 N.W.2d 254, 257 (Minn. 1993) (distress resulted when defendant insurer called severely injured insured in hospital and told her she did not have coverage); Leaon v. Washington County, 397 N.W.2d 867, 869 (Minn. 1986) (distress resulted when defendants arranged stag party where plaintiff was forced to lie on a stage while a nude female dancer touched her vagina to his face); Stadler v. Cross, 295 N.W.2d 552, 553 (Minn. 1980) (distress resulted when defendant’s pickup truck struck plaintiffs’ child while plaintiffs were within yards of the accident); Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 904-05 (Minn. App. 1987) (distress resulted when defendant employer failed to prevent plaintiff’s co-workers from alleged harassment of plaintiff), review denied (Minn. Nov. 13, 1987).  

            Bohdan has a fact pattern most similar to the facts here in that it concerned workplace harassment.  Bohdan, however, supports affirming the summary judgment: if appellant’s negligent infliction of emotional distress claim is based on the rape, she cannot show causation between the rape and any of respondent’s acts, and if it is based on workplace incidents, Bohdan concluded that the only basis for a claim of negligent infliction of emotional distress was the plaintiff’s underlying defamation claim: “[o]therwise, there is no basis for the cause of action under these facts.”  Id. at 907.

The negligent retention claim fails for lack of evidence that respondent knew appellant’s co-employees posed a danger to her, and the negligence and negligent infliction of emotional distress claims fail because of lack of causation between respondent’s acts and appellant’s injury.

            Affirmed.



[1] Robert Tucker, father of the complainant, actually brings this appeal on complainant’s behalf.  For convenience, the complainant is referred to as “appellant.”

[2] Appellant does not challenge the dismissal of the negligent supervision claim or of any of the claims against Abel.

[3] Arguably, if the rape was foreseeable to anyone, it was foreseeable to appellant: J.H. had raped her at a party in his home the week before and both he and P.C. had sexually harassed her at work.