This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Janet C. Davidson,
as Trustee for the heirs of
Milton David, deceased,
South Metro Human Services,
a Minnesota non-profit corporation,
Filed December 11, 2001
Hennepin County District Court
File No. WD99006660
George H. Smith, Erik F. Hansen, Trawick & Smith, P.A., Suite 702, 330 Second Avenue South, Minneapolis, MN† 55401 (for appellant)
Dean A. LeDoux, Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN† 55402-3796 (for respondent)
††††††††††† Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
††††††††††† Ricky Davidson, a man who has suffered from schizophrenia since he was a teenager, fatally stabbed his father, Milton Davidson, on May 14, 1996.† Appellant Janet Davidson, Ricky Davidsonís mother and Milton Davidsonís wife, initiated this negligence and wrongful death action against respondent South Metro Human Services (South Metro), a non-profit corporation that provided mental health and support services to Ricky Davidson.† In the hour before Milton Davidsonís death, South Metro employee Wayne Goellner visited the Davidson home because Ricky Davidson appeared there exhibiting bizarre behavior.†
††††††††††† The district court granted summary judgment to South Metro, concluding that South Metro was not liable in negligence because it had no legal duty to protect the Davidsons or to warn them that they could be in danger.† We agree and affirm.† We also grant South Metroís motion to strike those portions of appellantís brief and appendix that refer to matters outside the record.†††††
††††††††††† The elements of a negligence claim include duty, breach, proximate cause, and injury in fact.† Nickelson v. Mall of Am. Co., 593 N.W.2d 723, 725-26 (Minn. App. 1999).† ďWhether a duty exists is a question of law and subject to de novo review.Ē† Id. at 726 (citation omitted).† At common law, a defendant had no duty to control the conduct of a third person or to warn those endangered by that third personís conduct.† Cairl v. State, 323 N.W.2d 20, 25 n.7 (Minn. 1982).† The courts, however, have made an exception to this rule where the defendant is in a special relationship with either the third person or with the victim of the defendantís conduct.† Id.† In either case, the relevant inquiry involves the forseeability of the harm.† Lundgren v. Fultz, 354 N.W.2d 25, 27-28 (Minn. 1984).† Forseeability is generally a threshold legal question for the court to decide.† Cooney v. Hooks, 535 N.W.2d 609, 612 (Minn. 1995).
††††††††††† Even conceding that a special relationship existed here, we agree with the district courtís conclusion that it was not forseeable that Ricky Davidson would harm his parents.† The record shows that Ricky Davidson had no recent history of threatening or assaulting others.† His prior conduct included only two isolated incidents:† (1) in 1995 he threw a chair at a hospital employee; and (2) in 1994 he delivered a death threat to his brother over the telephone while in a psychotic state.† On the day that he fatally stabbed his father, Ricky Davidson was sleep deprived and hallucinating, but he had not threatened anyone present at his parentsí home.† Nor did any of the people present that day believe that they were in danger of imminent harm.† Indeed, Ricky Davidsonís girlfriend, who was present and is a nurse, admitted that his behavior did not concern her and that she did not believe it could have met the legal standard for his involuntary commitment.† See Minn. Stat. ß 253B.05, subd. 2 (1996) (requiring, for involuntary commitment, mentally ill person to be in imminent danger of injuring self or others).†
††††††††††† Thus, we conclude that the district court did not err by concluding that the harm perpetrated here was not foreseeable, because Ricky Davidson had no recent history of threatening others and did not threaten anyone present at his parentsí home that day.† See Lundgren, 354 N.W.2d at 26-27 (psychiatrist who assisted mentally ill patient in retrieving his guns confiscated by sheriff held to have special relationship with patient who randomly shot restaurant patron where it was forseeable that patient would exhibit such conduct based on prior violent thoughts and expression, two prior incidents of brandishing weapons, and fixation with guns and harming others); Rum River Lumber Co. v. State, 282 N.W.2d 882, 886 (Minn. 1979) (state hospital had duty to control conduct of mentally ill patient where hospital knew of patientís ďdangerous propensitiesĒ and had authority to control the patientís conduct).
††††††††††† We further conclude that under the facts of this case, the district court did not err by concluding that South Metro owed no duty to warn.† Ricky Davidson had never threatened either of his parents.† See Cairl, 323 N.W.2d at 26 (no duty to warn unless specific threat made against specific person).† Further, the Davidsons had intimate knowledge of their sonís mental health issues and behavioral propensities.† A duty to warn encompasses only latent, not known dangers.† See id. (state hospital had no duty to warn parents of pyromaniacal propensities of youth on holiday leave from hospital).
††††††††††† Finally, South Metro moves to strike portions of appellantís brief and appendix that refer to matters outside the district court record.† The appendix to appellantís brief includes orders for commitment from 1994 and 1996 that were not part of the district court record. †Further, appellantís brief references earlier incidents that are not part of the record and references the record in Ricky Davidsonís separate criminal case.† We strike any reference to these non-record documents in appellantís brief.† See Thiele v. Sitch, 425 N.W.2d 580, 582-83 (Minn. 1988) (court should not base its decision on matters outside the record).
 In her brief on appeal, appellant claims that Ricky Davidson had an extensive medical history of schizophrenia that included threats and violent conduct allegedly occurring from 1993 to the date of his fatherís death.† The record before the district court includes the depositions of the persons present at the Davidson home on May 14, 1996; the South Metro contract; Wayne Goellerís daily log on Ricky Davidsonís case; and a medical assessment for Ricky Davidson from mid-1995.† These documents do not establish that Ricky Davidson has a significant history of violence or a propensity for violence.