This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).








Guy W. Wicklander,





James Rarick, et al.,




Filed February 5, 2003


Robert H. Schumacher, Judge


Washington County District Court

File No. C9017488



Wilbur W. Fluegel, Fluegel Law Office, 701 Fourth Avenue South, Suite 1260, Minneapolis, MN 55415-1815; and


Joel A. Montpetit, Montpetit Freiling & Kranz, 222 Grand Avenue West, Suite 100, South St. Paul, MN 55075-1139 (for appellant)


Mike Hatch, Attorney General, Marsha Eldot Devine, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondents)



Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Wright, Judge.



Appellant Guy W. Wicklander contends the district court erred by dismissing his complaint for personal injuries on the grounds that his claims were barred by the exclusivity provision of the workers' compensation statute, Minn. Stat. Chapter 176 (2002). We affirm.


Appellant was employed as a foreman with MinnCOR, a division of the Minnesota Department of Corrections. MinnCOR administers a correctional facility work program and employs a voluntary work force at Oak Park Heights Correctional Facility. MinnCOR has several manufacturing facilities in secure areas of the correctional facility at which inmate workers were provided tools and equipment. MinnCOR employed non-inmate personnel to supervise inmate workers. The corrections department assigned a guard to circulate among the inmate workers and also assigned a second guard to observe the inmate workers from behind a protective enclosure called the bubble.

On December 3, 1999, appellant was severely injured when he was attacked by inmate Mark Proffit. Proffit was a level six offender at the correctional facility, which is the highest security classification. He had a history of multiple murders and also a history of assaults on guards at the correctional facility. Just prior to December 3, 1999, Proffit was denied parole. Shortly thereafter, the corrections department monitored a phone call between Proffit and his mother as part of a regular security procedure. During this phone call, Proffit indicated he was upset about having been denied parole and expressed his intention to exact revenge within the correctional facility. The corrections department had available as part of its security program a measure to more closely monitor and supervise an inmate suspected of a plan to perpetrate acts of violence. This measure was not utilized with respect to Proffit.

At all times relevant, respondent James Rarick was the Industry Director, respondent Cheryl Sams was the Industry Supervisor, respondent Candace Hogan was the Case Manager, and respondent James Bruton was the Warden at the correctional facility. Appellant alleged that each of respondents and other employees were responsible for providing for his safety and security "through administrative decisions and supervision of [the correctional facility]."

On the day of the attack, the corrections department supervisor of guards, respondent Tom Hell, removed the guard typically assigned to circulate among the inmate workers and directed that guard to give a tour to some civilian visitors. Respondent Charles Ressler was the guard assigned to the bubble the day of the attack, and appellant told Ressler to "watch Proffit, I just wrote him up." Ressler abandoned his post to engage in a personal non-emergency matter, not related to his employment and not in furtherance of his work responsibilities. At that time, Proffit took a heavy wrench and attacked appellant, severely beating him, causing grave bodily injury. Proffit was eventually restrained.


When reviewing the dismissal of a claim under Minn. R. Civ. P. 12, for failure to state a claim on which relief can be granted, the only issue for the reviewing court to decide is whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997). For a rule 12 motion, it is not material whether or not the claimant can actually prove the allegations in the complaint. Martens v. Minnesota Mining & Mfg. Co., 616 N.W.2d 732, 739 (Minn. 2000). If it is legally feasible, on any evidence that might be produced, to grant the relief demanded, then the matter should not be dismissed under rule 12. Id. at 739-40.

Essentially, appellant must show that respondents breached a personal duty to him, as opposed to an employment-created duty. The existence of a legal duty is a question of law, which we review de novo. ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc., 544 N.W.2d 302, 307 (Minn. 1996). As the district court noted in its memorandum, the Minnesota Supreme Court requires an individual injured on the job who is seeking compensation from a co-employee to establish that the co-employee owed and breached a personal duty, in a grossly negligent or intentional manner, causing injury. Wicken v. Morris, 527 N.W.2d 95, 98 (Minn. 1995). It is not enough that the injured party alleges simply that the co-employee's conduct amounts to gross negligence. The individual must first identify and allege that the co-employee owed and breached a personal duty, as opposed to a duty arising by way of the co-employee's work responsibilities, in order to state a legally cognizable claim against that co-employee. Id. at 98-99. When the allegations surround claims that the co-employee failed to meet responsibilities arising solely out of that co-employee's employment status, those allegations are subsumed by the exclusivity provision of the workers' compensation statute. Id.

Generally, Minnesota law does not impose a duty on an individual to prevent the intentional act of a third party:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless


(a)               a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or


(b)              a special relation exists between the actor and the other which gives rise to the other a right to protection.


Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996), (quoting Restatement (Second) of Torts 315 (1965)). This "special relationship" includes those who have custody of a person known to have dangerous propensities. Delgado v. Lohmar, 289 N.W.2d 479, 483-84 (Minn. 1979). Thus, respondents arguably had a special relationship with appellant and owed him a duty to protect him from the intentional conduct of Proffit.

It is only by way of respondents' employment, however, that the requisite "special relationship" exists. The allegations in appellant's complaint focus on respondents' recklessness in carrying out their employment responsibilities. The allegations arguably satisfy one of the requirements for a viable lawsuit against a co-employee for a work related injury appellant alleges that respondents behaved in a grossly negligent manner in allowing the attack to occur. The complaint says nothing, however, about the second requirement alleging respondents breached a personal duty owed to appellant resulting in his injuries. Appellant's complaint focuses not on the type of duty allegedly breached, but instead on the degree to which that duty was allegedly breached.

Appellant's complaint alleges that respondents failed to do their jobs. When this occurs, an individual's recovery is limited to compensation under the workers' compensation system. Wicken, 527 N.W.2d at 98-99. Allegations that an individual failed to adequately perform his job do not take the claim outside the parameters of the workers' compensation system. The workers' compensation system embodies the legislature's recognition that workplace injuries deserve separate and distinct treatment under the law. Id. None of respondents had an obligation to guard against Proffit's attack except by way of their employment status. Johnson 553 N.W.2d at 49. The district court correctly ruled that appellant's complaint failed to allege that any of the individual respondents breached a personal duty, as required by Minnesota law. Wicken, 527 N.W.2d at 98-99. Having determined that the complaint failed to allege a breach of a personal duty, we need not address the issue of whether the complaint sufficiently alleges gross negligence in the breach of any such duty.

The district court also ruled that appellant's allegations against the corrections department and MinnCOR likewise must be dismissed because these were based on vicarious liability theories, and without any individual liability, no entity could be held vicariously liable. This is the correct determination. The district court properly ruled that counts 2 and 3 of appellant's complaint must be dismissed.

We are mindful of the procedural posture of this case, and we note that dismissal under rule 12 must be used cautiously. Under the circumstances involved here, however, the district court correctly dismissed appellant's complaint. Respondents would not normally have a responsibility to prevent Proffit's attack; that responsibility arose only by way of their employment. Appellant does not have a legally viable claim under Minnesota law.