This opinion will be unpublished and

may not be cited except as provided by

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








Timothy Gutierrez as trustee for the heirs and next of kin

of Thomas Gutierrez,





Eckert Farm Supply, Inc.,




Filed July 1 , 2003


Motion to strike granted and motion for sanctions denied

Robert H. Schumacher, Judge


Renville County District Court

File No. C001116



Ronald H. Schneider, Dawn M. Weber, Schneider Law Firm, 706 South First Street, Post Office Box 776, Willmar, MN 56201 (for appellant)


Michael D. Tewksbury, Keith J. Kerfeld, Darin S. Wieneke, Tewksbury Kerfeld Zimmer, 88 South Tenth Street, Suite 300, Minneapolis, MN 55403; and


Raphael J. Miller, Miller Law Office, 332 Sibley Avenue, Post Office Box 447, Gaylord, MN 55334 (for respondent)



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

U N P U B L I S H E D   O P I N I O N


            Appellant Timothy Gutierrez, as trustee for the heirs and next of kin of Thomas Gutierrez, challenges the district court's grant of summary judgment to respondent Eckert Farm Supply, Inc., arguing that respondent owed a duty to decedent to protect him from the acts of a third party.  We affirm and grant respondent's motion to strike portions of appellant's brief and appendix but decline to impose sanctions.


            Respondent owns a building located in Olivia known as the Big Motor Inn (the Inn).  Prior to respondent's purchase of the Inn in 1999, it was used exclusively as an apartment building.  William Eckert, who managed the Inn, testified that respondent continued to operate it as an apartment building at all times after the change in ownership. 

            Decedent lived at the Inn for approximately two months before his death.  The parties dispute whether he was a tenant, with the Inn being his primary residence, or whether the Inn operated as a hotel and he was merely a guest. 

            The events of July 31 and August 1, 2000, are not substantively disputed.  On July 31, a resident at the Inn, Maria Martinez, was having a party at which she was drinking with her roommate, Leslie Cherry, her son, Santos Martinez, Jr., and others.  Decedent approached the group and took a twelve-pack of Martinez's beer, claiming "she owed him."  Shortly thereafter, Martinez and Martinez Jr. decided to get the beer back and went to decedent's apartment.  After arriving, an argument ensued, and eventually Martinez punched decedent twice.  Martinez Jr. left decedent's apartment but returned shortly thereafter with a gun that he pointed at decedent.   Martinez told her son to get rid of the gun.  Martinez and Martinez Jr. subsequently left. Martinez went downstairs to her apartment, where she continued drinking and eventually fell asleep.  Her daughter later arrived to tell her that someone had shot decedent.  Martinez told a police investigator that Martinez Jr. had admitted to her that after she had left he confronted decedent, the two of them again argued, and Martinez Jr. shot decedent. 

            Decedent's brother, Timothy Gutierrez, commenced this wrongful death action against respondent and William Eckert, d/b/a Big Motor Inn.  The district court granted respondent's motion for summary judgment, finding that Minnesota does not impose a duty on a landlord to protect its tenants from a third party's criminal acts and that no special relationship existed between the decedent and respondent. 


            We review a district court's grant of summary judgment to determine whether there are any genuine issues of material fact and whether the district court erred in applying the law.  H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996).  We view the evidence in the light most favorable to the party against whom summary judgment was granted, and any doubts about the existence of a material fact are resolved in that party's favor.  Id

            A defendant in a negligence action is entitled to summary judgment if the record indicates a lack of proof on any of the four requirements of the negligence cause of action:

(1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of the duty being the proximate cause of the injury.


Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001) (citation omitted).

            The existence of a legal duty is generally an issue for the court to decide as a matter of law.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).  Whether a duty exists depends on the relationship between the parties and the foreseeability of harm to others.  Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn. 1989).  Public policy is a major consideration in identifying the legal-duty element of a negligence cause of action.  Id. at 169.  Without a persuasive showing that respondent owed a legal duty to decedent, appellant's negligence claim must fail.  Funchess, 632 N.W.2d at 672.

            1.         Appellant argues that respondent breached a duty of care that it owed decedent by failing to protect him from a third party who posed a known danger to him.  Appellant maintains that Martinez was an agent of the Inn and acted negligently by failing to control her son, Martinez Jr., by failing to call the police after Martinez Jr. initially pointed a gun at decedent, and by not taking other pre-emptive steps to avoid the homicide. 

The general common law rule is that no person has a duty to protect another from harm caused by a third party's conduct.  Funchess, 632 N.W.2d at 673; Restatement (Second) of Torts, § 314 (1965).  But there are exceptions where a duty to protect may be found, such as the innkeeper-guest, common carrier-passenger, and hospital-patient relationships.

If the law is to impose a duty on A to protect B from C's criminal acts, the law usually looks for a special relationship between A and B, a situation where B has in some way entrusted his or her safety to A and A has accepted that entrustment.  This special relationship also assumes that the harm represented by C is something that A is in a position to protect against and should be expected to protect against.


Erickson, 447 N.W.2d at 168; see also Restatement (Second) of Torts § 314A (1)-(2) (1965) (noting that common carriers and innkeepers owe a reasonable duty to protect their customers from harm). 

            The district court held that decedent was not "a guest in a hotel but, rather, a tenant in an apartment house."  Because no special relationship exists between a landlord and a tenant, the court held that respondent did not have a duty to protect decedent from third parties.  Appellant claims that the district court erred by characterizing decedent's relationship with respondent as landlord-tenant and not innkeeper-guest.   

            In Asseltyne v. Fay Hotel, 222 Minn. 91, 23 N.W.2d 357 (1946), the plaintiff sued the hotel to recover the loss of her belongings destroyed in a fire.  Id. at 94, 23 N.W.2d at 360.  The plaintiff alleged that because she was a transient guest staying in the hotel only while she was a teacher in the area, she and the hotel were in an innkeeper-guest special relationship.  Id.  Disagreeing with the plaintiff's characterization of the relationship, the supreme court examined the nature of inns and hotels on the one hand, and boarding, lodging, or rooming houses on the other:

The principal distinction is that in the case of houses of the latter class, the proprietor deals with his customers individually with respect to terms and accommodations and exercises the right to reject any or all applicants at his pleasure, while in the case of inns and hotels the proprietor deals with the public generally on the basis of an implied contract and may not arbitrarily refuse to receive as a guest one who is entitled to be so received * * * .  * * * it is difficult, if not impossible, to define with precision who is a guest as distinguished from a boarder.  It is rather a question of fact in each case to be ascertained by a consideration of all the circumstances thereof.  The length of the stay, the existence of a special contract, the rate or method of payment, and the possession or nonexistence of a home or permanent residence elsewhere are all material, but not necessarily controlling, factors to be considered in determining the question.


Id. at 98-99, 23 N.W.2d at 362 (quotation omitted).  Because the plaintiff had a long-term contract with the hotel and because she intended to stay there for the school year, Asseltyne was not a transient guest, and the hotel owed a lesser duty to her.  Id. at 98, 23 N.W.2d at 362 (stating that "[n]either the length of time one remains nor any agreement as to price of accommodations necessarily deprives one of his status as guest").

            The burden is on appellant to prove that the relationship of innkeeper and guest existed between decedent and respondent.  Id. at 97, 23 N.W.2d at 361.  Appellant points to the following factors as evidence that decedent was a hotel guest and not a tenant in an apartment building: (1) his permanent residence was with his brother, where he had lived off and on for a period of months; (2) not all of decedent's personal belongings were in his room at the Inn; (3) decedent had lived at the Inn only for a short period of time; (4) the Inn held itself out to the public as an inn, rented a room to appellant's investigator for a single night, and had signs displaying a check-out time on the unit doors; (5) decedent had no lease or written rental arrangement with the Inn; (6) it is disputed whether decedent paid any amount to live at the Inn; and (7) Martinez and her roommate had master keys to all of the Inn's rooms and accepted payment from the residents on behalf of William Eckert. 

            We do not find appellant's arguments persuasive.  Respondent's treatment of other individuals staying at the Inn or how the Inn held itself out to the public is not controlling.  Asseltyne mandates that respondent's legal duty to the decedent depends on the relationship between the parties.  Id.  In addition, even if respondent treated some Inn residents as transient occupants, that does not necessarily create an innkeeper-guest relationship with all those who occupy rooms.  Id. at 95, 23 N.W.2d at 360 (holding that "business of a hotel and that of a boardinghouse and lodging house may be carried on in the same building").  

            Minnesota law defines a hotel as

a hotel, motel, resort, boarding house, bed and breakfast, furnished apartment house or other building, which is kept, used or advertised as, or held out to the public to be, a place where sleeping or housekeeping accommodations are supplied for pay to guests for transient occupancy.


Minn. Stat. § 327.70, subd. 3 (2002) (emphasis added).  "Transient occupancy" means

occupancy when it is the intention of the parties that the occupancy will be temporary. There is a rebuttable presumption that, if the unit occupied is the sole residence of the guest, the occupancy is not transient. There is a rebuttable presumption that, if the unit occupied is not the sole residence of the guest, the occupancy is transient.


Id. at subd. 5 (2002). 

            Although there is evidence in the record that decedent had previously lived with appellant, there is no evidence that decedent intended to move out of the Inn or that he considered appellant's house his primary residence.  Appellant testified that decedent lived with him for about four to six months in 1997 when he first moved to Minnesota, and thereafter he lived at the Inn for "months on end."  Appellant retrieved decedent's personal belongings from the Inn, and there is no evidence that decedent had personal belongings anyplace other than at the Inn.

            There is evidence that decedent paid rent.  Eckert testified that he originally found decedent living at the Inn during the summer of 2000 and told him that in order to live at the Inn, he needed to pay rent.  According to Eckert, decedent thereafter repeatedly promised to pay rent.  Although the record is unclear as to whether such payments were in fact made, appellant testified that in one instance he gave decedent $5 after decedent indicated that he had recently paid his rent and that he was in need of money.  The only evidence regarding residency indicates that the Inn was decedent's sole residence; there is no evidence that the occupancy was transient.  We conclude there was no special relationship between respondent and decedent. 

            2.         Alternatively, appellant claims that even if no special relationship existed, a duty nevertheless arose because respondent should have foreseen the danger posed to decedent.  A duty to protect decedent may be imposed if decedent entrusted his safety to respondent, respondent accepted that entrustment, and respondent was in a position (and expected) to protect decedent from criminal attack.  Funchess, 632 N.W.2d at 673.  This duty is most justifiably imposed on "persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection."  Donaldson v. Young Women's Christian Ass'n of Duluth, 539 N.W.2d 789, 792 (Minn. 1995) (citation omitted).  Typically, the plaintiff in such a case is vulnerable and particularly dependent on the defendant who recognizes such dependence and has power over the plaintiff's welfare.  Id. (citing W. Page Keeton, Prosser and Keeton on the Law of Torts, § 56, at 374 (5th ed. 1984)). 

            Appellant has not satisfied the first two elements of the Funchess test because he has failed to present a genuine issue of material fact that decedent entrusted his safety to respondent or that respondent accepted that entrustment.  Appellant argues that respondent breached its duty of care toward decedent because Martinez (1) provided alcohol to and drank beer with Martinez Jr., (2) engaged in an altercation with decedent earlier that night, (3) witnessed Martinez Jr. point a gun at decedent hours before the murder, and (4) returned to her residence without making any attempt to remove Martinez Jr. from the premises, disarm him, or call the police.

            Appellant has not raised an issue of material fact regarding Martinez’s employment status as an agent for respondent.  Martinez gave conflicting statements concerning her relationship with respondent.  She first told police that she was the "manager of the apartment building" and that she and Cherry occasionally accepted rent payments from residents on William Eckert's behalf.  But Martinez later testified under oath that she was never an employee of the Inn, respondent, or William Eckert.  Cherry testified that Martinez never had an employment relationship with the Inn.  William Eckert also testified that he was the manager and only employee of the Inn and that he never employed Martinez. 

            Even viewed in the light most favorable to appellant, there is no evidence that decedent entrusted his safety to Martinez and that she accepted such entrustment.  Martinez testified that decedent did not express a concern for his safety or request that the Inn provide him with additional security to ensure that he would be adequately protected.

            Furthermore, the Funchess type of duty is usually reserved for particularly vulnerable persons, and there is no evidence that decedent was unusually vulnerable or in need of special protection.  It is significant to note that even if Martinez was in a position to prevent decedent's death, it does not render respondent liable.  See Funchess, 632 N.W.2d at 674 (noting that courts are "generally cautious and reluctant to impose a duty to protect between those conducting business with one another") (citation omitted).  Appellant has not demonstrated that decedent was unusually vulnerable, that he entrusted his safety to respondent, or that respondent undertook to provide such safety. 

3.         Respondent filed a motion to strike portions of appellant's brief and appendix as outside the record on appeal and to strike part of appellant's brief as raising new issues for the first time on appeal. 

            We generally consider only issues that the record shows were presented to, and considered by, the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).   Under the rules of appellate procedure, the record on appeal is comprised of the "papers filed in the trial court, the exhibits, and the transcript of the proceedings."  Minn. R. Civ. App. P. 110.01.  A party may prepare a supplemental record to provide relevant pieces of the record that are not in the appendices to the briefs.  Minn. R. Civ. Appp. P. 130.03.  But in so doing, a party may not change the overall record on appeal.  Funchess, 632 N.W.2d at 673.

            In this case, appellant submitted only selected parts of depositions to the district court in its memorandum opposing summary judgment.  The record does not contain depositions, including the entire deposition of Cherry and nearly all of Martinez's deposition testimony that appellant provided in his appendix.  Respondent also argues that other pages of appellant's brief should be stricken.

            Appellant points to respondent's own memorandum in support of summary judgment as concluding that the entire deposition transcripts are part of the record.  Furthermore, appellant claims that the note to Minn. R. Civ. Pro. 5.04, supports his argument.  That comment states that a party need not file entire depositions with the district court unless ordered by the court.  Id.  Instead, the party may incorporate such documents when necessary by including relevant portions with any briefs, affidavits, or motions.  Id

            But neither rule 5.04 nor respondent's summary-judgment brief alters the general maxim that we review only materials that the district court had an opportunity to examine.  Thiele, 425 N.W.2d at 582.  Furthermore, the comment to rule 5.04 states that, for convenience, a party may submit relevant portions of a deposition for consideration, as appellant did here.  But rule 5.04 does not allow a party to submit other parts of those same documents on appeal.  Because appellant did not submit all of the depositions contained in appellant's appendix to the district court at the time the court considered respondent's summary-judgment motion, we strike it from the record. 

            Respondent also argues that appellant has interjected new issues on appeal that should not be considered by this court because they were not raised to the district court at the time of summary judgment.  These issues include whether respondent owed a duty, as a possessor of land, to protect decedent from the criminal behavior of Martinez Jr., whether respondent breached a statutory duty of safety under Minn. Stat. § 504B.171 (2002), and whether Martinez, as landlord of the Inn, owed a duty to decedent to warn him about abnormally unsafe conditions on the premises.  Because these arguments were not made to the district court for summary-judgment purposes, they are not properly before this court.  Respondent's motion to strike is granted.  In addition, while it is true that appellate courts may review any matter in their discretion as justice requires, Minn. R. Civ. App. P. 103.04, appellant has not shown that the panel's failure to address these arguments would lead to a deprivation of justice. 

            4.         Respondent has also moved this court to impose sanctions on appellant for violating Minn. R Civ. App. P. 128 by inadequately citing to portions of the record or appendix as support for its assertions and by failing to include certain documents in its appendix as required by Minn. R. Civ. App. P. 130.01, subd. 1.

            Whenever a brief references a part of the record, the party must cite with specificity where to find such information.  Minn. R. Civ. App. P. 128.03.  Appellant cited to its appendix sufficiently for this court to determine the accuracy of its factual assertions.  The failure of appellant to include in his appendix all materials that he submitted to the district court for summary judgment purposes is not an appropriate basis for sanctions.

            Finally, appellant's inclusion of multiple pages in his appendix that were not considered by the district court is also not sanctionable behavior under these facts.  It appears that appellant genuinely believed that respondent had conceded that all the depositions were part of the record in its summary-judgment memorandum to the district court.  In addition, the committee note to Minn. R. Civ. P. 5.04 could legitimately be construed as allowing only the inclusion of specified pages of depositions with a particular motion rather than attaching the entire deposition transcript. We deny respondent's motion for such sanctions. 

            Affirmed; motion to strike granted and motion for sanctions denied.