This opinion will be unpublished and

may not be cited except as provided by

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







D.E.L. and P.E.L., as parents and natural guardians of

J.D.L., a minor, and M.A.L., a minor, and

D.E.L. and P.E.L., individually,





Blue Earth County, through its agents and employees including its

Department of Human Services,



Filed April 6, 2004


Lansing, Judge


Blue Earth County District Court

File No. C7-01-1247



Sharon L. Van Dyck, Schwebel, Goetz & Sieben, P.A., 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402-2246; and


Kristen L. Rebers-Rice, Eckman, Strandness & Egan, P.A., 319 Barry Avenue South, Wayzata, MN  55391-0597 (for appellants)


Stephen G. Andersen, Mark J. Girouard, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            On appeal from summary judgment in this negligence action, D.E.L. and P.E.L. challenge the district court’s conclusions that Blue Earth County does not owe them, as foster parents, a legal duty of care when placing foster children in their home and that the county is protected from liability under the doctrine of official immunity.  Because we conclude that on these facts the county did not owe D.E.L. and P.E.L. a legal duty of care, and that the county is entitled to official immunity for its discretionary decisions and conduct, we affirm.


D.E.L. and P.E.L. became licensed foster care providers for Blue Earth County in 1998.  In March 1999, D.E.L. and P.E.L. agreed to provide foster care for siblings T.H., D.W., and T.W.  Initially, the county informed D.E.L. and P.E.L. that the children had behavioral problems, that their housing was inadequate, that their mother abused alcohol and drugs, and that T.W. has an attention deficit disorder.  The county was aware, however, that T.W. also had a history of physically aggressive and emotionally disturbed behavior.  While caring for the children, P.E.L. observed behavior that prompted her to ask the county case manager in charge of supervising their foster care arrangement if any of the foster children have a history of sexual abuse.  The case worker advised P.E.L. that she was not aware of any sexual abuse in their history.

In July 1999, P.E.L. heard T.W. tell P.E.L.’s biological son “I’m going to give a clue about ticklish.”  When she asked what that meant, T.W. and her son claimed they did not know.  Over the course of the next year, P.E.L. heard T.W. say this phrase to her children approximately five times.  The children always refused to disclose what the phrase meant when P.E.L. inquired about it.

Due to T.W.’s increasingly problematic behavior, D.E.L. and P.E.L. decided T.W. was no longer a good fit in their home.  In July 2000, P.E.L. left a message for the case manager to remove T.W. from their foster care.  When P.E.L.’s son learned that T.W. was being removed from their home, he confided that “ticklish” meant T.W. had been touching him in inappropriate places, and that he was forced to touch T.W. in the same manner.   Approximately ten days later, D.W. disclosed that T.W. had penetrated two of D.E.L. and P.E.L.’s biological children. 

Criminal charges were filed against T.W., and he pleaded guilty to third-degree criminal sexual conduct.  D.E.L. and P.E.L. filed a negligence suit against the county.  The county moved for summary judgment on the grounds that it did not owe D.E.L. and P.E.L. a legal duty of care and, even if they did have a duty, official immunity protected the county from liability.  The district court issued an order denying summary judgment.  At the request of counsel, the district court issued an amended order that granted partial summary judgment on the issue of whether the county had official immunity for its decision to place T.W. with D.E.L. and P.E.L. 

The county moved to reconsider the summary judgment issues.  The district court granted the county’s request to reconsider and allowed the parties to file additional arguments addressing the summary judgment issues.  The district court then granted the county summary judgment on all issues, concluding that the county did not owe a duty to warn or a special assumed duty to D.E.L. and P.E.L., and that even if there were such a duty, the county is immune from liability for these claims under the doctrine of official immunity.  This appeal followed.


On appeal from summary judgment, we determine whether the case raises genuine issues of material fact and whether the district court erred in its application of the law.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997); Minn. R. Civ. P. 56.03 (stating district court standard for summary judgment).  While we view the evidence in the light most favorable to the nonmoving party, summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986) (applying same principle to federal procedural issue).


            A defendant in a negligence action is entitled to summary judgment when the record reflects a complete lack of proof on any of the four elements necessary for recovery: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) the breach of duty being the proximate cause of the injury.  Lubbers, 539 N.W.2d at 401.  The duty to exercise care is dictated by the exigencies of the occasion, and if no harm is foreseeable, there can be no negligence.  Austin v. Metro. Life Ins. Co., 277 Minn. 214, 217, 152 N.W.2d 136, 138 (1967).  Existence of a duty in analyzing a negligence claim is a question of law that we review de novo.  H.B. by Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996).

In the district court, D.E.L. and P.E.L. argued that the county had a duty to warn them about the threat T.W. posed to their children or, in the alternative, that the county owed them a special duty of care as foster parents.  On appeal, D.E.L. and P.E.L. argue for the first time that the county had a duty to control T.W. because he was in the county’s custody.  Although an appellate court ordinarily will not consider issues raised for the first time on appeal, Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988), because the duty-to-control argument is related to the other arguments, we address all three claims.

At common law, there is generally no duty to prevent the misconduct of a third person.  Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 804 (Minn. 1979).  But a special duty to control the conduct of a third person to prevent him from causing physical harm may arise if  (1) “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 (2) “a special relation exists between the actor and the other which gives to the other a right to protection”  Id. (quoting Restatement (Second) Torts § 315 (1965)).  “Implicit in the duty to control is the ability to control.”  Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984) (emphasis omitted).  But even if the ability to control another's conduct exists, there is no duty to control that person unless the harm is foreseeable.  Id. at 28. 

In determining whether a danger of injury is foreseeable, courts must consider whether it is objectively reasonable to expect that the specific danger will result in injury, “not simply whether it was within the realm of any conceivable possibility.”  Whiteford by Whiteford v. Yamaha Motor Corp. U.S.A., 582 N.W.2d 916, 918 (Minn. 1998).  Foreseeability is generally a threshold legal question for the court to decide.  Cooney v. Hooks, 535 N.W.2d 609, 612 (Minn. 1995).

D.E.L. and P.E.L. assert that a special relationship existed between the county and T.W. because the county had custody of T.W., the ability to control T.W.’s placement in foster care, and the county knew, or should have known, that T.W. posed “a significant risk of bodily harm” to D.E.L. and P.E.L.’s biological children. 

            While the county had custody of T.W. and the ability to control T.W.’s placement, the county had no ability to control T.W.’s behavior once he was placed in D.E.L. and P.E.L.’s home.  Rather, as foster parents, D.E.L. and P.E.L. had the ability to control T.W.’s behavior in their home.  Prior to caring for T.W., D.E.L. and P.E.L. received the county’s foster care manual, which states that “[f]oster providers provide the day to day care and guidance for the individuals in their care.”  The manual also states that “[i]n providing day-to-day care, it is [the county’s] expectation that a foster provider or a designated responsible adult be present or aware of the child’s activities and whereabouts at all times . . . .”  The county assigned the ability to control T.W.’s daily behavior to D.E.L. and P.E.L., as his foster parents.

In addition, T.W.’s sexual abuse of D.E.L. and P.E.L.’s children was unforeseeable.  The county had no information that would make this tragic occurrence more foreseeable to it than it was to D.E.L. and P.E.L.  There is no evidence in the record that shows T.W. had ever previously committed sexual abuse, or that he had the propensity to commit sexual abuse.  Thus, the county did not have a duty to control T.W. while he was in D.E.L. and P.E.L.’s foster care.

D.E.L. and P.E.L. also argue that the county had a duty to warn them about any potential harm posed by T.W.  The Minnesota Supreme Court has said that a duty to warn exists “only when specific threats are made against specific victims.”  Cairl v. Connolly, 323 N.W.2d 20, 26 (Minn. 1982).  In this case, there is no evidence that T.W. ever threatened D.E.L. or P.E.L.’s children.  The district court, therefore, did not err by concluding the county did not have a duty to warn D.E.L. and P.E.L. of any danger T.W. posed to their children.

D.E.L. and P.E.L. argue in the alternative that the county owes them a special duty of care because the county assumed the duty of adequately informing foster parents about a foster child’s history.  Their argument is based on an administrative rule, in effect when these events occurred, that states foster families and the county “must . . . abide by the terms of the Foster Parent Agreement.”  Minn. R. 9545.0100 (2001).  The foster parent agreement states that foster parents may expect the agency to help them “make an informed decision before placement as to the suitability of their home for the particular child” by “[p]roviding any information about the child and his family that is pertinent to the foster parents’ effective carrying out of their role” and by “[d]escribing the behavior patterns, problems and needs of the child.” 

“[O]nce a duty to act for the protection of others is voluntarily assumed, due care must be exercised even though there was no duty to act in the first instance.”  Cracraft, 279 N.W.2d at 806.  There are four factors that should be considered in determining whether a government entity has assumed a special duty:  (1) actual knowledge of the dangerous condition; (2) reasonable reliance by persons on the government’s representations and conduct; (3) the existence of “an ordinance or statute that sets forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole”; and (4) whether there has been a lack of due care by the government which increased the risk of harm.  Id. at 806-07.  Not all four factors must be met for a special assumed duty to exist.  Andrade v. Ellefson, 391 N.W.2d 836, 841 (Minn. 1986).

            No prong of the Cracraft test is met in this case.  First, there is no evidence in the record that the county had actual knowledge that T.W. was harming D.E.L. and P.E.L.’s children.  See Cracraft, 279 N.W.2d at 806 (actual knowledge of a dangerous condition, not mere constructive knowledge, is required to impose a special duty to do something about that condition);  Andrade, 391 N.W.2d at 842 (the existence of “warning flags” is not sufficient to meet the Cracraft test).  Second, D.E.L. and P.E.L. have not identified any specific actions or representations by the county on which they relied.  See Cracraft, 279 N.W.2d at 807 (stating a “reasonable reliance must be based on specific actions or representations which cause the persons to forego other alternatives of protecting themselves”).

            Third, there is no ordinance or statute that sets forth mandatory acts for the protection of foster parents.  D.E.L. and P.E.L. argue that Minn. R. 9545.0150 (2001) created a statutory duty to protect foster families.  This rule, entitled “Training for Foster Care Providers,” states that “foster care providers shall participate in training to develop and enhance their skills” because “[t]he vast majority of children needing placement are children with problems.”  The rule further states that “[t]he intent of an ongoing training program is to build on the foster parents’ initial interest in providing service and to maximize their ability to provide the highest quality services to children.  The aim of this training is to transfer information about foster care and foster children.”  Minn. R. 9545.0150.  Rather than creating a statutory duty to protect foster families, the plain language of this rule shows that it was created to ensure foster families receive the training they need to provide suitable care for their foster children.

Finally, D.E.L. and P.E.L. have failed to demonstrate how the county increased the risk of harm to their children.  The county did not have or withhold specific information of a dangerous condition.  There is no evidence that the information the county had about T.W.’s past aggressive or emotionally disturbed behavior affirmatively increased the risk of harm to D.E.L. and P.E.L.’s children.  Because D.E.L. and P.E.L. failed to meet any prong of the Cracraft test, the district court correctly concluded that the county did not assume a special duty of care in this case.



            The common law doctrine of official immunity protects government officials from suit for discretionary actions taken in the course of their official duties.  Janklow v. Minn. Bd. of Examiners for Nursing Home Adm’rs, 552 N.W.2d 711, 716 (Minn. 1996).  Official immunity applies when the official’s conduct involves the exercise of judgment or discretion.  Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988).  The critical issue in a claim of official immunity is whether the public official’s conduct is discretionary or ministerial.  Id.  A discretionary act involves the exercise of individual judgment in carrying out the official’s duties.  See Janklow, 552 N.W.2d at 716.  In contrast, a ministerial act is “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.”  Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937) (citation omitted).

D.E.L. and P.E.L. argue the county is not entitled to official immunity for deciding to place the children in their home.  But the county’s decision to place T.W. and his siblings in D.E.L. and P.E.L.’s home was a discretionary act.  The county employee who initially placed T.W. and his siblings in D.E.L. and P.E.L.’s home stated in her deposition that she asked them to provide foster care for the children because (1) they were willing to take a group of siblings; (2) they had experience with providing foster care to teenagers so they were probably willing to care for older children; (3) P.E.L. had a great deal of child-care experience from operating a daycare in her home; (4) they had a lot of “parenting experience”; (5) they were very committed to their first foster child; and (6) they would do a “good job.”  Because the county employee exercised judgment and discretion in deciding to ask D.E.L. and P.E.L. to care for the children, the act of placing the children with D.E.L. and P.E.L. is protected by official immunity.

D.E.L. and P.E.L. also argue that the county is not entitled to official immunity for failing to abide by the terms of the foster parent agreement.  When P.E.L. asked the county if there was a history of sexual abuse among T.W. and his siblings, the county answered that it was not aware of any history of sexual abuse in T.W.’s family.  That information, apparently accurate and arguably ministerial, was pertinent to D.E.L. and P.E.L.’s making an informed decision as to the suitability of their home for T.W.  But D.E.L. and P.E.L. were not seeking additional information on T.W.’s aggressive or emotional behavior, but on any history of sexual abuse.  Therefore, the county’s decision not to provide D.E.L. and P.E.L. information related to T.W.’s past aggressive and emotional behavior was a reasonable exercise of discretion that entitles the county to official immunity.  Thus, even if the county had owed D.E.L. and P.E.L. a legal duty of care, the county is entitled to official immunity.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.