This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Hennepin County District Court
File No. WD009635
Gregory S. Malush, Adam C. Wadd, Milavetz, Gallop & Milavetz, P.A., 1915 57th Avenue North, Brooklyn Center, MN 55430 (for appellants)
Stephen M. Warner, O’Neill & Murphy, L.L.P., 1250 World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for respondents)
Considered and decided by Stoneburner, Presiding Judge; Schumacher, Judge; and Forsberg, Judge.*
In this wrongful-death action brought by the trustees for the heirs of the decedent, the district court granted summary judgment to Greyhound Bus Lines, Inc. (Greyhound), concluding that Greyhound could not have reasonably foreseen decedent’s murder under the circumstances and therefore owed him no duty of protection from the criminal acts of third parties. Appellants argue that the district court erred by granting summary judgment, asserting that Greyhound could foresee, and therefore had a duty to protect decedent from, the criminal acts of third parties. Appellants also claim that there are genuine issues of material fact making the grant of summary judgment improper. Because the district court properly concluded that the criminal acts of the third parties were not reasonably foreseeable and that there were no genuine issues of material fact, we affirm.
On the evening of January 24, 2000, Michael Warren, Jr. (decedent) went to the Greyhound bus terminal in Minneapolis to take the bus to Chicago. Two of decedent’s roommates and one other acquaintance, Marvin Pate, Jr. (Pate), Ernest Moore (Moore), and Lovell Ross (Ross), discovered that decedent had taken some of their property from the apartment and went to the Minneapolis terminal to retrieve the allegedly stolen property.
When they arrived at the terminal, they parked their car in an unauthorized area and began opening the baggage compartments of the Chicago-bound bus. When two Greyhound employees, the terminal supervisor and the customer-service representative, confronted the three men, the three men explained that one of the passengers had stolen from them and that one of the bags in the luggage compartment contained the stolen property. The terminal supervisor got on the bus and announced that someone was taking a black duffle bag from the luggage compartment, but none of the passengers responded. The customer-service representative asked the three men to identify the person who they believed had taken their property. Pate and Moore boarded the bus in the company of the customer-service representative, but did not identify anyone. Pate told the terminal supervisor that finding the bag “saved [decedent’s] life.” As they were walking away from the bus, the terminal supervisor heard one of three men say that he saw decedent on the bus. After Moore had taken the black duffle bag and put it in his car, the customer-service representative asked the bus passengers if any of them had a bag like the one that was taken, but again, none of the passengers responded. After the three men drove off, the bus was cleared to leave the terminal.
When the bus arrived at the St. Paul terminal, additional passengers boarded. The bus driver went inside the terminal to count tickets for the new passengers and left the bus unattended with the door open for five to six minutes. Meanwhile, Pate, Moore, and Ross drove to an unidentified residence in St. Paul, switched cars, and got a gun. They drove to the St. Paul terminal and parked on the street. One of the men got out of the car and boarded the bus with a scarf pulled over his face. The bus driver got back onto the bus and looked to the rear of the bus to make sure everyone was seated. A few seconds later, the man who had gotten on the bus with the scarf over his face shot decedent in the head at close range and killed him.
Appellants brought this wrongful-death action against Greyhound to recover damages for the death of decedent, their son. Appellants allege in their complaint that Greyhound owed decedent a duty “to discover that the intentional, harmful act of a third person was being committed or was likely to be committed, give adequate warning to enable passengers, such as [decedent], to avoid harm; and otherwise institute reasonable security procedures to protect its passengers such as [decedent] against harm.”
Greyhound moved for summary judgment, arguing that decedent’s murder was not reasonably foreseeable under the circumstances, and therefore, Greyhound owed no duty to decedent to protect him from the criminal acts of third parties. The district court granted summary judgment to Greyhound and dismissed appellants’ claims with prejudice. Appellants moved the district court for reconsideration, which the district court denied. This appeal followed.
On appeal from summary judgment, a reviewing court asks 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). A reviewing court views the evidence in the light most favorable to the nonmoving party. Fabio v. Bellomo, 504
N.W.2d 758, 761 (Minn. 1993). The party against whom judgment was granted must do more than rest on mere averments. DLH v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). A genuine issue for trial must be established by substantial evidence. Id. at 69-70. The parties agree that no underlying material facts are in dispute, but appellants assert that foreseeability, essential to give rise to a duty on the part of Greyhound, is a fact question for the jury and that the district court erred by concluding, as a matter of law, that decedent’s murder in St. Paul was not foreseeable under the circumstances.
To establish a claim of negligence, a plaintiff must show a duty of care, a breach of that duty, causation, and injury. Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 156 (Minn. App. 1993), review denied (Minn. July 15, 1993). If the record lacks proof on any of the requirements of a negligence claim, a defendant is entitled to summary judgment. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001).
Generally, the existence of a legal duty is an issue for the courts to decide as a matter of law. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985). Whether a legal 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). Without a persuasive showing that a defendant owed a legal duty to the injured party, a plaintiff’s negligence claim must fail. Funchess, 632 N.W.2d at 672.
Appellant argues that Greyhound breached its duty to decedent by failing to protect him from third parties who posed a danger to him. Appellant maintains that Greyhound was aware of the danger posed by third parties and acted negligently by failing to provide greater security at the St. Paul terminal.
The general common-law rule is that no person has a duty to protect another from harm caused by a third party’s conduct. Id. at 673. But a duty to protect may be found when a special relationship exists between the parties, such as the common-carrier-passenger relationship. Erickson, 447 N.W.2d at 168. In this case, it is undisputed that Greyhound is a common carrier and that decedent was a Greyhound passenger at the time he was shot and killed. But even when a special relationship exists, the legal duty to protect only applies to foreseeable acts. Spitzak, 500 N.W.2d at 158.
Appellants claim that the district court improperly decided whether the third parties’ conduct was foreseeable and should have instead submitted that question to the jury. Generally, the issue of foreseeability is for the trial court to decide. Larson, 373 N.W.2d at 289.
The foreseeability issue, as a threshold issue, is more properly decided by the court prior to submitting the case to the jury . . . . To the extent our prior case law speaks of “foreseeability” as an element of the cause of action, we were only discussing foreseeability in the context of whether a legal duty arises, not as something on which the jury should be instructed.
Alholm v. Wilt, 394 N.W.2d 488, 491 n. 5 (Minn. 1986). But the supreme court has also stated that “[i]n close cases, the question of foreseeability is for the jury.” Whiteford v. Yamaha Motor Corp., 582 N.W.2d 916, 918 (Minn. 1998). Because we conclude that foreseeability was not a close case given the undisputed circumstances of decedent’s murder, the district court did not err by deciding as a matter of law that the murder was not foreseeable in this case.
In a negligence action, a criminal act of a third party generally serves as an intervening cause sufficient to break the chain of causation. Hilligoss v. Cross Cos., 304 Minn. 546, 547, 228 N.W.2d 585, 586 (1975). But if the third person’s criminal act was foreseeable, it does not break the chain of causation. Id. The test of foreseeability is whether a defendant was aware of facts suggesting that a plaintiff was being exposed to an unreasonable risk of harm. Spitzak, 500 N.W.2d at 158. “In determining whether a danger is foreseeable, courts look at whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility.” Whiteford, 582 N.W.2d at 918.
Appellants argue that the events at the Minneapolis terminal put Greyhound on notice that decedent was being exposed to an unreasonable risk of harm from the three perpetrators. At the Minneapolis terminal, the three men told Greyhound employees that they wanted to retrieve a bag that they claimed had been stolen from them. When the men retrieved the bag, they left the terminal. Furthermore, the two Greyhound employees told the passengers that someone was taking a bag from the baggage compartment and no one responded. Even after the three men identified decedent on the bus at the Minneapolis terminal, they got into their car and left. Therefore, it was reasonable for the Greyhound employees to believe that the incident was over. It was not foreseeable under the circumstances that the three men would drive to the St. Paul terminal and murder decedent.
Appellant also argues that Greyhound was aware of escalating violence at the St. Paul terminal based on increased police calls to the area since the terminal moved to that location in 1998. But Greyhound had never had a violent incident involving its passengers at the St. Paul terminal prior to this one. In fact, there were only three reports of assaultive behavior on or near the premises of the St. Paul terminal during Greyhound’s occupancy.
Contrary to appellant’s assertions, the facts of this case are easily distinguishable from the facts of Erickson, which involved the plaintiff being raped in the parking ramp where she had a contract to park her car. In that case, the supreme court focused on the physical characteristics of the parking ramp as causing a “unique opportunity for criminals and their criminal activities, an opportunity which to some degree is different
from that presented out on the street and in the neighborhood generally.” Erickson, 447 N.W.2d at 169. The court determined that the ramp provided “places in which to hide or lurk, especially if the interior is dimly lit” and that the ramp was “relatively deserted.” Id.
Here, the physical characteristics of the St. Paul terminal do not provide hiding places, and it is not deserted. At the time of this incident, it was standard operating procedure for bus drivers to leave the buses unattended at the St. Paul terminal for a few minutes while they counted the tickets of the new passengers, and, until this incident, no problems had occurred during this brief interval.
Appellants claim that the district court ignored the opinion of their expert witness whose report was an exhibit provided to the district court. Even assuming that the expert’s report could be considered a supporting affidavit for purposes of a summary judgment motion, we conclude that the opinion expressed in the report does nothing to make the issue of foreseeability a jury question.
Appellants’ expert states in his report:
[Decedent’s] shooting death is not an isolated incident. In general terms it’s[sic] foreseeability was partly predicted by a long history of violent crimes in and around both subject matter bus terminals, such as armed robbery, assault, battery, domestic abuse, fights and drug trafficking. Any one or all of these violent crimes could have resulted in a wrongful death in the past. . . . Out of the total of 911 Calls-for-Service made to local police departments to protect the Greyhound Lines properties over the past twenty years are also hundreds of violent crimes that the police have responded to and Greyhound Lines, Inc., has spent precious little on security in response to this knowledge.
Notwithstanding the expert’s opinion, the information cited to support the opinion is actually more indicative of the fact that this tragic incident was completely unforeseeable.
Regarding the incident in Minneapolis, appellants’ expert stated in his report:
Finally and most telling of the foreseeability of [decedent’s] criminal attack was the activity that took place at the Minneapolis bus terminal. . . . [Greyhound’s employees] were obligated to identify the person who owned the stolen property. [They] could have easily identified [decedent] as the owner of the bag by a collection of all baggage tickets and checking each one against the remaining baggage in the baggage compartment. . . . They then could have worked with more specifics to provide adequate security for [decedent].
Although this passage describes actions that could have been taken and that might have prevented the tragic assault in St. Paul, it has nothing whatsoever to do with foreseeability.
Earlier in the report, discussing the removal of the bag from the bus in Minneapolis, the expert states in his report:
The police should have been called and a burglary/theft report taken at that time. Police intervention would have undoubtedly delayed departure, but after they finished with the case, someone with police training would very possibly have connected the dots and taken action to avert further such attacks.
To the extent that “further such attacks” may relate to what occurred in St. Paul, this passage actually bolsters Greyhound’s assertion that the Minneapolis incident did not make the activities in St. Paul foreseeable because the expert states that even someone with police training would only “very possibly” have “connected the dots.” We conclude that appellants’ expert’s report does not raise any genuine issue of material fact on the issue of foreseeability that would require jury determination of that issue.
Under the circumstances of this case, the district court did not err by determining the issue of foreseeability as a matter of law and did not err by concluding that, even after the incident in Minneapolis, and with knowledge of the lack of security at the St. Paul terminal, Greyhound could not have reasonably foreseen that the three men would switch cars, get a gun, and then drive to the terminal in St. Paul to murder decedent on the bus. The district court properly granted summary judgment.
Because we conclude that Greyhound did not have a duty to protect decedent from the criminal acts of the third parties involved in this case, it is not necessary to address appellants’ claim that Greyhound, as a common carrier, owed decedent a heightened standard of care. See Austin v. Metropolitan Life Ins. Co., 277 Minn. 214, 217, 152 N.W.2d 136, 138 (1967) (if no harm is foreseeable, there can be no negligence). But if we were to address the claim, we would determine that the district court did not err in applying the duty of ordinary care to Greyhound. A common carrier is required to exercise only ordinary care to prevent injury to its passengers from acts of strangers not reasonably foreseeable under the circumstances. Hill v. Minneapolis St. Ry. Co., 112 Minn. 503, 507, 128 N.W. 831, 833 (1910).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 After turning himself in, Moore pleaded guilty to second-degree intentional murder under Minn. Stat. § 609.19, subd. 2 (1998). Pate was charged with one count of first-degree murder and one count of second-degree murder. He was tried and acquitted. Ross was charged with one count of first-degree murder and one count of second-degree murder, but the charges against him were later dismissed.
 Appellants argue that district court’s grant of summary judgment must be reversed because the district court mistakenly found that the three men did not identify decedent on the bus at the Minneapolis terminal. Because the grant of summary judgment is appropriate in spite of the identification of decedent at the Minneapolis terminal, we conclude that the district court’s error was harmless. Minn. R. Civ. P. 61 (courts must disregard any error not affecting the substantial rights of the parties).