This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
d/b/a Cheap Skate,
Filed June 7, 2005
Anoka County District Court
File No. C2-03-2038
Christopher J. Hoffer, Kelly A. Boyd, David M. Cox, Soucie & Bolt, P.A., 2150 Third Avenue North, Suite 100, Anoka, MN 55303 (for appellant)
Byron M. Peterson, Jeanette P. Cogelow, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Minneapolis, MN 55422 (for respondent)
Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.
In this negligence case, appellant Jeremiah Robb challenges the district court’s grant of summary judgment in favor of respondent Funorama, Inc., d/b/a Cheap Skate. Because we conclude there are no genuine issues of material fact and respondent did not owe appellant a duty of reasonable care as a matter of law, we affirm.
On May 12, 2000, a Friday night, appellant was seriously injured while fighting with Joshua Grimley at a roller skating rink owned by respondent (Cheap Skate). At the time of the incident, Cheap Skate’s security policy required that Friday night patrons be “wanded”—searched with a metal detector—from the opening of the rink at 7:00 p.m. until 9:00 p.m., when the majority of patrons had entered. Thereafter, additional patrons were wanded only if they raised suspicion. When Grimley arrived at approximately 10:00 p.m.,he was carrying his work knife that had a three- to four-inch blade, but Cheap Skate employees did not find him suspicious and did not wand him.
On Friday nights, Cheap Skate also employed off-duty police officers for security, but none were available on the night of the assault, so a manager oversaw security on the floor. Other aspects of Cheap Skate’s security policy prohibited inappropriate attire, such as baseball caps, as well as foul language, arguing, and the possession of drugs, alcohol, cigarettes, and gum.
Deposition testimony revealed that fights have occurred at Cheap Skate in the past. For example, a friend of Grimley’s testified that he was assaulted when he attempted to break up a fight, and Cheap Skate owner Richard Lund subsequently told him that it was management’s job to stop altercations. The friend also testified that he believed some Cheap Skate employees were aware of the “bad blood” between appellant and Grimley, but the friend admitted that he had not talked to any employees about the feud.
Cheap Skate manager testified that parents have thanked him “for doing a good
job and watching their kids.” Another
manager described the rink as a “baby sitting service.” And
The origin of the fight at Cheap Skate began months before, when appellant told Grimley that he had a sexual encounter with Grimley’s girlfriend. On the night of the assault, Grimley, his girlfriend, and appellant arrived at Cheap Skate at different times. When Grimley saw appellant, he became agitated, and punched and kicked a set of lockers adjacent to the roller rink. But there is no evidence that any Cheap Skate employees heard the noise or were made aware of the incident. Grimley eventually put on his skates and went on the rink’s surface with a friend. Appellant then walked over and spoke to Grimley’s girlfriend, but she demanded that appellant leave her alone. Grimley observed the event, skated towards appellant, and brandished his work knife. Appellant threw a punch and knocked Grimley to the floor, but apparently was not aware that he was repeatedly stabbed by Grimley during the fight. After the fight ended, appellant released Grimley and realized that he was bleeding and injured.
In February 2003, appellant filed a complaint against Cheap Skate for his injuries, alleging that Cheap Skate and its employees were negligent in failing to protect him from the assault. Cheap Skate brought a motion for summary judgment, which the district court granted. Specifically, the district court concluded that Cheap Skate did not owe a duty of reasonable care to appellant because (1) there was no special relationship between the parties; (2) Cheap Skate did not voluntarily assume a duty to protect appellant; and (3) Cheap Skate did not have knowledge of Grimley’s disruptive behavior before the stabbing and could not foresee that Grimley would assault appellant. This appeal follows.
D E C I S I O N
Summary judgment may be granted if
the pleadings, depositions,
interrogatory answers, admissions, and affidavits reveal that there is no
genuine issue of material fact and that a party is entitled to judgment
as a matter of law.
Special Relationship Between Parties
Appellant argues that Cheap Skate
was negligent because it did not protect him from Grimley’s criminal
actions. A party defending against a negligence
claim is entitled to summary judgment if there is a lack of proof on the
existence of a duty of care. Louis v. Louis, 636 N.W.2d 314, 318 (
defendant generally does not owe a duty to “protect strangers from being harmed
by others.” Delgado v. Lohmar, 289 N.W.2d 479, 484 (
Courts have been reluctant to impose
a “duty to protect” based on special relationships between parties.
Appellant argues that there is a
special relationship between the parties because Cheap Skate held itself out as
accepting the entrustment of patrons’ safety.
Appellant relies on deposition testimony of one manager stating that parents
would thank him for watching their kids, another manager referring to the rink as
a “baby sitting service,” and
We find no evidence in the record indicating that appellant, explicitly or implicitly, entrusted his safety to Cheap Skate. When Grimley skated over to appellant with his knife drawn, appellant did not retreat or summon an employee to quell the possible fight, but instead threw the first punch. Appellant’s conduct supports the conclusion that he retained responsibility for his own safety and did not entrust it to Cheap Skate. Finally, there is no indication that appellant, a high school football player, was particularly vulnerable or dependent on Cheap Skate, nor is there any indication that Cheap Skate, a roller skating rink, held considerable power over appellant’s welfare.
Appellant cites Erickson for the proposition that although courts have historically
been cautious, the supreme court “established a new class of businesses which
may have a duty to protect their patrons from the criminal acts of third
parties.” In Erickson, the victim had just started her car, which was parked in
a dimly-lit, multi-level parking ramp, when she was accosted and raped by a lurking
criminal. 447 N.W.2d at 167. The parking ramp’s security guard allegedly
patrolled the ramp around the time of the assault but did not notice the
physical altercation in the victim’s car.
Although the supreme court imposed a
duty to protect on the business owner in Erickson,
other cases have consistently held that a business has no such duty. See,
e.g., Funchess v. Cecil Newman Corp.,
632 N.W.2d 666, 674 (
Here, appellant was assaulted in a well-lit and crowded roller rink, so none of the unique characteristics of the dimly-lit and confined parking lot in Erickson apply. Appellant invites us to extend Erickson based on public policy factors, but we decline to do so. In a public policy analysis, courts analyze whether (1) the prevention of crime should be primarily the responsibility of the government or a private party; (2) there is an ascertainable standard of care between the parties; and (3) the benefit of added security is worth the increased cost. Erickson, 447 N.W.2d at 169. These public policy considerations do not assist appellant because (1) Cheap Skate should not be charged with providing a quasi-governmental level of protection inside of the rink; (2) Cheap Skate’s security measures cannot be held to a retroactively ascertainable standard of care; and (3) it would have been cost-prohibitive for Cheap Skate to take measures to prevent all possible criminal activity within its premises. After viewing the evidence in the light most favorable to appellant, we conclude that the parties had a typical customer-merchant relationship. Therefore, Cheap Skate did not owe appellant a duty of protection and cannot be held liable for negligence.
Next, we conclude that there was no foreseeable risk of harm to appellant. For the assault to have been foreseeable to Cheap Skate, it must have been objectively reasonable that criminal activity, such as an assault, might occur. See Whiteford v. Yamaha Motor Corp. U.S.A., 582 N.W.2d 916, 918 (Minn. 1998) (“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.”). If the fight was merely a remote and unlikely possibility, that does not result in a conclusion that the fight was objectively foreseeable and should have been foreseen by Cheap Skate employees. See id. Although fights had occurred at the rink in the past, there was no evidence that Cheap Skate employees were aware of the specific feud between Grimley and appellant such that they should have been on notice that a fight was about to begin. Therefore, even if there were a special relationship between the parties, Cheap Skate did not owe appellant a duty of care because the assault was not foreseeable.
Voluntary Assumption of Duty
Appellant next argues that Cheap
Skate voluntarily assumed the responsibility to break up physical altercations
on its premises by using off-duty police officers and metal detectors. Although Cheap Skate did not have an
affirmative duty to protect appellant, it may still be liable if it voluntarily
assumed a duty to protect and subsequently breached that duty. See Williams
v. Harris, 518 N.W.2d 864, 868 (
Although appellant may have been aware of Cheap Skate’s security measures, there is no evidence in the record that he reliedon the measures for protection. Instead, the undisputed testimony reveals that appellant took measures for his own protection, which included throwing the first punch at Grimley. In Nickelson, the victim attempted to physically restrain a shoplifter, in reliance on the belief that security personnel would subsequently intervene. 593 N.W.2d at 726. Appellant, on the other hand, did not rely on the presence of Cheap Skate security guards to stop Grimley from accosting him with the knife. Cheap Skate also presciently observes that a conclusion that it voluntarily assumed a duty to protect would chill it from undertaking more stringent security measures in the future, for fear that an assault despite the security precautions would subject it to liability. See Funchess, 632 N.W.2d at 675 (“[S]ubjecting the landlord to liability for all harm occasioned by a failure to maintain that security would tend to discourage landlords from instituting security measures for fear of being held liable for the actions of a criminal.”). We agree with Cheap Skate, and conclude that it did not voluntarily assume a duty to protect appellant.
Duty to Eject Assailant
Appellant finally argues that Cheap
Skate employees knew, or should have known, of the danger that Grimley posed to
appellant. But even if a landlord has a
duty to maintain its premises in a safe condition, “that duty extends to the
physical condition of the premises and not to criminal acts of independent
third persons.” Errico, 509 N.W.2d at 588. After
construing the evidence in the light most favorable to appellant, there is
nothing in the record indicating that Cheap Skate’s employees saw or heard
Grimley hitting the set of lockers before the assault, and the testimony does
not show that employees knew about the impending danger before it occurred, such that Cheap Skate may be charged with
actual or constructive notice. It must
have been objectively reasonable for Cheap Skate to foresee the assault, and
the deposition testimony reveals that Grimley was acting aggressively for only a
short period of time before the fight. See Whiteford, 582 N.W.2d at 918. This brief period of time is not enough to
charge Cheap Skate with actual or constructive knowledge of the danger Grimley
posed. Cf. Rinn v.