This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Katherine I. Laska, as trustee for the heirs

and next of kin of Hannah Irene Laska, decedent,





Anoka County, et al.,



Joyce L. Jeffrey,



Ginger R. Jeffrey,



Filed December 20, 2005

Affirmed in part, reversed in part, and remanded

Worke, Judge


Anoka County District Court

File No. C1-03-8400


Cynthia R. Bartell, Heather H. Neubauer, Foley & Mansfield, P.L.L.P., 250 Marquette Avenue, Suite 1200, Minneapolis, MN 55401 (for appellant)


Mike Hatch, Attorney General, Jerome L. Getz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101 (for respondents Anoka County and Jennifer Carlson)


Diane B. Bratvold, Jan M. Gunderson, Shanda K. Pearson, Rider Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, MN 55402 (for respondent Joyce Jeffrey)


            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            Appellant Katherine I. Laska challenges the district court order granting summary judgment in favor of respondent Anoka County arguing that (a) there are genuine issues of material fact regarding whether the county’s failure to enforce the day-care owner’s compliance with established day-care rules caused decedent’s death; and (b) the county had a duty to warn appellant of dangers at the day care that were unknown to appellant.  Also at issue is whether this court should affirm the district court’s denial of the day-care owner’s motion for summary judgment on the issue of medical causation under the Frye-Mack standard.  Because we conclude that genuine issues of material fact exist regarding whether the county’s action or inaction contributed to the child’s death, we reverse the district court’s entry of summary judgment and remand for trial.  We affirm the district court’s rulings on the remaining issues.


            In 1983, respondent Joyce L. Jeffrey obtained a day-care license from Anoka County. The county performed biennial relicensing inspections at Jeffrey’s day care until 1999.  Between 1992 and 1999, Jeffrey received correction orders from the county for 28 rule violations, including many chronic violations.  Correction orders are issued for rule violations that occur in a licensed day care.  Minn. R. 9543.0090, subp. 2 (2005).  If a correction order is issued, the county’s policy states that, “[a] recheck visit is usually a follow-up to a correction order you left on a previous visit . . . to ‘recheck’ whatever was out of compliance on your previous visit.”  The county visited Jeffrey’s day care 18 times from 1983 to 1999.  During that time, the county did eight follow-up monitoring visits, three of which were done within five to six days after the initial visit. 

            On August 20, 1999, Anoka County social worker Evelyn Nelson conducted Jeffrey’s relicensing inspection.  Nelson found Jeffrey’s day-care facility to be “a pretty chaotic environment.”  Jeffrey told Nelson that she was “burned out” and tired of doing day care.  In addition to citing Jeffrey for several safety violations, Nelson discussed supervision issues with Jeffrey.  Nelson determined that Jeffrey needed to be monitored more closely due to Jeffrey’s admission that she was exhausted and frustrated with childcare.  Nelson recommended to the Department of Human Services (DHS) that Jeffrey be relicensed every year as opposed to every two years.  DHS issued Jeffrey a one-year license following the August 1999 inspection. 

            On June 9, 2000, Hannah Irene Laska was born.  When Hannah began attending Jeffrey’s day care on July 28, 2000, Jeffrey had a class C2 license, which allowed her to care for a maximum of 12 children, including no more than two infants or toddlers, of which only one could be an infant. 

            On August 9, 2000, respondent Jennifer Carlson attempted to conduct Jeffrey’s yearly relicensing inspection.  When Carlson arrived, she found that Jeffrey had not completed her required paperwork.  After counting the children present, Carlson learned that Jeffrey had falsely underreported the number of infants enrolled in her day care.  Carlson told Jeffrey to complete her paperwork and she would return to finish the inspection.     

            When Carlson returned on August 14, 2000, Jeffrey had not yet completed the required paperwork.  During the inspection, Carlson learned that Jeffrey placed Hannah on a bed instead of in a crib for her nap.  Carlson also learned that Jeffrey placed Hannah on her stomach when she napped.  Further, Carlson observed Jeffrey leave Hannah unattended on a couch and bed while Jeffrey went outside to check on the other children.  Jeffrey also left toddlers unattended in the room with Hannah while Jeffrey was outside.  Carlson also witnessed Jeffrey sit on a child when the child refused to remain seated in a chair during a time-out.  Following these observations, Carlson discussed infant sleep space with Jeffrey and told her that infants needed to sleep in cribs.  Carlson told Jeffrey that the recommended sleep position for infants was on their backs without soft blankets.  Carlson stated that she believed Jeffrey was very stressed out during the inspection: “She sighed a lot.  She didn’t appear to have a lot of patience with the children. . . . she told me that she doesn’t—she didn’t really care for doing day care any longer.”  When Carlson informed Jeffrey that it violated the supervision rule to leave Hannah unattended on a bed or couch, Jeffrey responded, “What do you expect me to do—put her in a port-a-crib each time I put her down or go outside?” 

            As a result of the inspection, Carlson cited Jeffrey for 20 rule violations, 15 of which she ordered Jeffrey to correct either “immediately” or “ASAP.”  Specifically, Carlson ordered Jeffrey to immediately stop placing Hannah on a bed, rather than a crib, to sleep; immediately stop leaving Hannah unattended on a bed or couch; immediately stop leaving the day-care children out of her sight and sound; and to stop exceeding her licensed capacity as soon as possible. 

            When Carlson returned to her office after the inspection, she discussed her concerns with Nelson and Carlson’s supervisor, Nancy Sackett.  Nelson expressed concern that the situation was getting worse at Jeffrey’s day-care facility and “had gone downhill” since the August 1999 inspection.  The women also discussed the fact that there were a large number of violations and of such a serious nature that it “could have put children in [Jeffrey’s] care in harm’s way.”  On either August 14 or 15, Sackett agreed with Carlson and Nelson that adverse action was appropriate “in light of the numerous violations [Carlson] cited.”  It is standard practice for the county to set up a meeting as soon as possible to consult with the county attorney regarding any possible recommendations for adverse action against a day-care license, but the county attorney was not consulted prior to Hannah’s death.  In addition, no further action was taken to recheck the violations listed in the correction order that was issued prior to Hannah’s death. 

            On August 15, 2000, Jeffrey submitted a request for an age-distribution variance that would allow her to have an additional toddler.  Under Minn. R. 9502.0335, subp. 8(A) (2005), “[a] variance may be granted only if . . . the applicant complies with all applicable laws, ordinances, and regulations.”  On August 17, 2000, the county granted Jeffrey’s variance request.  Carlson and Nelson were on the Anoka County Variance Committee that approved Jeffrey’s variance request. 

On August 21, 2000, Jeffrey’s age-distribution variance took effect.  Jeffrey admitted that even with the age-distribution variance, she was over-capacity that day, with “two infants, four toddlers, three preschoolers, and four school-aged children” at the day care.  Hannah and her five-year-old brother arrived at Jeffrey’s day care at noon.  A second infant arrived at 1:30 p.m., at which time Jeffrey placed Hannah down for a nap in a rear bedroom.  Jeffrey placed Hannah on her stomach on top of a foam-filled comforter on an adult bed.  At approximately 2:30 p.m., Jeffrey checked on Hannah when she entered the room to retrieve another child who had been napping in the same room.  Hannah was not checked on again until sometime around 4:30 p.m. when Jeffrey’s adult daughter entered the room to watch television and sat on the bed where Hannah was sleeping.  After approximately ten minutes of watching television, Flohaug turned Hannah over and noticed a bluish tinge to her face.  Efforts to resuscitate Hannah at the scene failed, and she was rushed to Mercy Hospital, where she was pronounced dead at 5:22 p.m. 

On September 14, 2000, Anoka County recommended that Jeffrey’s license be revoked.  Support for this recommendation included the August 14 inspection, which found that Jeffrey was over-capacity, she had provided inadequate supervision when she left an infant on a couch twice to check on children who were outside, and she had noncompliant infant sleep space because she slept infants on adult beds.  That same date, Carlson sent a letter to appellant Katherine I. Laska, informing her that Anoka County had recommended that Jeffrey’s day-care license be revoked.  On October 18, 2000, DHS revoked Jeffrey’s day-care license based on the “serious and repetitive nature” of the violations by Jeffrey during the August 14, 2000 relicensing inspection and “the risk to the health and safety of the children in care.”  

Appellant filed a wrongful-death lawsuit against Anoka County, Jennifer Carlson, Joyce Jeffrey, and Ginger Flohaug.  Respondents moved for summary judgment, and the district court granted Anoka County’s motion for summary judgment, ruling that the county did not cause Hannah’s death, the county did not owe a duty to warn appellant of Jeffrey’s rule violations unless it recommended that adverse licensing action be taken, and owed no common-law duty to warn.  The district court denied Jeffrey’s motion for summary judgment ruling that appellant’s expert’s opinion was commonly accepted by the medical community, was admissible because it is not speculative or novel, and the issue of the cause of Hannah’s death should be decided by a jury.  This appeal follows.


On appeal from summary judgment, this court must determine (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court reviews de novo whether a genuine issue of material fact exists and whether the district court erred in its application of the law.  STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn. 2002).  This court must “view the evidence in the light most favorable to the party against whom summary judgment was granted.”  Id. at 76-77.  For purposes of this case, therefore, we must accept appellant’s factual allegations as true.

Genuine issues of material fact

Appellant argues that the district court erred in granting summary judgment in favor of the county because there are genuine issues of material fact regarding the county’s actions that contributed to Hannah’s death.  Appellant alleges common-law negligence and negligence per se claims against the county.  The district court granted summary judgment in favor of the county based solely on the issue of causation.

            The elements of negligence are (1) duty, (2) breach of duty, (3) proximate cause, and (4) injury.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).  While the district court did not address the issue of duty, the supreme court has held that “small children in a licensed day care facility are a particular protected class.  The class consists of uniquely vulnerable persons: small children, often infants, left by their working parents in a home other than their own, and left in the care of another person.”  Andrade v. Ellefson, 391 N.W.2d 836, 842 (Minn. 1986).  Under Andrade, a special relationship exists between the county investigating day-care facilities for licensure and the small children in the facilities, giving rise to a tort duty of care owed by the county to the children, who constitute a protected class.  Id. at 843.  The county owed a duty of care to Hannah.  The issue of whether the county breached that duty is normally a question for the jury.  See Lundman v. McKown, 530 N.W.2d 807, 828 (Minn. App. 1995), review denied (Minn. May 31, 1995). 

            The district court granted summary judgment in favor of the county solely on the issue of causation, ruling that Jeffrey’s day-care license could not possibly have been revoked or suspended prior to Hannah’s death.  The district court ruled that there were no material fact disputes because even if the county had recommended adverse action, such as an immediate suspension, it could not have been processed in time to prevent Hannah’s death.  The district court further ruled that Jeffrey’s conduct violations were not the type that would result in a license suspension or revocation.  Proximate cause is established when a party’s negligent act (or failure to act) is “one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others . . . though he could not have anticipated the particular injury which did happen.”  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (quotation omitted).  It must also be shown that the party’s “conduct was a substantial factor in bringing about the injury.”  Id. (quoting Flom v. Flom, 291 N.W.2d 914, 917 (Minn. 1980)). 

            Appellant argues that the facts here are analogous to those in Hamilton v. Indep. Sch. Dist. No. 114, 355 N.W.2d 182 (Minn. App. 1984).  In Hamilton, the plaintiff sued a school for its failure to monitor/supervise students after sporting events, which resulted in injuries to the plaintiff when a bully pushed another student, who fell on her.  Hamilton, 355 N.W.2d at 183-84.  Two weeks earlier, the bully had assaulted the same student.  Id. at 184.  The district court granted summary judgment in favor of the school, ruling that while the school could have prevented the bully from attending the sporting events or could have hired a teacher to remain with the bully, those alternatives were not feasible, realistic, or required.  Id. at 185.  This court overruled the district court’s decision, holding that there was a genuine issue of material fact about whether additional supervision would have prevented the second attack and the plaintiff’s injury.  Id. 

Here, appellant argues that there is a genuine issue of material fact regarding whether additional supervision by the county—namely, a recheck or monitoring after the August 14 inspection—would have prevented Hannah’s death.  It is undisputed that the county was aware that Jeffrey repeatedly placed Hannah on her stomach on an adult-type bed with a thick comforter.  At the August 14 inspection, Carlson ordered Jeffrey to immediately stop sleeping Hannah on the adult-type bed.  The facts here are analogous to Hamilton.  The county argues that there is no evidence, even circumstantial evidence, from which a jury could determine that Jeffrey would have somehow changed her practice of placing Hannah in a prone position on an unapproved sleep surface if the county had made more visits or issued more correction orders to her.  When the parties present two plausible theories of causation, a jury must decide which is more credible.  Ingram v. Syverson, 674 N.W.2d 233, 237 (Minn. App. 2004), review denied (Minn. Apr. 20, 2004). 

            The record shows that the county believed that the violations for which Jeffrey was cited as a result of the August 14 inspection were serious.  Following the inspection, the social workers—Carlson, Nelson, and Sackett—determined that they would recommend that adverse action be taken against Jeffrey’s license as a result of the excessive number and seriousness of the violations for which Jeffrey was cited at the inspection.  Even if the county lacked the ability to immediately suspend or revoke Jeffrey’s day-care license, a genuine issue of material fact exists regarding whether the county failed to ensure that Jeffrey complied with the correction order by following up with a recheck visit.  Whether additional monitoring or supervision by the county would have deterred Jeffrey’s rule violations that potentially led to Hannah’s death and whether further action by the county would have protected Hannah are questions for a jury.  The district court’s grant of summary judgment in favor of the county is reversed, and the case is remanded for trial.

Expert opinion

            Appellant argues that the district court properly determined that the opinion of appellant’s expert, Dr. Janice Ophoven, was admissible because it is generally accepted in the medical community that sleeping an infant in a prone position on an adult-type bed covered with soft bedding is a SIDS risk factor, which can be prevented.  Appellant also argues that the district court properly determined that genuine issues of material fact exist regarding whether Jeffrey’s actions caused Hannah’s death. 

            The Minnesota Supreme Court has held that “[t]he proper standard to apply in assessing the admissibility of novel scientific evidence is the Frye-Mack standard[,]” set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and State v. Mack, 292 N.W.2d 764 (Minn. 1980).  See State v. MacLennan, 702 N.W.2d 219, 230 (Minn. 2005).  “Under the Frye-Mack standard, a novel scientific theory may be admitted if two requirements are satisfied.”  Id.  First, “[t]he district court must determine whether the novel scientific evidence offered is generally accepted in the relevant scientific community.”  Id.  Second, a determination must be made regarding “whether the novel scientific evidence offered is shown to have foundational reliability.”  Id.  This court reviews the first prong of the standard de novo; the second prong is reviewed under an abuse-of-discretion standard.  McDonough v. Allina Health Sys., 685 N.W.2d 688, 694-95 (Minn. App. 2004). 

            Appellant argues that the Frye-Mack standard has been met because Dr. Ophoven’s opinion—that placing Hannah in a prone position on an adult-type bed with soft bedding was a substantial risk factor in bringing about Hannah’s death—is a generally accepted opinion in the medical community and is reliable, based on the numerous studies conducted by the medical community and on statistical data.  Respondent Jeffrey argues that Dr. Ophoven’s opinion mistakenly equates SIDS risk factors with the cause of SIDS.  Respondent argues that Dr. Ophoven’s opinions are, therefore, contradictory to those generally accepted by the relevant scientific community and, thus, do not satisfy the first prong of the Frye-Mack standard for admissibility.  Respondent’s argument, however, is misplaced because Dr. Ophoven’s opinion does not attempt to equate SIDS risk factors with the cause of SIDS.  Her opinion is merely the same as that of the coroner who conducted the autopsy on Hannah; the coroner listed “[p]rone sleeping position on an adult-type bed” on the death certificate as a “significant condition[] contributing” to Hannah’s death. 

Additionally, respondent’s own expert, Dr. De-Kun Li, agrees with the opinion of Dr. Ophoven that a prone sleep position increases the possibility of an infant’s SIDS death.  Dr. Li has recognized the “strong evidence confirming an association” between the prone sleep position and SIDS death; his analysis suggests that a conservative estimate reflects that infants are approximately three times more likely to die from SIDS if placed in the prone sleep position.  The district court did not err in determining that Dr. Ophoven’s “opinions about the risk factors and preventability of SIDS are generally accepted by the medical community, and are therefore not speculative or novel.” 

Respondent further argues that appellant cannot establish that Dr. Ophoven’s testimony would be helpful to a jury under Minn. R. Evid. 702.  In addition to the Frye-Mack standard, all expert testimony must satisfy the requirements of Minn. R. Evid. 402 and 702: it must be relevant, helpful to the trier of fact, and given by a witness qualified as an expert. Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000).  Under Minn. R. Evid. 702, expert opinion is admissible if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” and the “witness [is] qualified as an expert by knowledge, skill, experience, training, or education.”  The admissibility of an expert’s opinion “rests within the sound discretion of the trial court and will not be reversed unless it is based on an erroneous view of the law or it is an abuse of discretion.”  Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760 (Minn. 1998).   Appellant bears the burden of establishing the proper foundation for the admissibility of the evidence.  See Goeb, 615 N.W.2d at 816.  Dr. Ophoven is a board-certified pathologist and a forensic pathologist who practices in the area of pediatric forensic pathology.  Her testimony will assist the trier of fact in understanding the evidence and in determining a fact in issue.  Dr. Ophoven can testify regarding the known risk factors for SIDS, the SIDS factors that contributed to Hannah’s death, and that the cause of Hannah’s death was SIDS.  Any expert testimony, however, opining that Hannah died as a result of sleeping on her stomach would not be appropriate.  Based on the substantial evidence presented supporting Dr. Ophoven’s opinion and her specialized knowledge in the area, the district court’s ruling that Dr. Ophoven’s testimony is admissible was not an abuse of discretion and is not a violation of Minn. R. Evid. 702. 

Finally, respondent argues that the district court erred in denying summary judgment on the issue of medical causation because the expert testimony presented did not create a conflict generating a question on causation.  Appellant argues that the district court did not err in denying summary judgment on the issue of medical causation because the opinions of Dr. Ophoven; the coroner, Dr. Huston; and Jeffrey’s medical experts raise genuine issues of material fact as to whether Jeffrey’s actions caused Hannah’s death.  A review of the expert opinions, however, reveals a factual dispute to be presented to a jury.  Appellant’s expert opines that Jeffrey’s action in placing Hannah to sleep on her stomach on an adult-type bed with soft bedding was a substantial contributing factor in Hannah’s death.  Respondent’s experts, on the other hand, opine that Jeffrey’s actions did not cause Hannah’s death because the organic cause of SIDS is unknown.  When parties present two plausible theories of causation, a jury must decide which is more credible.  Ingram, 674 N.W.2d at 237.  The district court did not err in denying summary judgment on the issue of medical causation because the parties have disputing theories of causation that must be resolved by a jury.

Duty to warn

            Appellant argues that the district court erred in ruling that the county had no common-law duty to warn of the dangerous conditions present in the Jeffrey day-care facility.  The district court ruled that there was no evidence that Jeffrey posed a specific threat to Hannah, and appellant learned that Jeffrey was sleeping Hannah on her stomach on a soft surface after the county’s inspection.  The existence of a duty to warn is a question of law to be determined by this court de novo.  H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996). 

            Appellant relies on Cairl v. State, 323 N.W.2d 20 (Minn. 1982), to support her argument that a defendant who stands in a special relationship to a foreseeable victim owes a duty to warn of latent dangers under certain circumstances.  The facts in Cairl involved a boarding student at a state-operated facility who had a known propensity to start fires.  Cairl, 323 N.W.2d at 22.  When the student was released to visit his family, he started a fire in his mother’s apartment that killed one person, severely burned another, and destroyed the building.  Id.  The Minnesota Supreme Court created an exception to the common-law rule that individuals owe no duty to warn those endangered by the conduct of another.  Id. at 25 n.7 (citing Restatement (Second) of Torts § 315 (1965)).  The exception applies when a defendant stands in some special relationship to either the person whose conduct needs to be controlled or to the foreseeable victim of that conduct.  Id.  Further, the supreme court ruled that “if a duty to warn exists, it does so only when specific threats are made against specific victims.”  Id. at 26.  Appellant argues, and the county concedes, that under Minnesota law a special relationship existed between the county and Hannah.  Appellant further argues that the evidence here shows that there was a specific threat—Jeffrey sleeping Hannah on a bed on her stomach and not supervising her—to a specific victim—Hannah. 

            Appellant argues that the county’s knowledge of Jeffrey’s rule violations, which included sleeping Hannah on her stomach in an adult bed with soft bedding, posed a specific risk of harm to Hannah.  Appellant argues that, unlike the circumstances in Cairl, Jeffrey posed a specific danger to Hannah that was different from any danger she posed to the general public because Hannah was in her care.  Respondent argues that while Jeffrey’s actions may be negligent, they do not rise to the level of an intentional tort, such as arson, which may give rise to a Cairl duty to warn.  Respondent also argues that Jeffrey did not single out Hannah to be the recipient of the violation of the sleep-surface regulation or the best-practices advice to sleep infants on their backs; Jeffrey testified that she slept all infants in her care in the same manner.  Finally, respondent argues that no duty to warn existed because appellant learned that Jeffrey slept Hannah in a prone position on an adult bed in the time between the August 14 inspection and Hannah’s death on August 21.  Appellant concedes that while she learned of Jeffrey’s actions, she was unaware of the danger of sleeping an infant on soft surfaces. 

            Even conceding that a special relationship existed here, we agree with the district court that Jeffrey did not pose a specific threat to a specific victim.  Further, while Jeffrey’s conduct may rise to the level of negligence, it was not intentional as in Cairl.  Most notably, the county’s notification policy provides that parents be notified when adverse action is recommended or taken against a provider’s license.  While the decision had been made to recommend adverse action be taken against Jeffrey’s license, the necessary steps to follow through with that recommendation were not taken by the time of Hannah’s death.  The district court did not err in ruling that the county had no common-law duty to warn of the conditions present in the Jeffrey day-care facility.

            Affirmed in part, reversed in part, and remanded.