This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
as Trustee for the Heirs and Next of Kin
of Darrell Louis Bisson, Deceased,
a business owned and operated by
the St. Cloud Diocese of the Catholic Church,
The Minnesota County of Cass, et al.,
Filed December 13, 2005
Cass County District Court
File No. C7-04-724
Jason D. Pederson, Fuller, Wallner, Cayko & Pederson, Ltd.,
Joel M. Muscoplat, Gislason, Martin & Varpness, P.A., 7600 Parklawn Avenue, Suite 444, Edina, MN 55435 (for respondent Catholic Charities)
Scott T. Anderson, Margaret A. Skelton, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent Cass County)
Considered and decided by Toussaint, Chief Judge, Dietzen, Judge, and Crippen, Judge.
Appellant Marion Hinkemeyer, as trustee for the heirs of Daniel Bisson, challenges
summary judgment in favor of respondents
behavioral problems continued, and in September 2000, the county obtained legal
custody of J.T. After in-home counseling
did not resolve J.T.’s problems, the district court ordered that the county
out-of-home placement plan was developed for J.T. by Lorraine Bates,
In October 2002, Bates contacted Ted Johnson at Catholic Charities to provide in-home counseling for J.T. and the Mitchells. Johnson sought to improve the familial relationships so that J.T. might return home permanently at the end of the school year. As part of the counseling, Johnson, Kenneth Mitchell, and J.T. created a supervision plan that stated the rules for J.T.’s next home visit.
the fall of 2002, the
appeal follows the district court’s dismissal of appellant’s claims against
appeal from summary judgment, this court must determine whether there are any
issues of material fact and whether the district court erred as a matter of
Official Immunity of
judgment is appropriate when a governmental entity establishes its actions are
immune from liability.” Gutbrod v.
official immunity protects a governmental entity from liability based on the
acts of an employee who is entitled to official immunity.” Dokman
discretionary decision involves individual professional judgment that
necessarily reflects the facts of a situation and the professional goal.” Sletten,
675 N.W.2d at 306. “In contrast, a
ministerial duty is one in which nothing is left to discretion; it is absolute,
certain, and imperative, involving merely execution of a specific duty arising
from fixed and designated facts.”
Appellant argues that Bates’ decision to allow the home visit was not discretionary because G.B.’s placement plan stated that he must “stay away from gang affiliation or activities.” In appellant’s eyes, this provision imposed a ministerial mandate that Bates prevent contact between the boys because both boys boasted that they were gang members. For numerous reasons, this argument is without merit and we must affirm the district court’s grant of summary judgment.
First, the gang affiliation provision in G.B.’s placement plan does not govern the behavior of Bates or the county; rather, the provision governs G.B.’s behavior. Second, the argument that gang affiliation or activity occurs when the boys are present in their own home is not evident in reading the plan. Third, the notion that gang activity might occur in the home is diminished by the lack of evidence that G.B. and J.T. were actually affiliated with a gang; the record only shows that the boys boasted of gang membership. Fourth, the gang affiliation and activity provision directly conflicts with the plans’ goals to foster healthy family relationships and an eventual permanent return of the boys to their home. G.B.’s plan provides that he may visit his home a few weeks after the plan’s inception, while J.T.’s plan allows for a complete return home before Christmas 2002. In sum, nothing in the provision for gang affiliation and activities can reasonably be read to eliminate discretion of Bates in implementation of the plan.
denying Bates and the county the protection of immunity would seriously impair
necessary government functions involved in overseeing foster care for children
placed in the county’s custody. See Cairl, 323 N.W.2d at 23 (ruling that
county caseworker’s decision to release youth from institution on holiday home
leave was discretionary); cf. Olson v.
2. Duty of Catholic Charities
is appropriate in a negligence action “when the record reflects a complete lack
of proof on an essential element of the plaintiff’s claim.” Lubbers
a duty exists is a question of law that this court reviews de novo.
a special relationship to exist, “it must be assumed that the harm to be
prevented by the defendant is one that the defendant is in a position to
protect against and should be expected to protect against.” Donaldson
v. Young Women’s Christian Ass’n, 539 N.W.2d 789, 792 (
case against respondent Catholic Charities collapses as appellant attempts to
articulate respondent’s alleged duty. Appellant
repeatedly argues that Catholic Charities had a duty to control J.T. Pressed to be more specific, appellant
suggests that Ted Johnson had a duty to control J.T.’s activities during the
visitation, and that Johnson first breached the duty when he was not present
for J.T.’s Thanksgiving home visit. But
there is no evidence suggesting that
argues that Catholic Charities had a duty because, like a defendant in Lundman v. McKown, 530 N.W.2d 807, 821 (
Because it is evident from the record that appellant has not shown that Catholic Charities had a duty in these circumstances, we refrain from examining whether J.T.’s homicidal conduct was foreseeable.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.