This opinion will be unpublished and

may not be cited except as provided by

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





Marion Hinkemeyer,

as Trustee for the Heirs and Next of Kin

of Darrell Louis Bisson, Deceased,


Catholic Charities,
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

Crippen, Judge


Cass County District Court

File No. C7-04-724


Jason D. Pederson, Fuller, Wallner, Cayko & Pederson, Ltd., 514 America Avenue Northwest, P.O. Box 880, Bemidji, MN 56619-0880 (for appellant)


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.

U N P U B L I S H E D   O P I N I O N


            Appellant Marion Hinkemeyer, as trustee for the heirs of Daniel Bisson, challenges summary judgment in favor of respondents Cass County and Catholic Charities relating to the murder of decedent in November 2002.  Because there is merit in the district court’s determination that the county is protected by vicarious official immunity of its social worker, and that Catholic Charities had no duty pertinent to the behavior of those responsible for decedent’s death, we affirm.


            J.T. and G.B. are relatives by the marriage of Kenneth and Sharon Mitchell and have lived in the home of the Mitchells.  Kenneth Mitchell is J.T.’s father, and Sharon Mitchell is G.B.’s grandmother.  J.T. and G.B. were individually diagnosed with mental disabilities, and both qualified for mental health services from Cass County.  During the summer of 2000, the Mitchells requested assistance from the county to resolve the boys’ behavioral problems.  The county appointed Lorraine Bates as the boys’ mental health case manager/social worker. 

            J.T.’s 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 place J.T. in a residential treatment program.  By August 2002, Randy and Linda Hood began providing foster care for J.T. 

            An out-of-home placement plan was developed for J.T. by Lorraine Bates, Kenneth Mitchell, the Hoods, the guardian ad litem, and the probation officer, which provided that J.T. would reunify with his father if he could live successfully in foster care and behave appropriately during home visits.  The plan provided that J.T. and his father could request home visits, and J.T. could see former friends with approval from his father and the social worker.

            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.

            Cass County also began providing services to G.B. during the summer of 2000.  The in-home services did not resolve his behavioral issues, and in August 2001 the court transferred custody of G.B. to the county and a residential treatment facility.  After positive home visits in 2002, the county placed G.B. in the foster care of Vince and Marilyn Olson. 

            Bates, G.B., Sharon Mitchell, Vince Olson, and a tribal representative then developed an out-of-home placement plan for G.B.  That plan aimed to ultimately reunify G.B. with his parents or principal caretakers and place him with Sharon Mitchell.  The plan allowed Sharon Mitchell and G.B. to request home visits, and G.B. could visit anyone in Sharon Mitchell’s company and see friends with her approval.

            In the fall of 2002, the Mitchells requested home visits for J.T. and G.B. during the upcoming Thanksgiving weekend.  After considering the court orders, the out-of-home placement plans, state and federal law, and information that Bates received from J.T., G.B., the Mitchells, and Ted Johnson, Bates allowed the visits.  Hours after arriving home, J.T., G.B., and another juvenile murdered Darrell Bisson.

            This appeal follows the district court’s dismissal of appellant’s claims against respondents Cass County and Catholic Charities.


            On 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 law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court must view the evidence in the light most favorable to the party against whom summary judgment was granted and resolve any doubts about the existence of a material fact in favor of that party.  Bundy v. Holmquist, 669 N.W.2d 627, 630 (Minn. App. 2003).

1.  Vicarious Official Immunity of Cass County

            “Summary judgment is appropriate when a governmental entity establishes its actions are immune from liability.”  Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995).  The applicability of immunity is a question of law that this court reviews de novo.  Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).  The party asserting immunity has the burden of showing particular facts that indicate entitlement to immunity.  Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 209 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

            “Vicarious official immunity protects a governmental entity from liability based on the acts of an employee who is entitled to official immunity.”  Dokman v. County of Hennepin, 637 N.W.2d 286, 297 (Minn. App. 2001), review denied (Minn. Feb. 28, 2002).  Official immunity “protects government officials from suit for discretionary actions taken by them in the course of their official duties.”  Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn. 2004).  Thus, the critical issue in official immunity claims is whether an official’s act is protected discretionary conduct or unprotected ministerial conduct.  See Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998). 

            “A 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.”  Id. (quotation omitted).  When determining whether an act is discretionary or ministerial, courts will consider “the extent to which the threat of liability would impair the effective performance of the [challenged] governmental act.”  Cairl v. State, 323 N.W.2d 20, 23 n.3 (Minn. 1982).

            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.

            Finally, 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. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993) (determining that social worker’s decision to contact family was not discretionary); Huttner v. State, 637 N.W.2d 278, 285 (Minn. App. 2001) (concluding that social worker’s decision to verify that her client was taking his medication was not discretionary), review denied (Minn. Nov. 13, 2001).  Because Bates’ decision to allow the home visit was discretionary, vicarious official immunity protects the county from liability.

2.  Duty of Catholic Charities


            Summary judgment 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 v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  The essential elements of a negligence claim are:  (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) that the breach was the proximate cause of the injury.  Id.  The district court granted Catholic Charities’ motion for summary judgment because it ruled that Catholic Charities did not have a duty of care.

            Whether a duty exists is a question of law that this court reviews de novo.  H.B. by Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996).  Generally, a defendant does not have a duty to control the conduct of a third person to prevent that person from causing physical harm to another.  Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984); Restatement (Second) of Torts § 315 (1965).  The existence of a duty depends on (1) whether the defendant and third person have a special relationship, and (2) the foreseeability of the harm.  Lundgren, 354 N.W.2d at 27.

            For 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 (Minn. 1995).  Thus, “[i]mplicit in the duty to control is the ability to control.”  Lundgren, 354 N.W.2d at 27.

            Appellant’s 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 Johnson assumed any responsibility for on-site control of J.T.  To the contrary, Johnson’s duties were limited to providing general services to the family and to helping J.T.’s father formulate an activity plan for J.T.’s visit.  Johnson left the implementation of the plan entirely to J.T. and his father.

            Appellant argues that Catholic Charities had a duty because, like a defendant in Lundman v. McKown, 530 N.W.2d 807, 821 (Minn. App. 1995), review denied (Minn. May 31, 1995), respondent provided professional services to the Mitchells in return for cash wages.  But Lundman is distinguishable because it involved a duty to the defendant’s patient, not a duty to a third party.  See Lundman, 530 N.W.2d at 821.  Additionally, the Mitchells did not pay Johnson to physically control J.T.

            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.