This opinion will be unpublished and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
Shari L. Balen,
Filed January 18, 2006
Dakota County District Court
File No. C3-01-9010
James E. Lindell, Lindell & LaVoie, LLP, 2420 Centre Village, 431 South Seventh Street, Minneapolis, MN 55415 (for appellant)
Brian A. Wood, William L. Davidson, Sara J. Lathrop, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondent)
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
In this negligence case, the district court granted respondent’s motion for summary judgment, concluding that respondent did not owe a legal duty to appellant. We affirm.
This negligence action involves an injury to appellant Shari Balen resulting from a fall from a horse owned by respondent James Peltier. On the night of August 30, 2000, while at his home, Peltier asked Balen if she wanted to see his horses. They walked outside, and Peltier brought into a corral a horse that he had owned for six months. The horse was fitted with only a halter and a lead rope; it was not saddled or bridled. According to Balen, Peltier said, “Let’s go for a ride” and lifted her onto the horse. Balen grabbed the horse’s mane as she sat upright on its back. Standing beside Balen and the horse, Peltier then released the lead rope, and the horse reared. Balen was thrown off the horse, injuring her back.
Balen sued Peltier, claiming that she was “injured by reason of [Peltier’s] negligence in that he invited and allowed her to ride a horse owned by [Peltier], unsaddled, which horse [Peltier] knew or should have known was high spirited, seldom ridden and was difficult to control.” Peltier moved for summary judgment, arguing that Balen voluntarily got onto the horse, that he did not know that the horse had any dangerous propensities, and that he had no legal duty to protect Balen. In response, Balen contended that evidence existed that Peltier knew or should have known about the horse’s “hazardous propensities” and that Peltier’s actions created a legal duty that he use “reasonable care for Balen’s safety.”
The district court granted summary judgment to Peltier. It concluded that there was no direct evidence that the horse had any dangerous propensities. Citing section 314A of the Restatement (Second) of Torts, the district court noted that a person has no duty to act for the protection of another absent a “special relationship” and concluded that Peltier had no duty to protect Balen because he had no knowledge that the horse had any dangerous propensities and no special relationship existed between the parties. This appeal follows.
On appeal from summary judgment, this court asks whether any genuine issues of material fact exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The district court may grant a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). In our review of a summary judgment, we view the evidence in the light most favorable to the party against whom summary judgment was granted and resolve in that party’s favor any doubt as to whether an issue of material fact exists. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992).
Balen argues that the district court erred by concluding that Peltier had no legal duty to protect her from injury. There are two bases for recovery for an injury inflicted by a domestic animal. Ryman v. Alt, 266 N.W.2d 504, 506-08 (Minn. 1978). First, a plaintiff may recover in a “scienter” action “by proving that (1) the animal had a vicious propensity, and (2) the animal’s keeper had notice of the vicious propensity.” Id. at 506. The scienter theory is “not based on negligence; once the animal’s dangerousness and the keeper’s scienter are proved, liability follows unless the person injured voluntarily and knowingly assumed the risk of injury.” Id. at 508. The district court found that Balen presented no direct evidence that the horse had any dangerous propensities, and she does not challenge that ruling on appeal.
Second, recovery can also be “based entirely upon the negligence of the animal’s owner.” Id. To maintain a negligence claim, Balen must show (1) that Peltier owed her a duty, (2) that Peltier breached that duty, and (3) that the breach was the proximate cause of an injury to her. See Boitz v. Preblich, 405 N.W.2d 907, 912 (Minn. App. 1987) (citations omitted) (affirming district court’s rejection of a common-law negligence claim for injuries resulting from a dog running into plaintiff because plaintiff could not establish duty). If the record lacks proof of any element of a negligence claim, a defendant is entitled to summary judgment. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001). The district court ruled that Peltier had “no duty to [Balen] because he had no knowledge that the horse had any dangerous propensities and there was no special relationship” between the parties.
The existence of a duty is a question of law. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985). Whether a duty to protect another person exists depends on the relationship between the parties and the foreseeability of the risk involved. Donaldson v. Young Women’s Christian Ass’n, 539 N.W.2d 789, 792 (Minn. 1995). “A person generally has no duty to act for the protection of another person, even if he realizes or should realize that action on his part is necessary.” Id. (citing Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979) (citing Restatement (Second) of Torts § 314 (1965)). A legal duty to act for the protection of another exists only when there is a “special relationship” between the parties. Id. A special relationship exists when “the plaintiff is typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiff’s welfare.” Harper v. Herman, 499 N.W.2d 472, 474 n.2 (Minn. 1993) (quoting W. Page Keeton et al., Prosser and Keeton on the Laws of Torts § 56, at 374 (5th ed. 1984)). Generally, a special relationship is “only found on the part of common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person . . . deprived of normal opportunities of self-protection.” Id. at 474.
Balen concedes that the record does not show that there was a special relationship between the parties. Balen was a social guest at Peltier’s home and voluntarily mounted the horse. She is an adult, and she was not deprived of normal opportunities of self-protection. Nothing in the record suggests that at the time of the accident, she was particularly vulnerable or dependent on Peltier. The district court did not err by concluding that there was no special relationship between the parties and that, therefore, Peltier had no legal duty to protect Balen.
But Balen argues that evidence of a special relationship is not required here because the duty that she alleges was owed to her “arises from Peltier’s own conduct, not that of some third party.” She contends that Peltier owed her the common-law duty of care, which requires a showing only of the foreseeability of injury. See Connolly v. Nicollet Hotel, 254 Minn. 373, 381, 95 N.W.2d 657, 664 (1959) (stating that the “common-law test of duty is the probability or foreseeability of injury to the plaintiff”). But it appears that however Balen attempts to describe it, her claim is that Peltier had a duty to protect her from injury. Although Balen uses phrases like “a reasonable degree of care,” she concludes that Peltier had a duty “to safeguard [her] from harm.” This is simply another way of saying that Peltier had a duty to protect her. See The American Heritage Dictionary 995 (2d college ed. 1982) (defining “protect” as “[t]o keep from harm, attack, or injury”); The American Heritage Dictionary 1409 (4th ed. 2000) (defining “protect” as “[t]o keep from being . . . injured”). Further, the circumstances here are typical of a duty-to-protect negligence case: Balen has sued Peltier for damages, not claiming that Peltier injured her directly, but rather claiming that he had an obligation to safeguard her from injury by another person or thing. See, e.g., Harper, 499 N.W.2d at 473 (involving negligence claim by plaintiff against a defendant for injury suffered from plaintiff’s dive into shallow water). Because Balen concedes that there was not a special relationship between the parties, we need not address whether the risk was foreseeable. See Donaldson, 539 N.W.2d at 792 (requiring that plaintiff establish both a special relationship and the foreseeability of the risk involved).