This opinion will be unpublished and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
Filed July 25, 2006
Fillmore County District Court
File Nos. C4-04-178, C6-04-179
Wilbur W. Fluegel, Fluegel Law
John C. Dunlap, Stacie M. Otte, Dunlap & Ritts, P.A., 7000 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, Minnesota 55415; and
Jeffrey Hanson, Hanson Law Office, 119 Sixth Street Southwest, Suite B, Rochester, Minnesota 55902 (for appellants St. Mane, et al.)
Jeff M. Zalasky, Jon K. Iverson,
Pamela F. Whitmore, Iverson Reuvers, LLC,
Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
brought this consolidated action for personal injuries and economic damage
incurred after the police chief of the City of
We affirm the district court’s grant of summary judgment on the negligent-retention and supervision claims, as well as the NIED claims. But because we conclude that genuine issues of material fact on the foreseeability of the employee’s action preclude summary judgment on the vicarious liability and negligent hiring issues, we reverse summary judgment on these issues and remand them for trial.
The fire occurred shortly after Tuchek reported to the Fillmore County Sheriff’s Department that he was going on duty to investigate a report of rock throwing in downtown Lanesboro. Tuchek testified at a deposition that he did not intend to burn the buildings, but that his intent in starting the fire was to “give [him] an excuse to go up and knock on [Dawley’s] door and she would answer the door.” After he ignited the fire, Tuchek went inside and knocked on Dawley’s and Cockrum’s doors; Dawley, her daughter, and Cockrum exited the building.
Before the city hired Tuchek as a
police officer in 1998, the city hired an investigator to check his background,
as required by state rules imposing standards for the Minnesota Police Officers
Standards and Training board (POST standards). See
In 2000, Tuchek applied for a job
with the City of
In 2001, when Carlin retired, the city hired Tuchek as police chief with no additional investigation. In February 2002, the city investigated a report that Tuchek had stopped a sixteen-year-old girl, issued her a “fake” traffic ticket, and commented on her breasts. Tuchek admitted issuing the “fake” ticket but denied making the comments. During that same month, the city investigated a report of a pornographic screen saver on a city computer. Tuchek was able to describe the material after it was removed from the computer. The city administrator also noted that Tuchek was “harassing [city] employees,” that he was “flashing his badge” off-duty at girls in Winona bars, and that he told a city employee that he might commit suicide because has was going to “lose everything.” The city council voted to issue Tuchek a written reprimand and ordered him to take classes in community awareness, and community relations in the area of power, age, and gender, with scheduled three- and six-month reviews. Three weeks later, the fire occurred.
Appellants filed separate actions alleging the city’s liability on a theory of respondeat superior for Tuchek’s intentional or negligent acts in setting the fire as well as the city’s direct negligence in hiring, retaining, and supervising Tuchek. The city denied liability for Tuchek’s intentional or negligent acts under respondeat superior or direct negligence theories and asserted defenses of statutory and vicarious official immunity. Tuchek, who was convicted of arson arising from the 2002 fire, did not file an answer. The district court issued summary judgment for the city on all claims in both actions. The district court concluded that (1) under a theory of vicarious liability, no genuine issue of material fact existed as to (a) whether the city should have foreseen Tuchek’s intentional conduct, and (b) whether Tuchek’s negligent actions were motivated at least in part by his desire to serve the city’s interests; (2) the application of both statutory and vicarious official immunity defenses precluded direct claims of negligent supervision and retention; (3) although immunity defenses did not preclude the direct negligent-hiring claim, summary judgment was appropriate because no genuine issues of material fact existed on the city’s duty of care and the foreseeability of Tuchek’s conduct; and (4) no genuine issues of material fact existed on the physical manifestations of plaintiffs’ emotional distress, making summary judgment appropriate as a matter of law. In this consolidated appeal, respondent challenges, by notice of review, the district court’s determination that immunity defenses did not bar the negligent-hiring claim.
D E C I S I O N
appeal from summary judgment, an appellate court determines “whether there are
genuine issues of material fact and whether the district court erred in
applying the law.” Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 411 (
An employer may be held vicariously
liable under the principle of respondeat superior for an employee’s torts
committed within the scope of employment.
Schneider v. Buchman, 433
N.W.2d 98, 101 (
the district court correctly determined that a material factual issue existed
on the factor of work-related limits of time and place, we review the second
factor, whether an act is related to an employee’s duties, by considering
whether the act was foreseeable.
Thus, evidence that a particular act is a well-known risk in a certain industry raises a material factual issue on the foreseeability of that conduct under a theory of respondeat superior. See, e.g., Fahrendorff,597 N.W.2d at 911 (concluding that affidavit stating that sexual abuse by group home staff was a “well-known hazard” in industry presented material factual issue on whether employee’s sexual assault was foreseeable); see also Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306, 311 (Minn. 1983) (noting testimony that sexual relations between a patient and a therapist was a well-known hazard and “thus, to a degree, foreseeable and a risk of employment”). Additionally, we recognize that as a matter of public policy, the power and authority granted to police officers may support the broad imposition of respondeat superior liability for police misconduct. See Mary M. v. City of Los Angeles, 814 P.2d 1341, 1349–50 (Cal. 1991) (holding city who employed police officer vicariously liable for officer’s sexual assault on detainee, stating that “[i]n view of the considerable power and authority that police officers possess, it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct . . . . the risk of such tortious conduct is broadly incidental to the enterprise of law enforcement”).
We conclude that on the record as presented, a material factual issue exists on the foreseeability of Tuchek’s conduct. Although the district court viewed Tuchek’s fire setting as an isolated incident, the record reflects that it may have been part of a broader pattern of sexually harassing behavior. Appellants submitted the expert affidavit of psychologist Harold Brull, containing the opinion that the fire was a “hero fire,” related to sexual harassment. Tuchek acknowledged that the only reason he set the fire was to attract the attention of appellant Dawley, his former girlfriend. And the city has a policy defining conduct unbecoming a police officer, which specifically prohibits officers either on or off duty from making unwelcome sexual advances or engaging in “other unwelcome verbal or physical conduct or communication of a sexual nature.” Lanesboro Police Dep’t Policy Conduct Unbecoming a Peace Officer, Principle Four, Rule 4.5,(1996). This rule falls within the general provision recognizing the risk of misuse of a police officer’s power and authority as broadly incidental to the city’s police power. See id. at Principle Four (stating that “[p]eace officers shall not, whether on or off duty, exhibit any conduct which discredits themselves or their department or otherwise impairs their ability or that of other officers or the department to provide law enforcement services to the community”). Therefore, we reverse the district court’s grant of summary judgment on the issue of respondeat superior as applied to Tuchek’s intentional acts.
Both complaints additionally alleged
claims of Tuchek’s negligence and that he placed respondents “in a zone of
danger.” This may be interpreted as a
claim of respondeat superior for negligent conduct. An employer may be held liable for an
employee’s negligent act if it can be “shown that his conduct was, to some
degree, in furtherance of the interests of his employer.” Edgewater
Motels, Inc. v. Gatzke, 277 N.W.2d 11, 15 (
Appellants have alleged direct claims
against the city for the negligent hiring, retention, and supervision of
Tuchek, against which the city has asserted defenses of both statutory and
vicarious official immunity. The application of immunity presents a
question of law that this court reviews de novo. Gleason v. Metro. Council Transit Operations, 582
N.W.2d 216, 219 (
a municipality is generally subject to liability for the torts of its officers
and employees,Minn. Stat. § 466.02
(2004), liability is excluded for “[a]ny claim based upon the performance or
the failure to exercise or perform a discretionary function or duty, whether or
not the discretion is abused.”
In reviewing a claim of statutory
immunity, the courts identify the precise governmental conduct being challenged
and then evaluate that conduct to distinguish between planning and operational
functions. Schroeder v.
on hiring, retention and supervision are frequently considered policy-level
activities that are protected by statutory immunity. Fear v.
Indep. Sch. Dist. 911, 634 N.W.2d 204, 212 (Minn. App. 2001), review denied (
conclude that the district court correctly granted summary judgment on the
issue of statutory immunity on appellants’ negligent-retention and supervision
claims. The state regulations governing police officers provide that “internal
discipline is properly a function of the appointing authority.”
we also agree with the district court that the city failed to sustain its
burden of showing that it is entitled to statutory immunity on appellants’
negligent-hiring claim. The POST
regulations require that a person eligible to be licensed as a police officer
meet minimum selection standards.
Vicarious official immunity
doctrine of common-law official immunity, which protects government officials
in the course of their official duties, is “intended to protect public
officials from the fear of personal liability that might deter independent
action.” Janklow v.
immunity protects only discretionary acts, which involve the exercise of
individual professional judgment, and does not protect ministerial acts, which
involve merely the execution of specific duties, arising from fixed facts,
which dictate the scope of an employee’s conduct. Schroeder,
708 N.W.2d at 506. “[T]he existence of a
policy that sets a sufficiently narrow standard of conduct will make a public employee’s
conduct ministerial if he is bound to follow [that] policy.” Munn v.
Mornson, 708 N.W.2d 475, 491 (
As with statutory immunity defenses, we conclude that the district court did not err in issuing summary judgment based on vicarious official immunity for the city employees’ acts in retaining and supervising Tuchek. The city administrator used her professional judgment to investigate claims regarding Tuchek’s harassment of the minor and the incident of the pornography on the city computer. She made the determination that Tuchek’s threat of suicide was not credible, which helped lead to the city’s decision to retain and discipline Tuchek, rather than terminate his employment. These recommendations were within her discretion as a professional employee and entitled her to official immunity, which applies to the city on principles of vicarious liability.
John Carlin’s recommendation to hire Tuchek without an oral psychological
examination and Carlin’s failure to inform the city council of Tuchek’s
termination from police employment in Colorado for failure to meet standards implicate
his fixed, ministerial duties under the POST regulations to affirm that Tuchek
had met the POST requirements and to maintain documents showing the fulfillment
of those requirements. See
liability for negligent hiring is “predicated on the negligence of an employer
in placing a person with known propensities, or propensities which should have
been discovered by reasonable investigation, in an employment position in
which, because of the circumstances of the employment, it should have been
foreseeable that the hired individual posed a threat of injury to others.” Ponticas
v. K.M.S. Invs., 331 N.W.2d 907, 911 (
district court concluded that summary judgment was appropriate on the
negligent-hiring issue because the evidence did not establish a genuine issue
of material fact on the foreseeability of Tuchek’s act of fire setting. Although the court should decide the issue of
foreseeability as a matter of law when the issue is clear, “[i]n close cases
the question of foreseeability is for the jury.” Whiteford
by Whiteford v. Yamaha Motor Corp., 582 N.W.2d 916, 918 (
While we acknowledge that the city could not have foreseen Tuchek’s specific fire-setting act, the issue of whether his conduct was foreseeable in a direct-negligence sense extends to the totality of the circumstances surrounding his hiring. The record shows that although Tuchek did not have a history of violent behavior when he was hired, he did have a history of sexually harassing women, and an issue of material fact exists regarding whether an oral psychological examination or a more thorough background search would have disclosed this information. In addition, the scope of the city’s duty in hiring is at least in part dictated by the job duties of police officers, who are expected to work frequently with the public in high-stress situations, where they may have significant power. Cf. Yunker, 496 N.W.2d at 423 (holding that employer did not owe duty at time of employee’s hire to protect co-worker when employee was maintenance worker whose job required no exposure to the public and limited exposure to co-workers).
Therefore, we conclude that a material factual issue exists on whether the acts of the city and Carlin as its agent in failing to follow POST standards by requiring an oral psychological evaluation and a thorough background search, followed by placing Tuchek in a position where he had police authority and could use that authority to harass women, breached a duty to appellants when the results of that examination or search may have yielded information preventing his hire. Further, a material factual issue exists as to whether this breach proximately caused appellants’ damages. See Ponticas, 331 N.W.2d at 915 (stating that negligence in hiring apartment caretaker found by jury was “clearly” proximate cause of injury to plaintiffs when it was the only reason tortfeasor was on premises, and he was provided with passkey to enter apartment). Therefore, because material factual issues exist regarding duty and causation, we conclude that the district court erred in granting summary judgment on the issue of negligent hiring, and we reverse and remand that issue for trial.
Dawley and Cockrum challenge the district court’s determination that summary
judgment was proper on their emotional distress claims because neither of them
provided evidence of physical injuries.
A plaintiff wishing to recover for NIED must prove the four elements of
a negligence claim—duty, breach, injury, and causation—as well as three
additional elements specific to NIED claims: presence in the zone of danger of
physical impact, reasonable fear for own safety, and severe emotional distress
“with attendant physical manifestations.” Engler
v. Illinois Farmers Ins. Co., 706 N.W.2d 764, 767 (
Dawley and Cockrum allege some physical manifestations of emotional distress. But even if we were to determine that these allegations posited sufficient physical injury to survive summary judgment, the history of the parties’ confidential medical records fails to substantiate a genuine issue of material fact on the causation of the parties’ distress by Tuchek’s setting of the fire. See K.A.C., 527 N.W.2d at 558 (stating the causation requirement for NIED claims). Thus, we affirm summary judgment on this issue.
Affirmed in part, reversed in part, and remanded.
 Although the issue of negligent supervision “derives from the respondeat superior doctrine” and relies on connection to the employer’s chattels or premises, Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993), it is a separate theory of direct liability that relies on an employer’s failure to use ordinary care in supervising an employee. Oslin v. State, 543 N.W.2d 408, 415 (Minn. App. 1996), review denied (Minn. Apr. 1, 1996).