This opinion will
be unpublished and
may not be cited
except as provided by
Minn. Stat. §
480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF
Jane Doe and John
Doe, as parents and
natural guardians of
J. A. H., a minor,
District No. 152,
City of Moorhead,
Service of Minnesota,
Filed January 16,
Clay County District Court
File No. C3-05-305
Randolph E. Stefanson, Kent B. Gravelle, Stefanson Law, 403
Center Avenue, 3rd Floor, P.O. Box 1287, Moorhead, MN 56561 (for appellants)
James E. Knutson, Carla J. White, Knutson, Flynn &
Deans, P.A., 1155 Centre Pointe Drive, Suite 10, Mendota Heights, MN 55120 (for
respondent ISD No. 152)
Jon K. Iverson, Pamela J. Whitmore, Iverson Reuvers, 9321
Ensign Avenue South, Bloomington, MN 55438 (for respondent City of Moorhead)
and decided by Halbrooks,
Presiding Judge; Klaphake,
Judge; and Stoneburner,
U N P U B L I S H E D O P I N I O N
John and Jane Doe, parents of a minor victim of criminal sexual conduct,
challenge the district court’s grant of partial summary judgment in favor of
respondents Independent School District No. 152 and the City of Moorhead. Appellants argue that the district court
erred in determining that (1) the school district did not have a duty to both protect
J.A.H. from Robert Hersrud and to prevent Hersrud from entering school grounds
and the Sports Center
and (2) the city did not have a duty to protect J.A.H. while she was in the Sports Center. Appellants also argue that (1) the Sports Center
is not a recreational facility for purposes of recreational immunity under
Minn. Stat. § 466.03, subd. 6e (2006), and (2) statutory immunity does not
apply to the city under Minn. Stat. § 466.03, subd. 6 (2006). We affirm.
brought suit on behalf of their daughter J.A.H., who was a victim of criminal
sexual conduct when she was a minor. J.A.H.
has been diagnosed with learning and comprehension disabilities, and she
received special-education services through respondent Independent School
District No. 152 (school district) through eighth grade.
2002, J.A.H., then age 15, and Robert James Hersrud, then age 18, met in a
public park near Hersrud’s home in Moorhead. They subsequently became involved in a sexual
relationship and had sexual contact on multiple occasions that preceded the
conduct involved in this claim. Hersrud
suffers from a mental disability as a result of a head injury he sustained as a
During the 2002-03
school year, J.A.H. and Hersrud had sexual contact on a number of occasions in the
neighborhood park, Hersrud’s home, and the City of Moorhead Sports Center (Sports Center). The Sports
Center is a recreational facility that
is across the street from the high school; it is owned and operated by
respondent City of Moorhead
(city) and is used by the public and the city for various activities. The city contracts out use of the Sports Center
to various entities, including the school district. The terms of the 2002-03 contract between the
city and the school district made the school district responsible for
supervising students’ use of the Sports
Center when school use
occurred during the hours of the school day as well as during any after-school extracurricular
activities. The terms of the contract
also stated that the city would provide reasonably safe premises and would maintain
the premises in a reasonably safe condition.
the fall and winter of the 2002-03 school year, J.A.H. and Hersrud had sexual
contact on three separate occasions in one of the locker rooms in the Sports Center. All of the encounters took place between 3:05
p.m. and 4:00 p.m., after school was dismissed, but before J.A.H.’s mother came
to pick J.A.H. up from school. It is
undisputed that there were no school-sponsored activities taking place at the Sports Center
on these occasions. The record indicates
that J.A.H. met Hersrud either in the Sports
Center or on the public street between
the Sports Center and the school. After each incident, J.A.H. left the Sports Center
and returned to the high school to wait for her mother to pick her up.
suspecting that J.A.H. and Hersrud were having a relationship, Jane Doe
notified the school district that she wanted the school to keep a man she
described as having long hair in a pony tail away from J.A.H. But Jane Doe did not know Hersrud’s name and did
not specifically identify him. J.A.H.
did not tell anyone about her relationship with Hersrud until the spring of
2003, when she told Jane Doe that she was having sexual relations with him. J.A.H. revealed the information to her mother
after experiencing physical symptoms of a sexually transmitted disease, later
identified as chlamydia. Jane Doe met
with Hersrud’s mother and informed her that she did not want Hersrud to see
J.A.H. Appellants also transferred
J.A.H. to a school district in West
Fargo, North Dakota,
believing that that school had better security.
parents brought claims against the school district, the city, and Hersrud, alleging,
inter alia, failure to provide adequate supervision, protection, and security
and failure to enact and enforce appropriate rules, regulations, and
policies. Hersrud was also charged
criminally and was convicted of third-degree criminal sexual conduct. The school district and the city moved for
partial summary judgment, which the district court granted. With regard to the school district, the
district court determined that because “the school day was over and the Sport[s]
Center was not in use for a school activity . . . the School
District had no legal duty to protect J.A.H. from the claimed
injuries.” With regard to the city, the
court held that the city did not owe J.A.H. a special duty, and because the
harm to J.A.H. was not foreseeable, the city had no duty to protect J.A.H. from
her injures. This appeal follows.
D E C I S I O N
56.03 of the Minnesota Rules of Civil Procedure provides, in relevant part,
that summary judgment shall be granted “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
either party is entitled to a judgment as a matter of law.” When the facts material to the resolution of the litigation
are not in dispute and, as a matter of law, compel only one conclusion, summary
judgment is appropriate. See Illinois
Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 634 (Minn. 1978).
“On an appeal from
summary judgment, we ask two questions: (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,
1990). No genuine issue for trial exists
“[w]here the record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574,
587, 106 S. Ct. 1348, 1356 (1986); see
also DLH, Inc. v. Russ, 566
N.W.2d 60, 71 (Minn.
1997). “[T]he reviewing court must view
the evidence in the light most favorable to the party against whom judgment was
granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
We review de
novo “whether there are any genuine issues of material fact and whether the
district court erred in its application of the law.” Meintsma v. Loram Maint. of Way, Inc., 684 N.W.2d 434, 438 (Minn. 2004) (quotation
omitted). We will not reweigh the evidence or determine the
credibility of affidavits and other evidence.
DLH, 566 N.W.2d at 70.
To prevail on a negligence
claim in Minnesota, a plaintiff must prove: (1) that the defendant had a legal
duty to the plaintiff to take some action; (2) breach of that duty; (3) that
the breach of that duty was the proximate cause of plaintiff’s harm; and (4)
injury. Gylten v. Swalboski, 246 F.3d 1139, 1141 (8th Cir. 2000) (citing Gilbertson v. Leininger, 599 N.W.2d 127,
130 (Minn. 1999)); Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).
If the record
lacks proof of any of the elements of the negligence claim, the defendant is
entitled to summary judgment. Funchess v. Cecil Newman Corp., 632
N.W.2d 666, 672 (Minn.
Whether a duty
exists depends on the relationship among parties, the foreseeability of harm to
others, and public policy concerns. Erickson v. Curtis Inv. Co., 447 N.W.2d
165, 168-69 (Minn.
1989). Whether a party has a duty is an issue for the courts
to decide as a matter of law and is reviewed de novo. H.B.
ex rel. Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn.
1996); ServiceMaster of St.
Cloud v. GAB Bus. Servs., 544 N.W.2d 302, 307 (Minn. 1996).
Appellants contend that (1) the school
district had a duty to protect J.A.H. from Hersrud for a “reasonable amount of
time after classes [were] dismissed”; (2) a genuine issue of material fact
exists regarding whether the Sports Center was under the control and
supervision of the school district at the time of the incident; and (3) the school
district had a legal duty to prevent Hersrud from entering the school grounds
and the nearby Sports Center.
With respect to
the school district’s duty, the parties cite the Minnesota Supreme Court’s
decision in Verhel v. Indep. Sch. Dist.
No. 709, 359 N.W.2d 579 (Minn.
1984), as controlling. In Verhel, a plaintiff cheerleader brought
an action against the school district for injuries she suffered as a passenger
in a motor-vehicle accident that occurred at 5:00 a.m. on a Saturday morning
when she and eleven other cheerleaders were bannering the homes of football
players in anticipation of the team’s first game later that day. 359 N.W.2d at 583. Verhel was riding in a van that was driven by
another cheerleader and owned by the driver’s father. Id. Despite the fact that the school’s first
football game was being played that night, classes did not start until the
following week. Id.
at 584. Plaintiff claimed that the
school district negligently supervised an authorized activity. Id. at
The jury found for
plaintiff, determining that the school district was 35% at fault, the van
driver was 39% at fault, and the other driver was 26% at fault. Id. The school district appealed, arguing, among
other things, that it did not have a legal duty to supervise the cheerleaders
with respect to the bannering activity because “the activity was not
specifically approved or sponsored by the school district and took place off
school premises, during summer vacation, on a weekend, [and] in the early
morning hours.” Id.
Supreme Court affirmed the district court’s judgment. The supreme court first examined the duty of
a school to its students, stating that a school must “use ordinary care and . .
. protect its students from injury resulting from the conduct of other students
under circumstances where such conduct would reasonably have been foreseen and
could have been prevented by the use of ordinary care.” Id. at 586 (quoting Sheehan v. St. Peter’s Catholic Sch., 291 Minn. 1, 3, 188 N.W.2d 868, 870 (1971)). But the court also noted that “[t]here is no
requirement of constant supervision of all the movements of pupils at all
times” and that while “[a] school district is not relieved of liability because
there was no prior notice of danger . . . [a] teacher, generally, is not
required to anticipate the hundreds of unexpected student acts which occur
daily or to guard against dangers inherent in rash student acts.” Id. (quotation
and citations omitted). The court cautioned
against holding a school district liable for the safety of its students while
in transit to or from a school activity, but stated that “[a] school district
may be held liable . . . where it ha[s] undertaken to provide [control and]
Under the facts of
Verhel, the supreme court concluded
that the school district had assumed control and supervision over cheerleading
at the high school “so as to have a duty to provide regulations and supervision
for squad members while engaged in cheerleading activities.” Id. at
587. This conclusion was underscored by
the following facts: The cheerleaders
were governed by Minnesota High School League rules that the school district
administered, the principal testified that cheerleading was a sanctioned school
activity, a paid faculty supervisor was provided for the squad, and supervising
transportation arrangements was part of the supervisor’s responsibilities. Id. The supreme court also noted that there was
evidence to support findings that the school district’s responsibility
continued during the summer months and that the practice of bannering athletes’
homes before the first football game was a traditional, recognized activity of
the squad. Id.
at 588. And, while disputed by the
cheerleaders’ faculty supervisor, there was testimony at trial that the faculty
supervisor was in attendance at the cheerleaders’ regular weekly meeting when
the plan to banner was formulated. Id. Therefore,
the supreme court held that “the school district had a duty to supervise, by
the exercise of reasonable care, the planning and conduct of the bannering
activity of the cheerleaders.” Id.
We agree with the
school district in this case that the facts in Verhel that resulted in a determination that a duty to Verhel
existed do not present themselves here. Like
J.A.H., the plaintiff in Verhel was
injured off school premises and outside of the regular school day. But the plaintiff in Verhel was injured while participating in a school-sponsored and school-supervised
activity. Here, J.A.H. was not engaged
in any school-sponsored or school-supervised activities when the incidents at
the Sports Center took place. Moreover, appellants’ contention that the school
district had a duty to prevent Hersrud from entering the Sports Center
also lacks merit, as Hersrud was not even a student at the time of the incidents. Therefore, we conclude that the school district
had no duty to control and supervise J.A.H. or Hersrud when they met after
school hours, off school premises, and outside any school-sponsored activity.
In addition, the school
district had a contract with the city to use the Sports Center
for school activities, both during and after school. The contract provided, in relevant part, that
[t]he CITY shall
be responsible for certain designated areas of upkeep and maintenance of the
Sports Center building during the term of this Agreement; however, the SCHOOL
agrees that it will provide individuals to fully supervise physical education,
extra curricular activities, and varsity and junior varsity athletic programs
within the Sports Center building while the building is being used as a part of
this Agreement. . . . The
CITY shall exclusively maintain and provide materials and supplies for upkeep,
safety, and cleanliness throughout the remainder of the building.
. . . [T]he CITY
agrees to provide reasonable safe premises and to maintain the premises in a
reasonably safe condition. Nothing in
this lease shall be deemed to limit or abrogate this duty of the CITY.
Although a school security guard
occasionally patrolled the Sports Center during the school day, the agreement between
the school district and the city made the school district responsible for
supervising students using the Sports
Center only while the school was actually using
the facility during the school day or for after-school activities. Here, there is no dispute that on the three
occasions that J.A.H. and Hersrud met at the Sports
Center, the school day was over, and
the Sports Center was not being used by the school
for any after-school activities. Although
appellants assert that the Sports Center was essentially a school building, the record
indicates that at the time the incidents took place, J.A.H.’s school and the Sports Center
were not connected but were separated by a public street.
to the school district’s agreement with the city the Sports Center was not
under the control or supervision of the school district at the time of the
incidents, we conclude that the school district had no duty to protect J.A.H.
from Hersrud or to prevent Hersrud and J.A.H. from entering the Sports Center. We therefore affirm the district court’s
grant of summary judgment to the school district.
Appellants also argue that the city
had a legal duty to protect J.A.H. from any injuries caused by Hersrud while
J.A.H. was inside the Sports
Center, pointing to the
agreement between the city and the school district which stated that the city
would “provide reasonable safe premises and . . . maintain the
premises in a reasonably safe condition.”
There is no general duty to control the conduct of a third person to
prevent him from causing physical harm to others. Johnson
v. State, 553 N.W.2d 40, 49 (Minn.
1996) (citing Restatement (Second) of Torts
§ 315 (1965)). A municipality
does not have a duty to prevent the misconduct of a third person unless there
is a special relationship between the parties or if the defendant could foresee
the harm incurred by the plaintiff. Cracraft v. City of St. Louis
Park, 279 N.W.2d 801, 804 (Minn. 1979); see also Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993) (stating “an affirmative duty to
act only arises when a special relationship exists between the parties”); Hage v. Stade, 304 N.W.2d 283, 286 (Minn. 1981) (stating
that “[a] duty owed to the public in general cannot be the basis of a
negligence action, but a special duty owed to individual members of the public
or to a special class can be the basis of such a claim”).
“In order to find
that a special relationship exists, 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.” Gylten,
246 F.3d at 1142 (quoting Gilbertson,
599 N.W.2d at 131) (alteration in original) (quotation omitted).
Generally, a special relationship
giving rise to a duty to warn 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 under circumstances in which that other person
is deprived of normal opportunities of self-protection.
499 N.W.2d at 474 (citing Restatement (Second) of Torts § 314A
(1965)). “[S]uperior knowledge of a
dangerous condition by itself, in the absence of a duty to provide protection,
is insufficient to establish liability in negligence.” Id. at 475. A court may look to at least four factors in
considering whether a “special duty” exists, including: (1) actual knowledge by
the municipality of the dangerous condition; (2) reasonable reliance by
individuals on the municipality’s specific actions; (3) a statute or ordinance
creating a duty of care to protect a specific class of persons rather than the
general public; and (4) whether the municipality actually took care not to
increase the risk of harm. Cracraft, 279 N.W.2d at 806-07.
Here, the Sports Center
was not in a position to protect J.A.H. from the harm she suffered. First, the city had no actual knowledge that
the incidents between J.A.H. and Hersrud were occurring at the Sports Center. While appellants argue that the Sports Center
should have been aware that J.A.H. and Hersrud were having sex in a locker room
because an empty condom wrapper was once found on the locker room floor by a Sports Center
employee, there was no evidence to establish that the wrapper related to the
sexual activity of J.A.H. and Hersrud.
Second, the city did not make any representations which would have
caused J.A.H. to rely on actions taken by the city or “forego other
alternatives of protecting” herself. Cracraft, 279 N.W.2d at 806-07. In addition, there is no applicable statute
or ordinance imposing a special duty owed by the city to a specific class of
persons such as students, as opposed to the public as a whole. Finally, there is no evidence in the record
to suggest that the city took actions that increased the risk of harm to J.A.H. Therefore, we conclude that there was no
special relationship that existed between J.A.H. and the city.
The scope of the duty to control another’s conduct is
also limited by the foreseeability of the harm. Lundgren
v. Fultz, 354 N.W.2d 25, 28 (Minn.
1984). The test of foreseeability is
whether a defendant was aware of facts suggesting that a plaintiff was being
exposed to an unreasonable risk of harm. Spitzak
v. Hylands, Ltd., 500 N.W.2d 154, 158 (Minn. App. 1993), review denied (Minn. July 15,
1993). “In determining whether a danger
is foreseeable, courts look at whether the specific danger was objectively
reasonable to expect, not simply whether it was within the realm of any
conceivable possibility.” Whiteford v. Yamaha Motor Corp., 582
N.W.2d 916, 918 (Minn.
argument that the city should have foreseen the harm suffered by J.A.H. here is
unpersuasive. First, appellants argue
that students often entered the Sports
Center after school was dismissed,
and thus it should have been foreseeable that harm such as this would
occur. But the record indicates that students
typically used the Sports
Center after school only when
school-sponsored activities were taking place.
In addition, despite knowing that students may visit the Sports Center
after school, it is unreasonable to expect that the city could have foreseen
the incidents that occurred here.
Second, contrary to appellants’ argument, the condom wrapper found by a Sports Center
employee in a locker room does not suggest that the city should have foreseen
that J.A.H. was being exposed to an unreasonable risk of harm. Finally, the record indicates that the
surveillance cameras set up in the Sports
Center were set up by the
vending company solely to monitor the vending machines, not to secure the
safety of the building, as appellants contend.
For these reasons, we conclude that the harm suffered by J.A.H. was not
we conclude that the city did not owe J.A.H. a duty to protect her from the
injuries caused by Hersrud while inside the Sports Center and affirm the
district court on that basis, we do not reach the issue of the city’s
recreational immunity pursuant to Minn. Stat. § 466.03, subd. 6e (2006), or the
city’s statutory-immunity argument pursuant to Minn. Stat. § 466.03, subd. 6