This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







Jane Doe and John Doe, as parents and

natural guardians of J. A. H., a minor,





Independent School District No. 152,



City of Moorhead,



Lutheran Social Service of Minnesota, et al.,




Filed January 16, 2007


Halbrooks, Judge


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)


            Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants 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. 


            Appellants 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.

            In 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 child.    

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. 

            During 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. 

            After 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.   

            J.A.H.’s 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.    


            Rule 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, 4 (Minn. 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. 2001).

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 583. 

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. at 585-86. 

The Minnesota 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] supervision.”  Id. 

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. at 589. 

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. 

Because pursuant 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.


Harper, 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. 1998).

            Appellants’ 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 foreseeable.   

            Because 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 (2006).