This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994).

                          State of Minnesota
                            in Court of Appeals

     Lesli Wiita,

City of Minneapolis, et al.,
     Steve Hanson,
     Bill Kenow,
     Steve Warian, et al.,
     Filed May 14, 1996
Kalitowski, Judge

Hennepin County District Court

File No. PI93019244

Stephen W. Cooper, Kathryn J. Cima, Stacey R. Everson, The Cooper Law Firm,
4747 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for

Surell Brady, City Attorney, Timothy S. Skarda, Assistant City Attorney,
300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402-
2453 (for Respondents City of Minneapolis, et al.)

Steve Hanson, 20319 Kensington Way, Lakeville, MN 55044 (Respondent Pro Se)

Bill Kenow, 9473 Able Street NE, Blaine, MN 55434 (Respondent Pro Se)

Michael R. Quinlivan, Elizabeth Truesdell Smith, Arthur, Chapman,
McDonough, Kettering & Smetak, P.A., 500 Young Quinlin Building, 81 South
Ninth Street, Minneapolis, MN 55402 (for Respondents Steve Warian, et al.)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief
Judge, and Foley, Judge.(*)
        [Footnote] (*)Retired judge of the Minnesota Court
        of Appeals, serving by appointment pursuant to Minn.
        Const. art. VI, § 10.
                        Unpublished Opinion

KALITOWSKI, Judge (Hon. John J. Somerville, District Court Trial

Appellant Lesli Wiita brought claims against the City of Minneapolis and
its police department, Officer Steve Hanson, Officer Bill Kenow, Steve
Warian, and John Warian as a result of alleged physical and sexual assaults
by Hanson. The district court granted summary judgment on all claims except
those against Hanson. We affirm.

On appeal from summary judgment, this court asks whether there are any
genuine issues of material fact and whether the district court erred in
applying the law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.
1993). This court views the evidence in a light most favorable to the party
against whom judgment was granted. Id.

The district court granted summary judgment on Wiita's negligence claim
against Steve and John Warian. The Warians hosted the party at which Wiita,
an invitee, alleges Hanson, an off-duty police officer, assaulted her.

Generally, a homeowner has no duty to protect against third-party criminal
activity. Erickson v. Curtis Inv. Co, 447 N.W.2d 165, 168 (Minn.
1989) (citing Pietila v. Congdon, 362 N.W.2d 328, 333 (Minn. 1985)
). A duty to protect is imposed only where a special relationship arises
between the parties and the risk of harm is foreseeable. Erickson,
447 N.W.2d at 168-69. A special relationship exists where an individual has
entrusted his or her safety to another, and the other has accepted that
entrustment. Id. at 168; Errico v. Southland Corp., 509
N.W.2d 585, 587 (Minn. App. 1993), review denied (Minn. Jan.27,

Taking the facts in a light most favorable to Wiita, John Warian made
vulgar remarks to Wiita and was present when Hanson physically assaulted
Wiita. Wiita has not, however, alleged facts indicating that a special
relationship arose between herself and the Warians. While Wiita claims she
expected John Warian to protect her, there is no evidence to indicate
Warian accepted such entrustment.

Wiita, in arguing the Warians owed her a duty, cites Peterson v.
Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972). However, as the
supreme court has stated in distinguishing Peterson
        we know of no case which imposes upon a
        homeowner the duty to protect persons invited to his
        residential premises from the criminal activities of
        third persons.

Pietila, 362 N.W.2d at 333.

Because no special relationship existed between the Warians and Wiita, the
district court properly granted summary judgment. Further, even if a
special relationship existed, Wiita has not alleged facts indicating there
was a foreseeable harm.

The district court granted summary judgment to Officer Kenow. Kenow, while
off-duty, witnessed the alleged physical assault. Wiita argues that Kenow's

failure to prevent the assault and failure to provide medical care support
claims for negligent and intentional infliction of emotional distress.

A person owes no duty to protect another person from the criminal acts of a
third person unless a special relationship exists. Erickson, 447
N.W.2d at 168. Mere status as a police officer does not give rise to an
affirmative duty to protect. Leaon v. Washington County, 397 N.W.2d
867, 873 (Minn. 1986). Wiita has not alleged facts indicating a special
relationship between herself and Kenow. Even assuming a special
relationship, there is no evidence to suggest Kenow could have prevented
the alleged physical assault, which ended immediately after it occurred.

With respect to intentional infliction of emotional distress, Wiita must
show extreme and reckless conduct. See id. Her claim,
however, is not that Kenow did something, but that he did nothing. While
Kenow perhaps should have sought medical help for Wiita, under these facts
he cannot be held civilly liable for such inaction. Therefore, the district
court properly granted summary judgment to Kenow.

The district court granted summary judgment in favor of the city, reasoning
that the officers acted as private citizens. Wiita claims the city is
liable based on respondeat superior and that the city and its officers are
liable under 42 U.S.C. § 1983.
1. Respondeat superior
A city is liable for the torts of employees acting within the scope of
employment. Minn. Stat. § 466.02 (1994). ``Scope of employment'' refers
to employee conduct in furtherance of an employer's interests. Edgewater
Motels, Inc. v. Gatzke, 277 N.W.2d 11, 15 (Minn. 1979). Relevant
factors include whether the employee intended to act on behalf of the
employer, whether the conduct is of the type authorized by the employer,
and whether the conduct occurs within authorized time and space
restrictions. Id. Intentional torts are ``almost invariably outside
the scope of employment.'' Yunker v. Honeywell, Inc., 496 N.W.2d
419, 422 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993).
Further, an employer is not legally responsible for employee actions in an
off-duty social setting. Leaon, 397 N.W.2d at 874.

Here, the officers were not acting within the scope of employment. They
attended a social party as private citizens, furthering no interests of the
city. They were off-duty and not in uniform. They did not display badges or
wear guns. The party was not organized or sponsored by the city. The
assaults were not the type of conduct authorized by the city. Accordingly,
the city cannot be liable under respondeat superior.
2. Section 1983
A person acting under color of state law is liable for depriving
another of constitutional rights. 42 U.S.C. § 1983. ``A public employee
acts under color of state law'' while acting in an official capacity.
West v. Atkins, 487 U.S. 42, 50, 108 S. Ct. 2250, 2255 (1988). Here,
the officers were at a party acting as private citizens rather than in an
official capacity. Accordingly, Kenow cannot be individually liable under
section 1983.

In order for a city to incur section 1983 liability, the city must be the
``moving force'' behind the deprivation of a right. Kentucky v.
Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105 (1985). Thus, there
must be an affirmative link between a custom or policy of the city and the
alleged deprivation. City of Oklahoma City v. Tuttle, 471 U.S. 808,
824 n.8, 105 S. Ct. 2427, 2436 n.8 (1985).

Here, Wiita argues the customs that caused her harm include the city's
failure to control off-duty officers and a ``code of silence'' under which
officers refuse to report fellow officers for violations of law. Wiita
cites cases from other jurisdictions holding cities liable under section
1983 for allowing a code of silence and for not punishing offending
officers. See Parrish v. Luckie, 963 F.2d 201 (8th Cir.

1992); Czajkowski v. City of Chicago, Ill., 810 F. Supp. 1428 (N.D.
Ill. 1992); Sherrell v. City of Longview, 683 F. Supp. 1108 (E.D.
Tex. 1987). In those cases, however, the cities repeatedly failed to
discipline or control the conduct of the assaulting officer. Wiita presents
no facts demonstrating Hanson had violent propensities about which the city
knew or could control. Similarly, Wiita presents no facts demonstrating
that the alleged ``code of silence'' caused the assaults against her or
otherwise caused her harm.

Wiita also alleges the city failed to train officers not to assault the
public. A city is liable for the failure to train where not training
amounts to a ``deliberate indifference'' to citizen rights. City of
Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204
(1989). Here, Wiita has not shown the city engaged in deliberate
indifference. As the district court stated
        [h]opefully the day has not come when the
        supervision and training of police officers will
        require indoctrination against committing felonies
        such as rape.

Accordingly, we conclude the city cannot be liable under section 1983.