This opinion will be unpublished and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
                              C5-95-2539

     Marc Tullis,
     Appellant,


vs.

Federated Mutual Insurance Company, et al.,
     Respondents.


Filed June 25, 1996
Affirmed
Randall, Judge

Hennepin County District Court

File No. 94-19539

Carter J. Bergen, Carter J. Bergen, P.A., Suite 420, Hamm Building, 408
Saint Peter Street, Saint Paul, MN 55102 (for Appellant)

Shawn M. Raiter, King & Hatch, P.A., Six West Fifth Street, Suite 800,
Saint Paul, MN 55102 (for Respondents)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and
Stone, Judge.
                                     
                        Unpublished Opinion

RANDALL, Judge (Hon. Pamela G. Alexander, District Court Trial
Judge)

Appellant challenges the district court's order dismissing his action for
failure to state a cause of action on which relief may be granted. We
affirm.
                                     
                               Facts

Appellant Marc Tullis underwent back surgery following a work-related
injury. After receiving worker's compensation benefits through respondent
Federated Mutual Insurance Company (Federated Mutual), appellant was
referred to Susan Mollenhauer, a qualified rehabilitation consultant (QRC).

Six weeks after surgery, Mollenhauer referred appellant to Work Recovery
Centers of Minnesota, Inc. (Work Recovery), for a functional capacity
evaluation (FCE). FCEs are routinely administered to assist in determining
an employee's capacity to return to work. As part of a test to evaluate
work readiness, appellant was asked by an employee of Work Recovery to lift
approximately 75 pounds. Appellant alleges that while lifting the weight,
he reinjured his back.

Appellant brought suit against Federated Mutual and its employee
Mollenhauer alleging that Mollenhauser was negligent in recommending
appellant undergo the FCE six weeks after back surgery. Respondents moved
to dismiss the complaint for failure to state a claim on which relief could
be granted, arguing that they owed no legal duty to protect appellant from
the negligence (if any) of a third party. The district court granted
respondents' motion and dismissed the action noting, that ``Minnesota does
not recognize a cause of action for negligent referral.'' This appeal
followed.
                                     
                              Decision

In reviewing an action dismissed for failure to state a claim on which
relief may be granted, this court's review is limited to whether the
complaint sets forth a legally sufficient claim for relief. Elzie v.
Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980). A claim
will prevail against a motion to dismiss if it is possible on any evidence
that might be produced consistent with complainant's theory to grant the
relief demanded. Northern States Power Co. v. Franklin, 265 Minn.
391, 395, 122 N.W.2d 26, 29 (1963).

The essential elements for a negligence claim are: 1) duty, 2) breach of
that duty, 3) proximate cause, and 4) injury in fact. Schweich v.
Ziegler, 463 N.W.2d 722, 729 (Minn. 1990). The existence of a legal
duty is a question of law. Mears Park Holding Co. v. Morse/Diesel, Inc.,
427 N.W.2d 281, 285 (Minn. App. 1988). When considering a question of
law, the reviewing court is not bound by and need not give deference to a
district court's determination. Frost-Benco Elec. Ass'n v. Minnesota
Pub. Utils. Comm'n., 358 N.W.2d 639, 642 (Minn. 1984). Appellant's
complaint, inter alia, alleges Mollenhauer was negligent in recommending a
functional capacity evaluation just six weeks after major back surgery, in
that she failed to consult with his treating physician prior to
recommending the FCE. According to appellant, Mollenhauer failed to
exercise the reasonable care a QRC would have under similar circumstances.
Appellant's claim is one for negligent referral.

Generally, under common law a person owes no duty to warn or protect
another who may be endangered by a third party. Cairl v. State, 323
N.W.2d 20, 25 n.7 (Minn. 1982). An exception to this rule exists, however,
where a
        
        defendant stands in some special relationship to
        either the person whose conduct needs to be
        controlled or to the foreseeable victim of that
        conduct.

Id. A special relationship may arise when one party entrusts his
safety to another person and that party accepts that trust. Erickson v.
Curtis Inv. Co., 447 N.W.2d 165, 168 (Minn. 1989). ``The existence of a
special relationship assumes that the harm represented by the third person
* * * is something that the other is in a position to protect against and
should be expected to protect against.'' Errico v. Southland Corp.,
509 N.W.2d 585, 587 (Minn. App. 1993), review denied (Minn. Jan.
7, 1994). An affirmative duty to control and protect has only been
recognized in the following special relationships: physician/patient,
parent/child, master/servant, landowner/invitee, common carrier/passenger,
innkeeper/guest, and certain custodial relationships. Olson v. Ische,
343 N.W.2d 284, 288 (Minn. 1984). Minnesota courts are ``cautious and

reluctant'' to recognize a special relationship and impose a duty on
business enterprises. Erickson, 447 N.W.2d at 168. To date, we can
find no Minnesota case recognizing the existence of a ``special
relationship'' between a QRC and a client creating a duty to protect the
latter from acts of a third party. The facts here do not mandate that we
create one.

Appellant argues that Mollenhauer, as a QRC, failed to perform professional
services in the manner prescribed by Minnesota Rules 5220.1801 (1994) and
is, therefore, negligent per se.(1)
        [Footnote] (1)Respondent argues that this issue is
        not properly before the court because it was not
        raised during the lower court proceedings. Matters
        not raised before the district court should not be
        considered for the first time on appeal. Schatz
        v. Davis, 354 N.W.2d 522, 524 (Minn. App. 1984).
        Although not specifically pleaded in his complaint
        or in the memorandum of law presented to the
        district court in response to respondents' motion to
        dismiss, appellant did raise the issue of negligence
        per se during the hearing held pursuant to
        respondents' motion to dismiss. The issue was raised
        before the district court and therefore is properly
        before this court.

In Minnesota, breach of a statute gives rise to negligence per se if the
person harmed by the violation is within the intended protection of the
statute and the harm suffered is of the type the legislation was intended
to prevent. Pacific Indem. Co. v. Thompson-Yeagher Inc., 260 N.W.2d
548, 558 (Minn. 1977). Minnesota Rules 5220.1800-1806 were promulgated
pursuant to Minnesota Statutes section 176.102, hence a violation of these
rules may constitute negligence per se. Alderman's Inc. v. Shanks,
536 N.W.2d 4, 7-8 (Minn. 1995) (violations of ordinances and
regulations promulgated pursuant to statutory authority may give rise to
negligence per se).

Appellant argues that Mollenhauer violated three parts of the prohibited
conduct section of Minn. R. 5220.1801. First, under Minn. R. 5220.1801,
subpt. 7, a QRC may make recommendations for referrals to appropriate
resources. Appellant argues that Mollenhauer failed to check with his
treating physician before referring him to a certified vocational evaluator
(CVE) for a functional capacities evaluation, and had she done so, his
physician would have rejected her recommendation. As noted, there is no
requirement that a QRC consult with a physician prior to making a
recommendation for referral. The rules simply state that a QRC ``may'' make
``recommendations for referrals to appropriate resources.'' Minn. R. 5220.
1801, subpt. 7. Appellant does not even infer, much less allege, that Work
Recovery was not an appropriate resource.

Second, appellant claims that respondents never monitored, notified, or
discussed the type of testing that he was to undergo, in violation of Minn.
R. 5220.1801, subpt.. 9(E). The rules do not state that a QRC is to
personally monitor each individual test an employee undergoes. Rather, the
rules contemplate that a QRC is to monitor the performance of services
provided as a whole, and not each individual test and evaluation
administered to clients.

Finally, appellant contends that respondents violated Minn. R. 5220.1801,
subpt. 9(F), which prohibits a QRC from engaging in conduct that
demonstrates a careless disregard for the health, welfare, or safety of a
rehabilitation client. Appellant asserts that by not warning or notifying
the CVE he was still recovering from major back surgery, respondents acted
with careless disregard for his safety and welfare. Although there would
have been nothing improper about respondents passing on their medical
knowledge, if any, to the CVE, appellant was the logical person to mention
his back injury to the CVE himself. Further, there is no rule requiring

respondents to specifically inform Work Recovery that appellant was
recovering from surgery.

Respondents argue that Minn. R. 5220, et seq., do not give rise to a claim
for negligence per se because they are merely empowering rules and are not
intended to create civil liability for QRCs. Respondents maintain that,
unlike building or fire codes or ordinances, these rules are not intended
to protect the public from some harm. They simply present the statutory
framework within which QRCs shall provide their services. Because we rule
for respondents on other grounds, we do not reach this issue.

It would have been better practice for the district court to convert the
hearing on respondents' motion to dismiss into one for summary judgment.
But we cannot say that the trial court erred as a matter of law in
dismissing for failure to state a cause of action. Minnesota has not yet
recognized a cause of action for ``negligent referral'' by a QRC working
for an insurance company.

We conclude the trial court properly dismissed appellant's cause of action
for failure to state a claim on which relief could be granted.

There were no published criminal opinions released June 25, 1996.