This opinion will be unpublished and may not be cited except as provided by Minn.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 Unpublished Opinion RANDALL, Judge (Hon.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.