This opinion will be unpublished and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
C1-96-99

Augustus Phillip-Ashton Piper,
Trustee for the next of kin of
Efuwa-Tessa Jolyne Piper,
Appellant,

vs.

Elizabeth Battle, d/b/a Battle Daycare,
Respondent,

Ellissa Harrison, et al.,
Defendants.

Filed July 23, 1996
Affirmed
Willis, Judge

Hennepin County District Court
File No. 9314751

Michael L. Lander, Michael L. Lander, P.A., 270 Grain Exchange - North Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for Appellant)

Raymond L. Tahnk-Johnson, Lawrence J. Hayes, Jr. & Assocs., Suite 360, 2600 Eagan Woods Drive, Eagan, MN 55121 (for Respondent)

Thomas S. McEachron, Votel & Anderson, 5500 Wayzata Blvd., Suite 1250, Minneapolis, MN 55416 (for Respondent)

Considered and decided by Harten, Presiding Judge, Willis, Judge, and Stone, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

On appeal from an adverse grant of summary judgment, trustee father argues that his child's daycare provider was vicariously liable for his child's death and that the daycare provider negligently selected the driver with whom the child was riding at the time of the accident. We affirm.

FACTS

Respondent Elizabeth Battle operated a daycare business and provided 24-hour care for 11-year-old Tessa Piper, whose father was an over-the-road trucker.

Tessa regularly attended church with Battle. Ellissa Harrison, Battle's friend, attended the same church. On Sunday, June 27, 1993, Harrison, accompanied by several young children, stopped at Battle's house on her way to church. Tessa asked Battle if she could ride to church in Harrison's van, and Battle consented. On the way to church, Harrison lost control of the van, and Tessa died after being thrown out of the van as it rolled over.

Battle admitted that Harrison had worked intermittently at the daycare to pay a debt owed to Battle. She denied knowing whether Harrison had any medical or emotional problems or a criminal record and characterized Harrison as "a normal person."

Piper sued Battle, her daycare business, and Harrison and her husband, the van's owner. Piper settled with the Harrisons, but claimed that Battle was vicariously liable for Harrison's negligence because Harrison was Battle's employee and because Battle had a nondelegable duty of care for Tessa. Piper also asserted that Battle had negligently selected Harrison as Tessa's driver.

The district court granted Battle's motion for summary judgment, finding that the record lacked evidence to support the existence of an employment or agency relationship between Battle and Harrison, that Piper failed to show that Battle had a nondelegable duty, and that there was no evidence that Harrison posed a risk as a driver or that the accident was foreseeable.

D E C I S I O N

Summary judgment is proper if the district court determines that, on the basis of the documents and affidavits before the court, there is no genuine dispute as to material facts and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal, the reviewing court must determine "(1) whether there are any genuine issues of material fact, and (2) whether the trial court erred in its application of the law." City of Virginia v. Northland Office Properties, 465 N.W.2d 424, 427 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991). The facts must be viewed in "the light most favorable to the non-moving party." Marose v. Hennameyer, 347 N.W.2d 509, 511 (Minn. App. 1984). A party opposing summary judgment "cannot rely upon the naked allegations of his pleadings and must present specific facts showing genuine issues for trial * * *." Morgan v. McLaughlin, 290 Minn. 389, 393, 188 N.W.2d 829, 832 (1971).

I.

Employment relationship. A five-factor test guides a district court in determining whether an employment relationship exists. Kern v. Steele County, 322 N.W.2d 187, 189 (Minn. 1982). The court considers:

(1) The right of the employer to control the manner and means of performance of the work;

(2) The mode of payment;

(3) Furnishing of material or tools;

(4) Control of the premises where the work is to be performed; and

(5) Right of discharge.

Id. (citing Iverson v. Independent Sch. Dist. No. 547, 257 N.W.2d 572, 573 (Minn. 1977)). The district court concluded that Piper failed to present evidence on any of the criteria except mode of payment.

Piper claims that Battle's admission that Harrison worked for her is alone determinative that an employment relationship existed, regardless of the absence of proof on four of the five employment relationship factors. He also contends that this admission and the fact that he had seen Harrison at the daycare facility raise genuine issues of material fact sufficient to defeat a motion for summary judgment on the employment issue. We disagree.

The record supports the district court's conclusion that there was no employment relationship between Battle and Harrison on the day of the accident. While the district court must consider the facts in light of the five factors, "the determination of employment status is, ultimately, a legal one." Hunter v. Crawford Door Sales, 501 N.W.2d 623, 624 (Minn. 1993). Even resolving all doubts and inferences against Battle, her admission that Harrison sometimes worked for her is not conclusive proof that an employment relationship existed on the day of the accident. See id. (noting that "the right to control the means and manner of performance * * * is the most significant factor in determining the existence of an employment relationship"). Nothing in the record indicates that Battle hired Harrison to drive Tessa to church or that Battle had the right to control Harrison's actions on that day.

Moreover, how a party characterized the relationship is not determinative. Lakeland Tool & Eng'g, Inc., 450 N.W.2d 349, 352 (Minn. App. 1990) ("The label given by the parties themselves * * * is not determinative * * * ."). The record is devoid of evidence that Battle furnished Harrison any tools or materials; that Battle had control over the premises (the van); or that Battle had the right to discharge Harrison. The record amply supports the district court's determination that no employment relationship existed between Battle and Harrison.

II.

Agency relationship. Piper also asserts that Battle is vicariously liable for Harrison's negligence under agency principles. An agency relationship is

"the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other to so act."

Plate v. St. Mary's Help of Christians Church, 520 N.W.2d 17, 20 (Minn. App. 1994) (quoting Restatement (Second) of Agency ' 1 (1957)), review denied (Minn. Oct. 14, 1994). An agency relationship may exist even if the parties did not call it agency or intend to create an agency relationship. A. Gay Jenson Farms Co. v. Cargill, Inc., 309 N.W.2d 285, 290 (Minn. 1981).

Resolving all doubts and inferences against Battle, the record does not show that Battle exercised control over Harrison or consented to have Harrison act on her behalf or that Harrison consented to be controlled by Battle or to act on her behalf. Most significant to the district court's decision was the fact that it was Tessa who asked to ride with her friend in Harrison's van.

The district court found that Piper failed to show a manifestation of consent on the part of either Harrison or Battle to have Harrison act on Battle's behalf or that Battle had the right to control Harrison. See Plate, 520 N.W.2d at 20 (stating that party alleging agency relationship bears burden of proving necessary elements). Because Piper has not shown the elements necessary to establish an agency relationship, he may not rely on agency principles to support a theory of vicarious liability.

III.

Nondelegable duty. Nondelegable duty issues generally arise in a master/servant or an employer/independent contractor context. See generally Restatement (Second) of Torts '' 416-429, intro. n. topic 2 (1965) (noting that an employer may not escape liability by delegating duties to an independent contractor and that the nondelegable duty rule imposes liability analogous to liability imposed in the master/servant context). Because we agree with the district court's determination that no employment or agency relationship existed between Battle and Harrison at the time of the accident, the theory of nondelegable duty is inapplicable as a matter of law.

IV.

Negligent selection. Piper argues that Battle was negligent in selecting Harrison to drive Tessa to church and that Battle should have known that Harrison had a criminal record and no driver's license. A person may be liable for the negligence of a third party if (1) the person has a

"special relationship" to either (a) the [third party] whose conduct needs to be controlled or (b) to the foreseeable victim of that conduct, and (2) the harm is foreseeable.

Wood v. Astleford, 412 N.W.2d 753, 755 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987); see also Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168 (Minn. 1989) (discussing situations in which a person has a duty to protect another person from a third person's criminal acts); Restatement (Second) of Torts ' 315 (1965), cited in Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984). The parties appear to concede the existence of a special relationship between Battle and Tessa. Whether Battle is liable for negligent selection of Harrison as a driver therefore depends on whether the accident was foreseeable.

We agree with the district court that there is insufficient evidence to show that Battle knew or should have known that Harrison posed a risk to Tessa. The record shows only Piper's bare assertion that Battle knew or should have known of Harrison's criminal record and the fact that she had no driver's license. [1] Nothing in the record reasonably allows an inference that Battle considered Harrison anything more than "a normal person."

Affirmed.


Footnotes

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.

[1]The relevance of Harrison's criminal record is questionable. It does not appear that the district court considered this evidence in granting summary judgment.