This opinion will be unpublished and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
C4-96-713

Shawn Eggleston,
Appellant,

vs.

Cecil Newman Corporation,
a/k/a Cecil Newman Plaza Limited Partnership,
Respondent,

Beverly Benner,
Defendant.


Filed August 13, 1996
Affirmed
Schumacher, Judge

Hennepin County District Court
File No. 9418753


Kenneth W. Pearson, Paul E. Overson, Bale Anderson Polstein 
Pearson & Hill, Ltd., 607 Marquette Avenue, Suite 400, 
Minneapolis, MN 55402 (for Appellant)

Daniel A. Haws, Mark D. Covin, Murnane, Conlin, White & 
Brandt, P.A., 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, 
MN 55101 (for Respondent)

Carol Lynn O'Gara, Sieben, Grose, Von Holtum, McCoy & Carey, 
Ltd., 900 Midwest Plaza East, Eighth and Marquette, Minneapolis, 
MN 55402 (for Amicus Curiae Minnesota Trial Lawyers 
Association)


	Considered and decided by Schumacher, Presiding Judge, 
Norton, Judge, and Harten, Judge.



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

SCHUMACHER, Judge
	Shawn Eggleston appeals from summary judgment, arguing 
the district court erred in concluding that respondent Cecil 
Newman Corporation, a/k/a Cecil Newman Plaza Limited 
Partnership, (Newman Corporation) did not owe Eggleston a duty 
to protect him from the criminal acts of a third person and was not 
vicariously liable for the negligence of its employee, Beverly 
Benner.  We affirm.

FACTS

	Eggleston was shot in the leg by Jumoke Owens.  The 
shooting was in response to a prior altercation between Eggleston 
and Owens's girlfriend Judonna Parker.  Parker had previously 
threatened Eggleston that Owens was going to shoot him.
	The shooting occurred in a hallway in building 709 of the 
Cecil Newman Plaza Apartments (the Plaza) in north Minneapolis. 
 Building 709 is not a security building, but has controlled access 
through a buzzer/intercom lock system in each apartment.
	About 10:00 p.m. on July 25, 1992, Owens came to the 
door of building 709.  Benner, who was visiting her daughter 
Parker, opened the door to let Owens inside.  Owens went to 
Eggleston's mother's door and demanded to see Eggleston.  As 
Eggleston started to leave the building, two of Owens's friends 
grabbed Eggleston and Owens shot him in the leg three times.  
Eggleston suffered severe leg injuries and remains partially 
disabled.
	Benner does not live in the Plaza but worked there for 
Newman Corporation.  Benner received a salary and free rent in a 
different property owned by Newman Corporation.  Benner's 
duties included answering the phone, taking rent, making deposits, 
showing apartments, passing out keys, signing contracts, and 
filling out maintenance reports.  Benner also said she occasionally 
walked around the Plaza to make sure the apartments were safe 
and that there was no trouble.  Newman Corporation denies that 
Benner had any security or safety duties at the Plaza.
	Eggleston brought a negligence action against Newman 
Corporation and Benner for his injuries.  Newman Corporation 
separately moved for summary judgment on the issue of its 
liability, arguing there was no special relationship between 
Newman Corporation and Eggleston that would create a duty to 
protect Eggleston.  Newman Corporation also argued it was not 
vicariously liable because Benner was not acting within the course 
and scope of her employment when she opened the door for 
Owens.  The district court granted Newman Corporation's motion, 
and Eggleston appeals.

D E C I S I O N

	On appeal from summary judgment this court asks whether 
there are any genuine issues of material fact and whether the 
district court erred in its application of the law.  State by Cooper v. 
French, 460 N.W.2d 2, 4 (Minn. 1990).  This court views the facts 
in the light most favorable to the party against whom summary 
judgment was granted.  Offerdahl v. University of Minn. Hosps. 
& Clinics, 426 N.W.2d 425, 427 (Minn. 1988).
	1.	Eggleston argues that Newman Corporation had a 
duty to protect him from the criminal acts of a third party.  We 
disagree.
	To establish a claim for negligence, Eggleston must show a 
duty, a breach of that duty, causation, and injury.  Spitzak v. 
Hylands, Ltd., 500 N.W.2d 154, 156 (Minn. App. 1993), review 
denied (Minn. July 15, 1993).  Generally, under common law, 
there is no duty either to warn or protect others who may be 
endangered by a third party's conduct or to control the conduct of a 
third person to prevent him or her from causing physical harm to 
others.  Id.; Restatement (Second) of Torts  315 (1965).
	An exception to this rule may find a duty depending on (1) 
whether there is a special relationship between the parties, and (2) 
the foreseeability of the risk involved.  Erickson v. Curtis Inv. Co., 
447 N.W.2d 165, 168-69 (Minn. 1989).  A special relationship 
arises where the injured party "has in some way entrusted his or 
her safety to [the other party] and [the other party] has accepted 
that entrustment."  Id. at 168.
This special relationship also assumes that the harm 
represented by [the third person] is something that [the 
other party] is in a position to protect against and should be 
expected to protect against.
Id.  Whether a legal duty exists is usually an issue for the court to 
determine as a matter of law.  Larson v. Larson, 373 N.W.2d 287, 
289 (Minn. 1985).
	In Erickson, the court found a special relationship between 
the owner of a parking ramp and its users based on the fact that the 
parking ramp in question had unique features that provided a focus 
and opportunity for crime.  447 N.W.2d at 168-69.  The court held 
that the risk must be greater than "that presented out on the street 
and in the neighborhood generally" before a duty will be imposed. 
 Id. at 169.
	Eggleston has not shown a duty similar to Erickson.  The 
record reveals no history of crime in the Plaza or the surrounding 
neighborhood.  Nothing indicates that the crime in question was in 
or out of keeping with the streets or surrounding neighborhood.  
The record also does not indicate that the Plaza is "uniquely" 
designed or situated to create an opportunity for criminal activity in 
the area.
	Public policy does not support finding a special relationship 
because: (1) the prevention of crime is a governmental function 
that should not be shifted to the private sector; (2) imposing a duty 
to protect against the "unpredictable conduct of criminals does not 
lend itself easily to an ascertainable standard of care"; and (3) the 
cost necessary to prevent this type of crime is prohibitive for both 
Newman Corporation and its tenants.  See Erickson, 447 N.W.2d  
at 168-69 (analyzing public policy factors).
	Moreover, this case is not similar to H.B. by Clarke v. 
Whittemore, 533 N.W.2d 887 (Minn. App. 1995), review granted 
(Minn. Sept. 20, 1995).  In Whittemore, a special relationship was 
found between the owner of a trailer park and children molested by 
a park resident because the park manager knew of the perpetrator's 
history, had notice of the children's complaints, and the owner held 
the manager out as its "local authority" for security matters.  Id. at 
891.  Here, there is no evidence that Newman Corporation held 
Benner out as its "local authority" for security matters. 
	We find as a matter of law that there was no special 
relationship between Newman Corporation and Eggleston to create 
a duty to protect Eggleston from the criminal acts of a third party.  
Because we conclude there was no special relationship, we do not 
reach the issue of foreseeability.  See Donaldson v. Young 
Women's Christian Ass'n, 539 N.W.2d 789,  793 (Minn. 1995).
	2.	Eggleston argues that Newman Corporation is 
vicariously liable for the negligence of Benner.  We disagree.


	For an employer to be held vicariously liable for an 
employee's negligent conduct, the employee's conduct must have 
been in the course and scope of his or her employment.  Edgewater 
Motels v. Gatzke, 277 N.W.2d 11, 15 (Minn. 1979).  To show that 
an employee's negligent act occurred within his or her scope of 
employment, it must be shown that the conduct was, to some 
degree, in furtherance of the interests of the employer.  Id.  Other 
factors to be considered are
whether the conduct is of the kind that the employee is 
authorized to perform and whether the act occurs 
substantially within authorized time and space restrictions.
Id.  Each case must be analyzed on its own individual facts.  Id.  
The furtherance of the employer's interest test "requires both the 
existence of the duty [to act for the employer] and its exercise."  
Marston v. Minneapolis Clinic of Psychiatry & Neurology, 329 
N.W.2d 306, 310 (Minn. 1982).
	Benner admitted that when she was visiting her daughter at 
10 p.m., "it was just personal," and not for any employment-related 
purpose.  Because Benner was not on duty at the time she opened 
the door for the assailant, Newman Corporation cannot be held 
liable.

	Affirmed.