This opinion will be unpublished and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


Pamela Belcourt, as Trustee for the heirs and next-of-kin
of Cordell Blake Belcourt, Jr.,


Robert Anderson, III, et al.,

Filed September 17, 1996
Willis, Judge

Hennepin County District Court
File No. 948644

Thomas G. Wallrich, Steven H. Silton, Fafinski & Wallrich, P.A., 1450 Rand Tower, 527 Marquette Avenue, Minneapolis, MN 55402 (for Appellants)

Daniel W. Fram, Peterson, Fram, & Bergman, P.A., 50 East Fifth Street, #300, St. Paul, MN 55101 (for Respondent Dawn Lane)

Considered and decided by Willis, Presiding Judge, Peterson, Judge, and Thoreen, Judge. 1


WILLIS , Judge
Pamela Belcourt, as trustee for the heirs and next-of-kin of her son, Cordell Belcourt, Jr., appeals from the judgment in this negligence action, arguing that the district court improperly determined that the mother of the tortfeasor had no duty to control the tortfeasor's actions. We affirm.

Respondent Dawn Lane is the mother of respondent Robert Anderson, III. Anderson accidentally killed his friend, Cordell Belcourt, Jr., when Anderson pointed what he thought was an unloaded gun at Belcourt, Jr., and pulled the trigger. Anderson was convicted of second-degree manslaughter for Belcourt, Jr.'s, death. See Minn. Stat. § 609.205(1) (1988) (causing death of another by culpable negligence).
Appellant Pamela Belcourt brought a negligence action against Anderson, his grandfather, his father, his mother (respondent Lane), and the unknown dealer who sold the gun to the grandfather. Lane moved for summary judgment, arguing she had no duty to control Anderson's actions. Lane had been granted physical custody of Anderson when Lane and Anderson's father divorced, but she moved to California more than a year before the shooting and allowed Anderson to remain in Minnesota to live with his paternal grandparents. Lane argued she therefore had no ability or opportunity to control Anderson's actions. Lane also claimed that the shooting was unforeseeable because Anderson was nearly 18 years old when it occurred, he had passed a gun safety class, he had experience using firearms, he never had misused a firearm or shown a propensity to do so, and he was mentally and emotionally stable.
Belcourt contended that as Anderson's custodial parent, Lane had the ability and the opportunity to control his actions. Belcourt also submitted evidence showing Anderson (1) had dropped out of high school; (2) had lived essentially on his own, unsupervised by his grandparents or any other adult, since Lane had moved to California; (3) had easy access to many guns at his grandparents' home, including the weapon used to shoot Belcourt, Jr.; (4) had fired guns at inanimate objects in the basement of the house where he lived at the time of the shooting; (5) had stolen his sister's car and driven it without a license; (6) had killed his sister's cat when he was 15 years old; (7) had once carelessly pointed an unloaded gun at his roommate; (8) had an affair with a woman one year older than himself; (9) had a below-average maturity level; and (10) had a higher-than-normal score on a psychopathic deviant scale. Belcourt argued these facts showed Anderson was mentally and emotionally unstable and had violent and dangerous propensities, and, therefore, the shooting was foreseeable. Belcourt also asked the district court for a continuance to allow her to complete discovery before determination of Lane's summary judgment motion.
The district court refused to grant a continuance and granted summary judgment for Lane. The court held that Lane had no duty to control Anderson's behavior because the harm was not foreseeable, and Lane had neither the ability nor the opportunity to control his actions. Belcourt pursued her claims against the other defendants to judgment, then brought this appeal.

On appeal from summary judgment, a reviewing court must examine the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics , 426 N.W.2d 425, 427 (Minn. 1988). We must view the evidence in the light most favorable to the nonmoving party. Id. But this court is not bound by a district court's decision on a question of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n , 358 N.W.2d 639, 642 (Minn. 1984).
1. Duty to control.
A person generally has no duty to control the conduct of a third party to prevent harm to another. Lundgren v. Fultz , 354 N.W.2d 25, 27 (Minn. 1984).
Whether a duty exists depends on two factors: (1) whether a "special relationship" existed between the defendant and the third person and (2) the foreseeability of the harm.

Id. Lane admits she has a special relationship with Anderson because she is his mother. See Silberstein v. Cordie , 474 N.W.2d 850, 855 (Minn. App. 1991) (determining that one exception to general rule of no duty to control third party's acts is based on parent/child relationship), review denied in part and granted in part on other grounds , 477 N.W.2d 713, 714 (Minn. Nov. 29, 1991).
Belcourt claims that the district court erred in determining the harm here was unforeseeable and that a fact dispute precluded summary judgment on this issue. We disagree. Whether a duty exists to control another's behavior is usually a question of law. Id. Although foreseeability may be a jury issue in a close case, "[g]enerally, foreseeability is a question of law." Id.
Foreseeability in a legal duty analysis relates to the type of danger the alleged misconduct created, rather than the manner in which the harm occurred. McClintock v. Roger's Cablesystems , 478 N.W.2d 781, 784 (Minn. App. 1991). A parent does not have to have actual knowledge of facts making the harm foreseeable to have a duty to control her child's actions. Restatement (Second) of Torts § 316 (1965). 2

Even if Lane knew or should have known of all the facts produced by Belcourt, the harm here was not foreseeable as a matter of law. Belcourt produced no evidence that Anderson ever had harmed or threatened to harm a human being. Belcourt's statement that she knew Anderson had killed his sister's cat nearly two years before the shooting was the only evidence that Anderson had harmed a living thing. Statements from Anderson's roommate that Anderson once carelessly pointed an unloaded gun at him and that Anderson "could have been a little more careful with the way he held the guns" were insufficient to show Anderson had a propensity to misuse firearms in a manner that made injury to people foreseeable. In short, summary judgment was properly granted here because the facts produced by Belcourt were insufficient to establish that Anderson was mentally or emotionally unstable or had violent or dangerous propensities such that injury to innocent people was foreseeable. Cf. Silberstein , 474 N.W.2d at 855 (holding that fact issue existed regarding foreseeability of shooting when mentally-ill son had stopped taking medication and had become delusional, son had threatened victim in past when having similar delusions, and parents left gun in area accessible to son when they left town); see also Robertson v. Wentz , 232 Cal. Rptr. 634, 639 (Cal. Ct. App. 1986) (holding that parent who knew of son's drug use, school disciplinary problems, and distress over impending majority had no duty to prevent him from shooting victim because it is "only the manifestation of specific dangerous tendencies which triggers" parental duty to control child's actions).
Nor did Lane have the ability or opportunity to control Anderson. A parent's duty to control a child to prevent harm to a third party

is narrow; at the very most, the duty arises when the parent has both the opportunity and the ability to control the child.

Silberstein , 474 N.W.2d at 855-56; see also Lundgren , 354 N.W.2d at 27 (noting that implicit in duty to control is ability to control). Because Lane lived in another state and because Anderson was nearly at the age of majority, Lane had neither the opportunity nor the ability to control his behavior. Moreover, Lane had no ability to control Anderson's access to the firearms in his grandparents' home. Under these circumstances, Lane had no duty to control Anderson's behavior.
2. Denial of continuance.
Belcourt argues summary judgment was granted prematurely because she did not have the opportunity to depose Lane or to complete discovery. The district court has great discretion in determining the timing of proceedings. Rice v. Perl , 320 N.W.2d 407, 412 (Minn. 1982). A district court may continue a summary judgment motion when
it appear[s] from the affidavits of a party opposing the motion that the party cannot for reasons stated present, by affidavit, facts essential to justify the party's opposition.

Minn. R. Civ. P. 56.06. A party requesting a continuance on the ground of insufficient time for discovery, however, must have been diligent in seeking discovery before the rule 56.06 motion and must demonstrate a good faith belief that material facts will be uncovered and that she is not engaging in a fishing expedition. Rice , 320 N.W.2d at 412.
This case began in November 1993; the September 9, 1994, scheduling order gave the parties until February 1, 1995, to complete discovery; and Lane's summary judgment motion was heard only one week before the discovery deadline. Thus, Belcourt had sufficient time to depose Lane and other witnesses before the summary judgment motion and would in any event have had only one more week to complete discovery. Nothing in the record shows Belcourt had scheduled any depositions during the final week of discovery. Finally, Belcourt has identified no specific facts that she expected to uncover through additional discovery. Accordingly, the district court did not abuse its discretion in refusing to grant Belcourt a continuance to complete discovery.

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

2 Restatement (Second) of Torts § 316 provides:

A parent is under a duty to exercise reasonable care so as to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(a) knows or has reason to know that he has the ability to control his child, and

(b) knows or should know of the necessity and opportunity for exercising such control.