This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-2197

L. J.,

Appellant,

vs.

Shu Dian Peng, et al.,

Respondents.

Filed May 6, 1997

Affirmed

Willis, Judge

Hennepin County District Court

File No. PI9511465

Susan M. Elfstrom, Foshay Tower, Suite 2075, 821 Marquette Avenue South, Minneapolis, MN 55402 (for Appellant)

Charles E. Lundberg, Christopher R. Morris, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondents)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

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

WILLIS, Judge

Appellant L.J. challenges summary judgment in favor of respondents Wayne Dahl and Fridley Chiropractic Clinic (the clinic) on her claims arising from nonconsensual sexual contact with her by a clinic employee. L.J. contends fact questions exist relating to her claim that respondents are vicariously liable for the employee's conduct and whether respondents were negligent in hiring, retaining, and supervising him. In addition, L.J. contends she was entitled to additional discovery. We affirm.

FACTS

In 1989, the clinic hired Shu Dian Peng as an acupuncturist. In August 1993, L.J. had four acupuncture therapy sessions with Peng to help her stop smoking. During L.J.'s first session, Peng touched her breasts with his palm and the touching became more overt over her next two visits. After her third visit, L.J. reported Peng's conduct to the police, but she told no one at the clinic. On her fourth visit, L.J. recorded Peng's inappropriate touching with a concealed video camera. Peng was charged with eight counts of fourth-degree criminal sexual conduct and pleaded guilty to one count.

In March 1995, L.J. filed a civil action against Peng based on theories of battery and negligence and against respondents Dahl and the clinic based on theories of vicarious liability and negligence. The district court granted respondents' motion for summary judgment on June 26, 1996. On September 10, 1996, L.J. filed motions to stay summary judgment and to extend discovery. On September 30, 1996, the district court denied L.J.'s posthearing motions. In October 1996, the district court concluded that L.J. was entitled to judgment against Peng in the amount of $140,000, plus costs and disbursements. L.J. appeals from the summary judgment in favor of respondents Dahl and the clinic and the denial of her posthearing motions.

D E C I S I O N

On appeal from summary judgment, this court reviews whether any genuine issues of material fact exist and whether the district court correctly applied the law. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 847 (Minn. 1995). A moving party is entitled to summary judgment when the record contains no facts giving rise to a genuine trial issue "as to the existence of an essential element of the nonmoving party's case." Id. "Speculation, general assertions, and promises to produce evidence at trial are not sufficient to create a genuine issue of material fact for trial." Id. at 848.

1. Respondeat Superior.

L.J. contends respondents are vicariously liable for the injuries she suffered as a result of Peng's sexual misconduct. In Minnesota, an employer is liable, based on the principle of respondeat superior, for an assault by an employee

when the source of the attack is related to the duties of the employee and the assault occurs within work-related limits of time and place.

Lange v. National Biscuit Co. 297 Minn. 399, 404, 211 N.W.2d 783, 786 (1973).

L.J. relies on Louisiana cases in which employers were held to be vicariously liable for the sexual misconduct of their employees. See, e.g., Samuels v. Southern Baptist Hosp., 594 So.2d 571 (La. App. 1992); Turner v. State, 494 So.2d 1292 (La. App. 1986). Although the tests are similar, application of the doctrine of vicarious liability is less rigorous in Louisiana than in Minnesota. Compare Samuels, 594 So.2d at 573 (stating that "[i]t is not necessary that all factors be met in order to find liability") with Lange, 297 Minn. at 404, 211 N.W.2d at 786 (stating that the attack must be related to the employee's duties and occur within work-related limits of time and place). And Louisiana case law is, in any event, not precedent here.

L.J. incorrectly asserts that an employee's misconduct need not be foreseeable for an employer to be vicariously liable for that conduct. In Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306 (Minn. 1982), the supreme court concluded that the issue of whether an employer is responsible for an employee's sexual misconduct during therapy sessions depends on the fact question of whether the employee's acts "were foreseeable, related to and connected with acts otherwise within the scope of employment." Id. at 311; see also P.L. v. Aubert, 545 N.W.2d 666, 668 (Minn. 1996) (asserting that foreseeability of the risk of injury determined the outcome in Marston).

Here, there is no evidence that sexual contact between an acupuncturist and a patient is a foreseeable risk of the acupuncturist's employment. Moreover, Peng's sexual contact with L.J. was unrelated to the acupuncture treatment that Peng was employed to perform. The district court correctly concluded that respondents are not vicariously liable for Peng's conduct because there is insufficient evidence to conclude that Peng acted within the scope of his employment as an acupuncturist when he had sexual contact with L.J.

2. Negligent Hiring.

An employer's liability for an employee's intentional tort based on negligent hiring

is predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.

Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 911 (Minn. 1983). Liability depends on whether the employer exercised reasonable care as determined by the totality of the circumstances surrounding the hiring. Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993).

L.J. claims respondents breached their duty of reasonable care in hiring Peng because they did not determine if he had a criminal record. In Ponticas, however, the court "reject[ed] the contention that, as a matter of law, there exists a duty upon an employer to make an inquiry as to a prospective employee's criminal record even where it is known that the employee is to regularly deal with members of the public." 331 N.W.2d at 913. An employer need not check an applicant's criminal history if "the employer has made adequate inquiry or otherwise has a reasonably sufficient basis to conclude the employee is reliable and fit for the job." Id.

L.J. also claims that respondents were negligent in hiring Peng because they did not check any of his references in China. The record shows that a counselor employed by Anoka County contacted Dahl about hiring Peng and told him that Peng had expertise in acupuncture and had been employed at the Abeler Chiropractic Clinic. Dahl telephoned Dr. Abeler, who "spoke very highly" of Peng. Dahl interviewed Peng and discussed his experience in acupuncture, his education, his work in China, and the differences between treatment in China and the United States. Peng told Dahl that he was a fourth-generation acupuncturist with the equivalent of a doctorate of acupuncture in Chinese herbal medicine. Dahl saw Peng's diplomas and books he had written on Chinese remedies and acupuncture. Dahl verified with Peng that he would use acupuncture methods that were accepted in the United States. Dahl's investigation was sufficient for him to conclude that Peng was fit to work as an acupuncturist and there is no evidence that further investigation would have shown that Peng had dangerous propensities.

3. Negligent Retention.

L.J. claims the district court erred in granting summary judgment on her claim that respondents were negligent in retaining Peng. Negligent retention

"occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment."

Yunker, 496 N.W.2d at 423 (citation omitted).

L.J. contends there is a question as to whether respondents were negligent in retaining Peng because (1) the clinic discovered that Peng had been selling Chinese herbal medicines from his home after the clinic told him to stop doing so, and (2) on August 23, 1993, Dahl saw in Peng's office Chinese magazines featuring scantily clad women and told Peng to dispose of them. There is insufficient evidence for a jury to conclude that it was foreseeable that Peng would assault a patient. The record shows that no patient complained of inappropriate touching by Peng until August 30, 1993. Dahl fired Peng two days later after consulting with counsel.

4. Negligent Supervision.

L.J. claims that the district court erred in granting summary judgment on her claim of negligent supervision because respondents did not establish any safety measures to protect patients from sexual misconduct by Peng.

[N]egligent supervision is the failure of the employer "to exercise ordinary care in supervising the employment relationship, so as to prevent the foreseeable misconduct of an employee from causing harm to other employees or third persons." Negligent supervision derives from the doctrine of respondeat superior so the claimant must prove that the employee's actions occurred within the scope of employment in order to succeed on this claim.

M.L. v. Magnuson, 531 N.W.2d 849, 858 (Minn. App. 1995) (citation omitted), review denied (Minn. July 20, 1995). Because we have concluded that there is no evidence that sexual conduct between an acupuncturist and a patient is a foreseeable risk of the acupuncturist's employment, and thus that respondents are not liable under the doctrine of respondeat superior, we find that respondents also were properly granted summary judgment on L.J.'s negligent supervision claim.

5. Discovery.

L.J. challenges the district court's denial of her motion to stay summary judgment and allow additional discovery, arguing that summary judgment was premature.

Should it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present, by affidavit, facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Minn. R. Civ. P. 56.06. The district court has great discretion to determine the procedural calendar of a case. Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982).

In deciding whether to grant a continuance, the district court should focus on (1) whether the party seeking additional time has a good faith belief that material facts will be discovered and (2) whether the party diligently sought discovery prior to bringing the motion. Bixler v. J.C. Penney Co., 376 N.W.2d 209, 216-17 (Minn. 1985). Sufficient time for discovery is particularly important when the opposing party has exclusive control of the relevant facts. Rice, 320 N.W.2d at 412.

L.J.'s claim that "the information potentially possessed by [the clinic] employees is absolutely essential to the determination of" her negligence claims. Because L.J. does not specify what that evidence might be, it appears that her claim is based on speculation rather than a good faith belief that material facts would be discovered. Moreover, L.J.'s delay in seeking an extension demonstrates a lack of diligence in seeking discovery, and she fails to explain why she did not submit a motion to extend discovery prior to or at the hearing on respondents' motion for summary judgment, rather than waiting until two and one-half months after the district court granted summary judgment. See Bolton v. Department of Human Servs., 527 N.W.2d 149, 153 (Minn. App. 1995) (affirming district court's denial of appellant's motion to extend time for discovery, stating that appellant's delay in seeking additional discovery to three weeks after hearing on summary judgment motion weighs heavily against appellant's diligence in obtaining discovery), rev'd on other grounds, 540 N.W.2d 523 (Minn. 1995).

The district court did not abuse its discretion in denying L.J.'s motion to stay summary judgment and allow additional discovery.

Affirmed.