This opinion will be unpublished and

may not be cited except as provided by

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




Ramona Thorne, a minor,

by Janice Watson, her mother and natural guardian,



Hennepin County, et al.,


Alonzo Williams, et al.,


Filed November 18, 1997


Amundson, Judge

Hennepin County District Court

File No. 96-1666

Mark D. Streed, Meshbesher, Singer & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)

Hubert H. Humphrey III, Attorney General, Portia Hampton-Flowers and Margie E. Hendriksen, Assistant Attorneys General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101 (for respondent Hennepin County, Commissioner of Public Welfare)

Richard H. Krochock and Eric J. Magnuson, Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondents Alonzo and Consuella Williams)

Considered and decided by Huspeni, Presiding Judge, Amundson, Judge, and Thoreen, Judge.[*]



Appellant Ramona Thorne, a minor, by Janice Watson, her mother and natural guardian, challenges summary judgment in favor of respondents Alonzo and Consuella Williams on Watson's negligence claim. Thorne also challenges summary judgment in favor of respondents Hennepin County and the State of Minnesota on statutory immunities provided by Minnesota statute. We affirm.


In January of 1989, Hennepin County Child Protection Services took custody of appellant Ramona Thorne when she was 11 months old. Some of the reasons cited for the custody transfer included an investigative finding regarding Thorne's natural mother, Janice Watson, included: "children are not fed properly"; "other allows all kinds of people to live in the house"; "[g]nats are flying around in the house"; "[m]other sometimes leaves children alone while she is upstairs"; and that physical injury has occurred as a result of discipline of children. After being in several shelter homes and foster homes between January 1989 through July 11, 1989, Thorne was placed in the family foster home of Alonzo and Consuella Williams. The Williamses were licensed through Hennepin County to care for two foster children aged 0-4 years. Prior to caring for Thorne, the Williamses served as foster parents for several other children, all of whom were at high risk due to neglect and exposure to crack cocaine.

At the time Thorne was placed in the Williamses' home, the Williamses were provided with a nebulizer to assist Thorne's breathing, and they were informed that Thorne was born with cocaine in her system. When Thorne arrived at the Williamses' home, she suffered from respiratory problems, eczema, earaches, shortness of breath, wheezing, and asthma. Additionally, Thorne sometimes complained of pain in her legs.

On July 19, 1989, the Williamses took Thorne to see their family physician. The examining doctor informed them that Thorne suffered from asthma and a hip click. On July 31, 1989, Mr. Williams took Thorne to an orthopedic specialist for the click in her hip. In the evening of the same day, Mrs. Williams gave Thorne a bath along with her two daughters. According to Mrs. Williams, and both Williams' girls, nothing unusual happened during the bath. After bathing Thorne, Mrs. Williams took her out of the bathtub, placed a towel around her, and took her to the living room to dry her off and put on her pajamas. Thorne went limp and appeared to have trouble breathing. Mrs. Williams called Mr. Williams and they performed CPR on Thorne and attempted to use the nebulizer to improve Thorne's condition. The Williamses called 911 and Thorne was taken to Hennepin County Medical Center (HCMC) by ambulance. Watson was notified of Thorne's hospitalization on August 1, 1989.

Although Thorne was diagnosed as suffering from a brain hemorrhage, doctors at HCMC could not make a definitive opinion regarding its cause. The doctors could only hypothesize alternative theories for the cause of the bleeding, including possibly "an infarction," "cerebral edema," "acute apnea," "trauma," "aneurysm," "shaken baby syndrome," "meningitis," or "seizures." One doctor stated that the hemorrhage was "unlikely to have been caused by trauma." Another doctor said that they did not know the source of the hemorrhage, "nor do they know if they ever will be able" to identify the cause of the hemorrhage.

In August 1989, Janice Darcy, a social worker, investigated Thorne's hospitalization and resulting condition. Darcy's investigation resulted in a finding of no maltreatment. The records regarding the investigation were destroyed in accordance with data privacy laws.

On July 24, 1995, Thorne, through Watson, served a summons and complaint on the Williamses, Hennepin County, and the State of Minnesota, initiating a negligence law suit stating that Thorne's injury was caused by the "negligent acts and/or omissions of defendants Alonzo and Consuella Williams * * * while defendants Alonzo and Consuella Williams were working within the course and scope of their employment and/or agency with defendant Hennepin County." On December 20, 1996, the district court granted the summary judgment motion in favor of the Williamses, Hennepin County, and the State of Minnesota. This appeal followed.


On appeal from summary judgment, this court determines whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Offerdahl v. University of Minnesota Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). In doing so, this court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I. Negligence Claim Against Alonzo And Consuella Williams

Negligence exists where there is (1) a duty, (2) a breach of that duty, (3) the plaintiff suffered injury, and (4) the breach was the proximate cause of the plaintiff's injury. Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996). When the nonmoving party bears the ultimate burden of proof on an issue at trial, that party must do more than simply raise doubts as to the material facts when opposing a motion for summary judgment:

[T]he plain language of Rule 56 mandates the entry of summary judgment, "after adequate time for discovery and upon motion, against the party who fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."

Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53 (1986).

Watson, therefore, bears the burden of proving causation by introducing evidence which provides a reasonable basis for the conclusion that it is more likely than not that the Williamses' conduct caused the resulting damages. See Nguyen v. Control Data Corp. 401 N.W.2d 101, 105 (Minn. App. 1987).

The burden of proof being upon the plaintiff, it is not enough that the evidence be consistent with the theory upon which the plaintiff bases her claim. It must go further and must support it. It is never enough that it suggests a possibility. The evidence in proof must justify sound and honest inferences.

Lafavor v. American Nat'l Ins. Co., 279 Minn. 5, 12, 155 N.W.2d 286, 291 (1967). This court will not allow juries to speculate in cases involving plaintiffs who fail to establish that it is more likely that their injuries were caused by the defendants' conduct than from other sources.

Where the entire evidence sustains, with equal justification, two or more inconsistent inferences so that one inference does not reasonably preponderate over the others, the complainant has not sustained the burden of proof on the proposition which alone would entitle him to recover.

E.H. Renner & Sons, Inc. v. Primus, 295 Minn. 240, 243, 203 N.W.2d 832, 835 (1973).

In the present case, Watson relies on hearsay evidence regarding Alonzo and Consuella Williams and their children to support speculative claims. The inferences drawn from such evidence are tenuous and conflicting. Most of the evidence is either rejected or contradicted by Thorne's own expert witnesses.

Watson claims that Thorne was a healthy, cocaine-free, baby prior to her placement in the Williamses' home. This claim is not supported by the record. Watson even admitted to using crack cocaine during her pregnancy, and Thorne tested positive for cocaine toxicity at birth. The record reflects that the future effects of Thorne's cocaine toxicity were unknown at the time of her birth.

Watson engages in speculation about numerous scenarios for Thorne's injuries. Watson is not able to narrow the cause of Thorne's injury, as seen in Watson's statement:

Dr. Frost and Dr. Rolewicz are of the opinion that Ramona's * * * brain injury was caused by some kind of trauma. * * * [N]either Dr. Frost nor Dr. Rolewicz can specify the specific negligent act or omission by the Williams family that caused the trauma.

These admissions illustrate that Watson cannot identify who or what caused Thorne's brain hemorrhage. Although Thorne's condition is certainly tragic, without more detailed information, the record does not provide a basis for a claim of liability against Alonzo or Consuella Williams.

II. Statutory Immunity

Summary judgment is appropriate when a governmental entity establishes that its actions are immune from liability. See Ostendorf v. Kenyon, 347 N.W.2d 834, 836 (Minn. App. 1984). Whether governmental action is protected by immunity is a question of law and therefore this court need not defer to the district court's decision on this issue. Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996).

State law immunizes governmental entities from tort claims "caused by the performance or failure to perform a discretionary duty, whether or not the discretion is abused." Minn. Stat. § 3.736, subd. 3(b) (1996). Statutory discretionary immunity does not, however, protect all decisions made by government agents. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 722 (Minn. 1988).

The issue is not whether the government action involved the exercise of discretion in a general sense, because almost every government function does involve some exercise of discretion, but rather whether the challenged activity "involved a balancing of policy objectives."

Zank, 552 N.W.2d at 721 (citation omitted).

The courts distinguish between "operational" and "planning" decisions. Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994). Planning decisions involve questions of public policy and receive protection as discretionary decisions, while operational decisions relate to the day-to-day operation of government and do not receive protection. Id.

Discretionary immunity protects the government only when it can produce evidence its conduct was of a policy-making nature involving social, political, or economic considerations, rather than merely professional or scientific judgments.


The distinction between "making" and "implementing" a decision may be difficult. Pletan v. Gaines, 494 N.W.2d 38, 44 (Minn. 1992). The carrying out of a policy will naturally have consequences, and discretionary statutory immunity

would afford little comfort if it did not extend to some of the consequences of the policy itself. Whether certain consequences are immune depends * * * on whether the consequential conduct * * * involves the balancing of public policy considerations in the formation of policy.


Hennepin County's decision to place Thorne in the Williamses' family foster home was a governmental decision which is protected by discretionary immunity. In a similar case, county social services staff had to decide whether to remove a child from the home or whether to leave the child in his mother's care under county supervision. See Olson v. Ramsey County, 509 N.W.2d 368 (Minn. 1993). The county chose to leave the child in his mother's care and the county was sued when the mother's abuse caused the child's death. The supreme court held that the county's placement decision was protected by discretionary immunity, stating:

In making this placement decision, the County's social worker was required to weigh the competing governmental policies of protecting the child from danger within the family and keeping the family together, a decision involving profound social consideration and, consequently, a decision at the policymaking level protected by discretionary function immunity.

Id. at 371.

In the present case, the county placement staff had to make a difficult professional judgment concerning the appropriate level of supervision, weighing Thorne's needs, her physical and mental limitations, the Williamses' strengths and limitations, resource limitations, and placement limitations. If governmental agencies have to fear liability for their placement decisions, fewer children will be placed at all. See Cairl v. State, 323 N.W.2d 20, 23 n. 3 (Minn. 1982) (holding that discretionary immunity applied to decision to release patient, who later set fire to his mother's apartment which was fatal to other tenants; comments that threat of liability would frustrate state's policy regarding treatment of the mentally ill).

Placement authorities must consider the public interest in providing the best possible care for the child, the cost of the care, and the availability of services. These considerations fall within the "planning level" decisions due to the evaluation of economic, political, and social factors involved. Foster care placement, therefore, is a discretionary function which is immune from tort liability pursuant to Minn. Stat. § 3.736, subd. 3(b).

Since statutory immunity applies to Hennepin County and the State of Minnesota, we need not discuss licensing immunity or the notice provisions.




Judge Roland C. Amundson

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.