This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Kennedy Barber,


The Professional Association of

Treatment Homes,


Filed June 1, 1999

Affirmed in part, reversed in part, and remanded

Foley, Judge[*]

Ramsey County District Court

File No. C3-97-7707

Patrick T. Tierney, Thomas E. McEllistrem, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1000 First National Bank Building, 332 Minnesota St., St. Paul, MN 55101-1379 (for appellant)

Jodeen A. Kozlak, Jeanette M. Bazis, Greene Espel, P.L.L.P., 1700 Metropolitan Centre, 333 S. Seventh St., Minneapolis, MN 55402 (for respondent)

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


FOLEY, Judge

Appellant M.H. was a friend of a foster child. He visited his friend's foster home often, and was sexually abused by the foster parent. Appellant sued the foster parent and respondent, a non-profit private corporation that performs foster care licensing and evaluation, claiming that respondent was vicariously liable for the foster parent's actions and that it was negligent. Respondent moved for and was granted summary judgment based on (1) statutory immunity, (2) its claim that it was not vicariously liable, and (3) the fact that no special relationship existed between appellant and respondent, and therefore respondent had no duty to appellant, the breach of which was asserted in a separate claim of negligence.

We reverse the district court's determination that respondent had statutory immunity because an issue of fact yet remains as to whether respondent was an independent contractor. We also reverse the finding that there was no vicarious liability because an issue of fact remains as to whether the foster parent was an employee of respondent. We affirm the finding that no duty existed between respondent and appellant on the separate claim of negligence and remand for trial on the merits consistent with this opinion.


In the summer of 1992, following appellant's completion of eighth grade, he met defendant Kennedy Barber through his friend, L.G., a foster child in Barber's home. Barber was recommended for licensure and evaluated by respondent, The Professional Association of Treatment Homes (PATH), a non-profit corporation. PATH provides foster home placement and is a duly delegated representative of the Commissioner of the Department of Human Services.

Appellant regularly visited Barber's home, but lived with his mother and godmother. Barber began to sexually abuse appellant shortly after meeting him, and the two would sleep together in the same bed. Appellant estimates that he visited the foster home 200 times and was abused by Barber 100 times.

Four sets of allegations were made against Barber. In 1992, police and child protection determined the first set of allegations to be unsubstantiated, and PATH took no action with respect to Barber's license. In 1993, a second set of allegations was made, but child protection determined no investigation was needed. PATH conducted a licensing investigation, however, and learned for the first time that appellant would sometimes sleep in Barber's bedroom. A PATH social worker attempted to interview appellant but never did so.

In 1994, child protection and police again investigated allegations against Barber and found nothing. PATH took no further licensing action, although a hold was placed on Barber's foster home and social workers were no longer able to place children in his home without a court order. In 1995, after appellant stopped visiting the foster home, child protection notified PATH of a fourth set of allegations. These allegations were substantiated, PATH notified the police, and all foster children were removed from the house. Barber eventually pleaded guilty to two counts of criminal sexual conduct in the second degree, but denies the 1992, 1993, and 1994 allegations.


1. Standard of Review

On appeal from summary judgment, we ask whether there are any genuine issues of material fact and whether the lower courts erred in their application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court must view the evidence in a light most favorable to the nonmoving party, Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993), but is not bound by nor need give deference to the district court's application of the law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

2. Governmental Immunity

The district court found that PATH was an employee of the state and had licensing immunity.

[T]he state and its employees are not liable for the following losses:

* * * *

(j) a loss based on the failure of a person to meet the standards needed for a license, permit, or other authorization issued by the state or its agents[.]

Minn. Stat. § 3.736, subd. 3(j) (1998).

An "employee" of the state is defined as

all present or former officers, members, directors, or employees of the state, * * * or persons acting on behalf of the state in an official capacity, temporarily or permanently, with or without compensation. It does not include * * * an independent contractor * * *.

Minn. Stat. § 3.732, subd. 1(2) (1998). The term "person" includes political and corporate bodies. Minn. Stat. § 645.44, subd. 7 (1998); Andrade v. Ellefson, 391 N.W.2d 836, 840 (Minn. 1986).

Appellant argues that PATH does not have immunity because it is a private corporation and is licensed by the Minnesota Department of Human Services. But Minn. Stat. § 3.732, subd. 1(2) does not deny immunity because of these reasons, and Andrade, cited by appellant, does not hold that private organizations may not be employees of the state.

Appellant also argues that PATH does not have immunity because it is an independent contractor and does not fall under the definition of "employee" in Minn. Stat. § 3.732, subd. 1(2). See, e.g., Koelln v. Nexus Residential Treatment Facility, 494 N.W.2d 914, 922 (Minn. App. 1993) (no discretionary immunity existed for a residential treatment facility because it was an independent contractor), review denied (Minn. Mar. 23, 1993).[1] But see Andrade, 391 N.W. 2d at 840 (county welfare agency considered employee of state under immunity statutes).[2] Minn. Stat. § 3.736 provides that only employees of the state have immunity, and an employee under Minn. Stat. § 3.732 is not an independent contractor. PATH has the burden of showing it was an employee, not an independent contractor, and has not done so; nor did the district court address this. See Koelln, 494 N.W.2d at 921 (burden is on organization seeking immunity). Whether PATH is an independent contractor is a question for the trier of fact, not this court. Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 676 (Minn. 1977). We conclude an issue of material fact yet remains as to whether PATH is an independent contractor, and we reverse the district court. We therefore do not reach the issue of whether PATH has waived its immunity to the extent of its liability insurance.

3. Vicarious Liability

The district court found that Barber was not an employee of PATH and that PATH could not be held vicariously liable for his actions. As a general rule, an employer is not liable for the acts of independent contractors. Lamb v. South Unit Jehovah's Witnesses, 232 Minn. 259, 264, 45 N.W.2d 403, 406 (1950).

In determining Barber's employment status, the district court relied on Kern v. Steele County, 322 N.W.2d 187 (Minn. 1982), which held that foster parents were not employees of the county. See also Sayers v. Beltrami County, 472 N.W.2d 656, 665 (Minn. App. 1991) (as matter of law, foster parents are independent contractors), rev'd on other grounds, 481 N.W.2d 547 (Minn. 1992). But the issue of employment status is one of fact, Ossenfort, 254 N.W.2d at 676, and this is a summary judgment motion where the facts must be taken in a light most favorable to the nonmoving party. Here, Barber is not a foster parent under the county, but a foster parent under a non-profit corporation licensed by the Department of Human Services; an issue of fact yet remains as to whether he is an employee or independent contractor. Kern does not address and is not determinative of this issue. We reverse the district court's conclusion that Barber was not an employee.

Appellant also argued that under the non-delegable duty doctrine, even if Barber were an independent contractor, PATH is still liable. Because the issue of whether Barber is an employee or independent contractor is still to be determined, we decline to address this issue.

4. Duty Owed to M.H. by PATH

The district court found that under Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn. 1979), PATH owed no duty to appellant. But Cracraft concerns whether a municipality assumed a special duty of care as opposed to its general duty to protect the public. Id. at 804. PATH does not have functions that protect the general public, and no case has applied the Cracraft factors to a non-profit corporation.

Instead, we analyze this case using the general, common law rule that a third party does not have a duty to aid or protect others from harm unless there exists a special relationship between the two. Id. It is an issue of law for the court to decide. Donaldson v. Young Women's Christian Ass'n, 539 N.W.2d 789, 792 (Minn. 1995). The special relationship is usually only found for "common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection." Id. (citation omitted).

There are four general factors courts consider when deciding whether a special relationship, and therefore a duty, exists. First, a relationship is sometimes found where the plaintiff is particularly vulnerable and dependent on the defendant and the defendant holds considerable power over the plaintiff's welfare. Id.; Lundman v. McKown, 530 N.W.2d 807, 820. (Minn. App. 1984), review denied (Minn. May 31, 1995). Second, a duty may also arise where one accepts responsibility to protect another, though there be no initial duty. Walsh v. Pagra Air Taxi, Inc., 282 N.W.2d 567, 570 (Minn. 1979). This is particularly true if it involves pay. See Lundman, 530 N.W.2d at 821-22 (finding paid caregivers had duty to aid patient). Third, the harm to be prevented is one that the defendant can and should be expected to protect against. Donaldson, 539 N.W.2d at 792. Lastly, the court will ultimately consider it as a question of policy. Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 169 (Minn. 1989).

The parties cite various cases in support of their positions; however, no case supports or denies the extension of a non-profit corporation's duty to friends of foster children. See, e.g., Clark v. Whittemore, 552 N.W.2d 705, 708-09 (Minn. 1996) (manager of trailer park does not have duty to protect small children from sexual abuse of trailer park tenant); Donaldson, 539 N.W.2d at 793 (YWCA housing facility had no duty to prevent suicide); Harper v. Herman, 499 N.W.2d 472, 474-75 (Minn. 1993) (no duty existed between boat owner and social guest who dived into shallow water); Erickson, 447 N.W.2d at 169 (duty owed to protect third parties against criminals in parking ramp); Lundman, 530 N.W.2d at 813-15, 820-26 (child dies from diabetes after Christian Science care; stepparent, Christian Science nurse, and Christian Science practitioner had a duty; the Minnesota committee to protect Christian Science doctrines, a Christian Science nursing facility that gave advice, and First Church of Christ Scientist did not).

The only case that bears some semblance to the current fact pattern is Andrade; but Andrade concerned whether a county that inspected and licensed day care centers had a duty to children in the day care center for the torts of the day care provider. 391 N.W.2d at 837-38. This is distinguishable from whether a non-profit corporation that provides licensing and evaluative functions for foster homes has a duty to the friends of the foster children.

Whether a special relationship exists is an issue of law, which this court decides de novo. Donaldson, 539 N.W.2d at 792. We conclude that no special duty existed between PATH and appellant. Appellant was not particularly vulnerable and dependent on PATH, nor did PATH hold considerable power over appellant's welfare. Indeed, appellant lived with and was under the care of his mother at all times during these incidents. Furthermore, PATH did not undertake to protect appellant, and appellant did not pay PATH to protect him, nor did appellant's mother expect protection from PATH.

Apart from these facts, the harm to be expected was one that PATH most likely could protect against, especially because PATH may have known that Barber was sexually abusing appellant. But from a policy standpoint, the facts are no worse than in Clark, where the court found no duty for a trailer park manager to report the sexual abuse of small children after they had complained to her. 552 N.W.2d at 708. This, despite the fact that the manager rented a trailer to the abuser after he had told her that he had previously pleaded guilty to a charge of criminal sexual conduct involving children at another trailer park. Id. at 707-08. From a policy standpoint, if Clark does not hold the manager responsible, then neither is PATH responsible. Thus, we affirm the district court's finding that PATH had no special relationship with, and thus no duty to, appellant.

Affirmed in part, reversed in part, and remanded.

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

[1] Respondent argues that Koelln is distinguishable because it concerned discretionary function immunity under Minn. Stat. § 3.736, subd. 3(a), and the case here concerns licensing immunity under subd. 3(j). Koelln, 494 N.W.2d at 922. But Koelln found that a private residential facility was not covered by Minn. Stat. § 3.736 because it was not an employee under Minn. Stat. § 3.732, the same requirement that exists for all types of immunity under Minn. Stat. § 3.736. Id. Minn. Stat. § 3.732 applies to both discretionary and licensing immunity.

[2] The district court found Andrade to be dispositive of this issue. 391 N.W.2d at 840 (county agency was an employee of the state and immune). But Andrade did not determine the issue of whether non-profit corporations are employees or independent contractors for purposes of the immunity statute. Furthermore, the Municipal Tort Claims Act is now in effect, rendering the decision in Andrade only applicable when a county does not have actual knowledge of a failure to meet licensing standards that resulted in a dangerous condition that foreseeably threatened the plaintiff. Loftus v. Hennepin County, 591 N.W.2d 514, 516 (Minn. App. 1999) (Andrade and Minn. Stat. § 3.736, subd. 3(j) do not apply where Minn. Stat. § 466.03, subd. 6d (1998) (Municipal Tort Claims Act) takes precedence).