This opinion will be unpublished and

may not be cited except as provided by

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




L.G., et al.,



Kennedy Barber,


The Professional Association of Treatment Homes (PATH),


Filed July 20, 1999

Affirmed in part, reversed in part, and remanded

Parker, Judge[*]

Ramsey County District Court

File No. C5-97-7708

Patrick T. Tierney, Thomas E. McEllistrem, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, Saint Paul, MN 55101-1379 (for appellant)

Jodeen A. Kozlak, Jeanette M. Bazis, Greene & Espel, 333 South Seventh Street, 1700 Metropolitan Centre, Minneapolis, MN 55402 (for respondent PATH)

Michael J. Dwyer, Grannis, Grannis, Hauge, Edie, Anderson & Keller, P.A., 1260 Yankee Doodle Road, Suite 200, Eagan, MN 55121-2201 (for Respondent Barber)

Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


Because there are genuine issues of material fact as to (1) whether PATH is an independent contractor and (2) as to whether Barber is an employee of PATH, we reverse and remand the district court's grant of summary judgment. However, we affirm the grant of summary judgment on the breach of contract claim for lack of standing.


Kennedy Barber, the foster parent of a teenage boy, L.G., is alleged to have sexually abused him while L.G. was in his care. Respondent, Professional Association of Treatment Homes (PATH), is a private non-profit foster care agency, which placed L.G. in Barber's foster home. L.G. cites three separate occasions between 1992 and 1995 when various children made allegations of sexual abuse against Barber, but PATH did not further investigate and did not remove the boys from Barber's care. L.G. and his parents claim PATH is vicariously liable for Barber's abuse of L.G. and that PATH is liable for negligent hiring, retention and supervision of Barber. Appellant's case against Barber was settled.

Additionally, appellants bring a claim for breach of contract seeking to recover approximately $11,000 for payments they would have received from the State of Minnesota for L.G. as a special needs adoption subsidy, but that they were required to pay over to Ramsey County to subsidize L.G.'s foster care.

PATH denied appellant's allegations and moved for summary judgment on grounds of licensing immunity granted to the state and its employees under the Minnesota Tort Claims Act, and because PATH was a "duly delegated representative" of the commissioner of human services in connection with foster care licensing and supervision. The district court granted PATH summary judgment.


I. Standard of Review

On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) 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) (citations omitted), 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). The application of immunity is a question of law and is reviewed de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). Interpretation of statutes is also subject to de novo review. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). "[S]tatutorily created immunity should be construed narrowly." Bol v. Cole, 561 N.W.2d 143, 147 (Minn. 1997).

II. Is PATH a State Employee or an Independent Contractor ?

The district court granted PATH summary judgment based on governmental immunity from appellant's claims, holding that

PATH, by virtue of its standing as an "employee" of the state and as a duly delegated representative of the Commissioner of Human Services, enjoys the immunity afforded state employees under Minn. Stat. § 3.736, subd. 3(j).

The court relied on Andrade v. Ellefson, 391 N.W.2d 836 (Minn. 1986) in granting the summary judgment motion. Andrade held that a governmental unit's (Anoka County) licensing activities were entitled to governmental immunity because it was a state employee under Minn. Stat. § 3.376, subd. 3 (1998), which provides that

Without intent to preclude the courts from finding additional cases where the state and its employees should not, in equity and good conscience, pay compensation for personal injuries or property losses, the legislature declares that the state and its employees are not liable for the following losses:

* * * *

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

Andrade, 391 N.W.2d at 840. PATH may be an "employee" of the state under the statute, which states:

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) (emphasis added). The term "person" includes political and corporate bodies. Minn. Stat. § 645.44, subd. 7 (1998); Andrade, 391 N.W.2d at 836.

In Andrade, the supreme court held that while the statute expressly excludes counties from the definition of "state" for purposes of the act, this

does not mean a county cannot, in certain circumstances, be an "employee" of the state. There is no inconsistency in saying, on the one hand, that the county, as a principal carrying out county functions, does not enjoy the state's immunity, while, on the other hand, saying that when the county acts for the state in performing a responsibility assigned to the state but delegated by it to the county, that the county partakes in the state's immunity.

Id. at 840. By holding that counties act as "employees" of the state when they investigate and license family day care facilities, the supreme court determined that counties are entitled to assert the State Tort Claims Act's licensing immunity.

Andrade held that Anoka County was an employee of the state and thus protected under Minn. Stat. § 3.376, subd. 3, because it was acting on behalf of the Department of Human Services and is authorized to enlist the help of county welfare agencies to investigate day care licensing. Id. at 840. Because Andrade specifically dealt with immunity for a county and not a private provider, the district court incorrectly found Andrade to be dispositive here; a key distinction between this case and Andrade is that PATH is a private entity and not a municipality.

We conclude that Koelln v. Nexus Residential Treatment Facility, 494 N.W.2d 914, 922, (Minn. App. 1993), review denied (Mar. 22, 1993), is apposite to the present facts. Koelln held that no discretionary immunity existed for a residential treatment facility because it was an independent contractor. Id. An independent contractor is an individual or corporation that meets the five factor test:

the factors applied in testing the relationship are: (1) The right to control the means and manner of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge. In determining whether the status is one of employee or independent contractor, the most important factor considered in light of the nature of the work involved is the right of the employer to control the means and manner of performance.

Guhlke v. Roberts Truck Lines, 268 Minn. 141, 143, 128 N.W.2d 324, 326 (1964). Furthermore,

[T]he determinative right of control is not merely over what is to be done, but primarily over how it is to be done. Basically, it is the distinction between a person who is subject to orders as to how he does his work and one who agrees only to do the work in his own way.

Corbin v. Commissioner of Revenue, 240 N.W.2d 809, 812 (1976). The issue of employment status is ultimately one of fact. Ossenfort v. Associated Milk Prods., Inc., 254 N.W.2d 672, 676 (Minn. 1977).

It is for the trier of fact to distinguish between the "right-to-control" characteristic of an employer-employee relationship and the fact of powerful influence not inconsistent with an independent-contractor relationship. Our function on appeal is to determine whether its finding may reasonably be supported by the evidence.


Appellants argue, under Koelln, that PATH does not have immunity because it is an independent contractor.[1], [2] Conversely, respondent asserts that Koelln is distinguishable, as it concerned whether private residential facilities were entitled to discretionary function immunity under Minn. Stat. § 3.736, subd. 3(b) (1990), while this case concerns licensing immunity under subd. 3(j). Koelln, 494 N.W.2d at 922. Respondents argument is misplaced because the Koelln court found that the private residential facility was not covered by Minn. Stat. § 3.736 because it was not an employee under Minn. Stat. § 3.732, however, the same requirement exists for all types of immunity under Minn. Stat. § 3.736. Id.

The Koelln court found that the facility was not an employee:

There are no facts showing [the private residential facility] is an employee of the state or county within the meaning of the discretionary immunity statutes. See Ossenfort v. Associated Milk Prods., Inc., 254 N.W.2d 672, 676 (Minn. 1977) (factors in distinguishing employee from independent contractor).

Id. In other words, because there was no affirmative showing on the part of the private residential facility that it was a state employee, it was deemed an independent contractor for purposes of Minn. Stat. § 3.736, subd. 3(b). "The burden is on the unit attempting to prove it is immune under the discretionary function exception." Id. at 921.

In this case, PATH did not affirmatively demonstrate that it was an employee of the state. Under Minn. Stat. § 3.736, a unit must be an employee of the state. An employee, under Minn. Stat. § 3.372, is not an independent contractor. PATH's status as an independent contractor is a question for the trier of fact, especially because the court must view the evidence in a light most favorable to appellant. Fabio, 504 N.W.2d at 761.

Immunity must be narrowly construed, because it is an exception to the general rule of governmental liability for torts. Minn. Stat. §§ 466.02, 466.03, subd. 6 (1998); Johnson v. County of Nicollet, 387 N.W.2d 209, 211 (Minn. App. 1986). The legislature did not intend that the immunity exception swallow the general rule of recovery for negligent governmental operations. Holmquist v. State, 425 N.W.2d 230, 231 (Minn. 1988). With that in mind, the district court must narrowly construe the immunity exception to liability and focus on its underlying purpose. Id. The purpose of immunity is to shield from liability any decisions involving the evaluation and weighing of social, political, and economic considerations. Id. at 232. Thus, not all of a governmental subdivision's complex professional decisions invoke immunity. We reverse the district court because a genuine issue of material fact remains to be determined as to whether PATH is an independent contractor.

III. Is Barber an Employee of PATH or an Independent Contractor?

The second material issue that remains is whether PATH was Barber's employer. In granting summary judgment, the district court held that Barber was not an employee of PATH, and that PATH could not, therefore, be 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). Alternatively, appellants argue that Barber was an employee of PATH and PATH was vicariously liable for his torts.

In determining Barber's employment status, the 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 a matter of law, foster parents are independent contractors), rev'd on other grounds, 481 N.W.2d 547 (Minn. 1992). In Kern, the supreme court used the same five factor test used here to determine whether PATH was an independent contractor or employee of the state for immunity purposes:

(1) The right of the employer to control the manner and means of performance of the work;
(2) The mode of payment;
(3) Furnishing of material or tools;
(4) Control of the premises where the work is to be performed; and
(5) Right of discharge.

322 N.W.2d at 189. In analyzing these factors, the district court found that

[t]he relationship between the county and the Kerns, for purposes of the control exercised over the foster parent, as well as the mode of payment, is almost identical to that in the present case.

While Kern is precedent for the current situation, 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 the light most favorable to the nonmoving party. Fabio, 504 N.W.2d at 761. Further, Barber is not a foster parent under the county, but a foster parent under a nonprofit private entity regulated by the county.

Several factors differentiate the PATH program from that in Kern. First, it appears that PATH had far more control over Barber then did the county agency over the foster home in Kern, where the social worker conducted only monthly visits. Kern, 322 N.W.2d at 189. PATH imposes various requirements, such as continuing education, progress reports, prohibition upon working for other foster agencies, willingness to accept difficult children, and PATH held itself out as Barber's employer.

Second, the mode of payment is different from that in Kern as well. While the foster parents in Kern received a fixed monthly stipend, id., Barber receives a stipend through PATH, respite pay (which must be approved by PATH), and leave of absence benefits. Barber's stipend could be reduced if he were not in compliance with PATH's rules.

The third criterion is the furnishing of materials and tools. The court found in Kern that the foster parents provided their own house. Id. Barber too provided the lodging for himself and the foster children. Appellants argue, however, that PATH's furnishing of forms, manuals, and training materials are enough to establish the relationship. Fourth, the control of the premises was Barber's. Yet, PATH exerted some control, such as recommendations as to licensure, sanctions, and inspections.

Fifth, PATH had the right to discharge Barber. Indeed, when the fourth allegation was made, PATH immediately removed children from Barber's house. PATH was able to place a hold on Barber's home, and made the determination of whether to place foster children with him.

Thus, taking the facts in the light most favorable to appellants, PATH had considerable control over Barber, and therefore there remains a genuine issue of material fact as to whether Barber was an employee of PATH. We therefore reverse and remand for a determination of whether PATH may be vicariously liable as an employer, or whether Barber was an independent contractor. We also point out that if on remand the district court finds that Barber was not an employee but an independent contractor it may need to address whether PATH might still be liable under the non-delegable duty doctrine.

We affirm the grant of summary judgment on the breach of contract claim for lack of standing. Because the adoption subsidy is a resource attributable to the child, and not the parents, L.G.'s parents lack standing to seek recovery of these monies and L.G. has not been shown to be a party to the contract.

Finally, we strike the Volunteers of America's appendix; they will have an opportunity to offer it to the district court on remand.

We also note that this court has recently decided a companion case, which presented factually different issues, and we independently reach similar conclusions on questions of law.

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] It is important to note that Koelln, and the issue of whether PATH was an independent contractor, were not raised or considered below, despite the fact that by statute independent contractors are not considered employees under Minn. Stat. § 3.376, subd. 3.

[2] Appellant also argues that Minn. Stat. § 253B.097, subd. 6 (1998) (providing immunity for facilities which provide community based treatment for the mentally ill), does not provide immunity for PATH. Appellant is correct; respondent does not assert it.