may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
David Boysen, et al.,
Corey Boysen, et al.,
Filed July 29, 1997
Olmsted County District Court
File No. C196867
Jeffrey A. Hanson, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, Marquette Bank Building, P.O. Box 549, Rochester, MN 55903-0549 (for Appellant)
James Carlson, Muir, Heuel, Carlson & Spelhaug, P.O. Box 1057, Rochester, MN 55903-1057 (for Respondent Brian Ross)
Lee A. Bjorndal, Bryan J. Baudler, Baudler, Baudler, Maus & Blahnik, 108 North Main Street, Austin, MN 55912 (for Respondents David and Bonnie Boysen)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Holtan, Judge.
Appellant Christopher Kohn disputes the trial court's entry of summary judgment dismissing his negligence claim against respondents David and Bonnie Boysen. We affirm.
Prior to the night of the incident, Corey had been suspended from school and received home tutoring. Also, he had been charged with consumption of alcohol by a minor and assault. As a result, he was fined and put on probation by the juvenile court. As part of his probation, he was to keep out of trouble and not consume alcoholic beverages. Linda Boysen testified that she had told respondents about this problems.
On Saturday morning and afternoon, respondents were in Mankato. Saturday evening Corey had a party and made a keg of beer available for his guests' consumption. Several fights erupted at the party. In order to break up one such altercation, Corey discharged a shotgun into the outside air. Later that night, the group that had been dispersed by Boysen's shotgun blast returned with shotguns of their own and fired them in the direction of the remaining party guests. A shotgun pellet struck appellant's eye, and he lost the eye as a result. David Boysen testified that if he had observed a party in progress at the house he would have broken it up.
Appellant subsequently brought an action against several individuals, including respondents. Appellant alleged that respondents had agreed to assume the parental duties of their daughter, Linda Boysen, during the weekend, that by such assumption they had a duty to exercise reasonable care in undertaking to supervise Corey Boysen, and if they had exercised reasonable care, appellant's injury would not have occurred. Respondents moved for summary judgment, arguing that they did not assume parental duties and even if they had assumed these duties they did not owe a duty of care to appellant because appellant's injury was not foreseeable. The trial court granted respondents' motion for summary judgment, and appellant disputes this decision.
1. Duty of care
To maintain a claim for negligence, appellant must show (1) a duty, (2) a breach of that duty, (3) a causal connection between the breach of duty and the injury, and (4) an injury. Hudson v. Snyder, 326 N.W.2d 149, 157 (Minn. 1982).
Generally, under common law, a person owes no duty to warn or protect others who may be endangered by a third party's conduct. Patzwald v. Krey, 390 N.W.2d 920, 922 (Minn. App. 1986), review denied (Minn. Oct. 22, 1986). This rules applies unless "a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct." Restatement of Torts (Second) § 315(a) (1965). One such special relation is the duty of a parent to control the conduct of a child. Silberstein v. Cordie, 474 N.W.2d 850, 855 (Minn. App.) (citing Restatement of Torts (Second) § 316(b) (1965)), review denied and remanded in part on other grounds, 477 N.W.2d 713 (Minn. 1991). However, this duty is narrow and, at the very most, the duty arises when the parent has both the opportunity and the ability to control the child. Restatement of Torst (Second) § 316 cmt. b (1965).
The model jury instruction provides:
A parent is responsible for an injury caused by (his) (her) child if the parent (himself) (herself) was negligent with regard to (his) (her) duty to control the child. In order to find a parent negligent, you must find that the parent failed to exercise reasonable control over (his) (her) child. To find a parent negligent you must find:
1. That the parent knew, or should have known, of characteristics, habits, or prior conduct of the child similar to that which resulted in this injury.
2. That the parent knew, or should have known, of the need to control the child in the particular instance, and
3. That the parent had an ability to control the child and an opportunity to do so * * *.
4 Minnesota Practice, CIVJIG 112 (1986).
Appellant argues that, although respondents are not the parents of Corey, they nonetheless agreed to assume parental duties of supervising Corey over the weekend. Appellant asserts that respondents have changed their stories regarding the extent to which they agreed to "check on" Corey. Appellant states that in their depositions, respondents claimed that they only intended to check on Corey on Friday night because they were going to be out of town on Saturday evening, but that they placed no such similar restriction on their assumed duty in statements that they made to an investigator after the accident occurred. Appellant points to David Boysen's statement that Corey's mother asked them to "check on him once in a while and see how everything is going with him." Appellant does not read far enough in the investigator's transcript--two pages later the following exchange occurred:
Q. Okay, when Linda asked you to swing by and check on him every once in a while, did she think that you were going to check on him like Saturday?
A. No, because she knew that we were going to be gone.
Q. Or how about later Saturday when you got back.
A. Well we had planned on taking off and taking the whole weekend, but we came back the same night.
Similarly, appellant points to Bonnie Boysen's statement to the investigator that Linda "just asked if I'd go out to check on him. We just drove by that night but there was no soul out there." However, on the next page of the investigator's transcript the following exchange occurred:
Q. Did [Linda] ask you to check on [Corey] throughout the weekend?
A. No just on the Friday, we drove by there.
Q. Why just Friday?
A. I told her that we were going to be gone that weekend and I [said] we can drive by there Friday night.
Appellant raises the question of a variance between respondents' statements, assuming a material variance limits responsibility. There is no evidence that respondents agreed to full supervision of Corey Boysen for the weekend.
Appellant argues that there is a material issue of fact as to whether respondents assumed Linda's parental duties for the weekend. He asserts a duty is established by the fact of respondents' awareness that Linda Boysen would be gone for the weekend, that Corey Boysen had past behavioral problems and was on probation, and that respondents had an opportunity to observe him over the weekend. Corey Boysen did not live with respondents, nor did Corey's mother ask respondents to stay with him over the weekend or to take him into their home for the weekend. Respondents' knowledge of Corey's behavioral problems does not create a duty.
Taking the facts in the light most favorable to appellant, there is no genuine issue of material fact as to whether respondents assumed Linda Boysen's parental duties for the weekend. Respondents did not undertake an affirmative duty to exercise due care with respect to Corey. Furthermore, even granting that respondents assumed Linda's parental duties, appellant has not cited any authority where this duty has been extended to supervision beyond the child in the parent/child relationship.
2. Reasonable foreseeability of appellant's injury
Even if respondents had assumed a duty of care, that duty only covers foreseeable acts. Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 158 (Minn. App. 1993), review denied (Minn. July 15, 1993). The test of foreseeability is whether respondents were aware of facts indicating that appellant was being exposed to an unreasonable risk of harm. Id. Or, as stated by Chief Justice Cardozo, "The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." Palsgraf v. Long Island R.R., 162 N.E. 99, 100 (1928).
Taking the facts in the light most favorable to appellant, respondents could not have reasonably foreseen the events that transpired. This view is consistent with the law. See Spitzak, 500 N.W.2d at 158 (holding that owners of apartment complex could not have foreseen gang of teenagers chasing other teen into apartment, breaking window, and causing shard of glass to injure appellant's eye); cf. Silberstein, 474 N.W.2d at 855-56 (finding a question of fact on foreseeability where parents knew that child experienced delusional thoughts, that child refused to take medication, and that these combined elements previously led to a threat against another, and parents, nonetheless, left an unlocked shotgun in the house). Unlike the parents in Silbertstein, respondents, if they assumed the duty of parents, were not placed with the responsibility of "check[ing] on" the person who fired the shot that hit appellant.
The sequence of events to which appellant refers is merely a series of time-related events that appellant considers to be teleologically related occurrences. The fact of the accident does not import a causal relationship to the series of events. Analysis of causation is viewed from the sequence of events to the accident. Appellant relies mistakenly on deductive reasoning, claiming that the accident gives rise to the underlying facts. The event is not the father of the facts.
Moreover, in a negligence action a criminal act of a third party generally serves as an intervening cause sufficient to break the chain of causation, unless it was foreseeable. Spitzak, 500 N.W.2d at 158 n.3. Because it does not appear to have been foreseeable that multiple shotgun blasts would erupt from a keg party, the criminal act of firing a gun into a crowd breaks the chain of causation.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
[ ]1 Restatement of Torts (Second) § 316 (1965) states:
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from 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.