This opinion will be unpublished and

may not be cited except as provided by

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




Justin M. McGee, a/k/a Justin M. Helleloid,



Independent School District No. 361,


Jon Alan Pearson, defendant.

Filed March 17, 1998

Reversed and remanded

Short, Judge

Koochiching County District Court

File No. C896504

Teri Ellen Bentson, 610 East Minnehaha Parkway, Minneapolis, MN 55417 (for appellant)

Raymond L. Tahnk-Johnson, Lawrence J. Hayes, Jr. & Associates, 2600 Eagan Woods Drive, Suite 360, Eagan, MN 55121 (for respondent)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Foley, Judge.[*]


SHORT, Judge

From 1983 through approximately 1990, Justin M. McGee was a student at Falls Elementary School in Independent School District No. 361, located in International Falls, Minnesota. In 1985, while a second grader, McGee was designated a student with emotional or behavioral problems (EBD) and assigned a special education teacher, John Alan Pearson. That teacher sexually abused McGee. McGee sued the school district and the teacher for damages under theories of respondeat superior, negligent retention, assault and battery, and intentional infliction of emotional distress. Fourteen months after the complaint was filed, the school district moved for summary judgment and McGee moved for a continuance to conduct additional discovery on whether the teacher's acts were foreseeable. The trial court granted summary judgment in the school district's favor under Minn. R. Civ. P. 54.02. On appeal, McGee argues the trial court: (1) erred in resolving fact issues; and (2) abused its discretion by denying his motion for a continuance. We reverse and remand.


On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); see Minn. R. Civ. P. 56.03 (setting forth trial court standard for summary judgment). The decision whether to grant a continuance rests in the trial court's discretion, and we will not reverse the trial court's ruling absent a clear abuse of that discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977); see Minn. R. Civ. P. 56.06 (providing for continuance for nonmovant to respond to summary judgment motion).


A school district is not liable for a teacher's intentional torts, even though the conduct occurred within work-related boundaries, unless the acts were foreseeable and related to the teacher's duties. P.L. v. Aubert, 545 N.W.2d 666, 668 (Minn. 1996); see Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306, 311 (Minn. 1983) (concluding fact issue whether sexual advances by psychologist were foreseeable, related to and connected with acts otherwise within scope of employment); Lange v. National Biscuit Co., 297 Minn. 399, 404, 211 N.W.2d 783, 786 (1973) (holding employer liable for assault by employee when assault occurs within work-related limits of time and place).

McGee argues the trial court erred in granting summary judgment in favor of the school district because the teacher's sexually abusive conduct was foreseeable and an indivisible act directly related to his teaching activities. It is undisputed: (1) in 1986, as an EBD elementary third-grader, McGee told his mother that his teacher "had been touching my bottom"; (2) the alleged contact occurred during "lap time" sessions, where the teacher encouraged communication by holding McGee on his lap in a screened-off section of the classroom; (3) the teacher kept a "lap log" to evaluate McGee's progress with the school psychologist, and school personnel observed the teacher engaged in "lap time" with McGee on numerous occasions; (4) McGee's mother immediately reported McGee's accusation to the teacher, who allegedly told the school district's special education director and Koochiching County Family Services; (5) the teacher met with McGee and his parents, but the 1986 complaint was not reported to the school principal or noted in the teacher's personnel file; (6) no change was made in either McGee's EBD treatment or teacher assignment; (7) in 1991, in conjunction with psychiatric treatment, McGee again reported that the teacher was sexually abusing him; and (8) in 1992, the teacher pleaded guilty to felony sexual conduct in the second degree for his conduct with McGee. Viewing this evidence in the light most favorable to McGee, there is at least a fact issue as to whether the teacher's conduct was foreseeable and related to his teaching duties.

In granting judgment for the school district, the trial court concluded: (1) the 1986 complaint did not give the school district notice of the potential for abuse because the investigation was resolved to the family's satisfaction and no sexual abuse was substantiated; and (2) the teacher's method of dealing with students ("lap time") was within the acceptable methods of teaching practice. But to reach those conclusions, the trial court improperly resolved fact issues. See Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981) (holding trial court, on summary judgment motion, not to decide factual issues, but to determine whether any fact issues exist). Unlike the facts of P.L., McGee did not try to conceal the teacher's conduct. See P.L., 545 N.W.2d at 668 (holding summary judgment properly granted on foreseeability where closer vigilance of district would not have uncovered relationship because both participants worked hard to conceal it). Moreover, the school district allowed McGee to remain under the teacher's "care" for approximately three years following the 1986 complaint. In addition, McGee submitted an expert affidavit that enumerated nineteen reasons why the school district should have foreseen the teacher's sexually abusive conduct. Cf. id. (concluding while teachers have power and authority over students, where no expert testimony or affidavits presented regarding potential for abuse of power, there can be no implied foreseeability). A jury should be given an opportunity to determine whether McGee's 1986 complaint put the school on notice of the teacher's conduct. Under these circumstances, fact issues preclude summary dismissal of McGee's claims against the school district.


Trial courts should grant continuances liberally, particularly when the party opposing summary judgment has had insufficient time to complete discovery. Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982); see Minn. R. Civ. P. 56.06 (permitting trial court to grant continuance when party opposing summary judgment cannot present facts essential to justify party's opposition). Two factors determine the appropriateness of a continuance:

[F]irst, whether the party seeking more time is acting from a good faith belief that material facts will be discovered, or is merely engaged in a "fishing expedition," and, second, whether the party has been diligent in seeking discovery prior to bringing the motion.

Bixler by Bixler v. J.C. Penney Co., 376 N.W.2d 209, 216-17 (Minn. 1985). A Rule 56.05 affidavit requires specificity as to the proof expected, the course of discovery necessary to obtain the evidence, and the reasons for the failure to complete the discovery to date. Vosbeck v. Lerdall, 245 Minn. 164, 167, 72 N.W.2d 371, 374 (1955).

McGee argues the trial court abused its discretion by summarily denying his motion for a continuance to conduct additional discovery. The record demonstrates: (1) the complaint was filed on January 11, 1996, served on the school district in May, and amended in December of 1996; (2) the school district moved for summary judgment on March 10, 1997; (3) although the parties conducted written discovery during 1996, neither party commenced depositions until January of 1997; (4) McGee served interrogatories and two document requests on each defendant, served a request for admissions on the teacher, conducted three depositions, defended three depositions, and responded to written discovery requests; (5) by a Rule 56.05 affidavit, McGee's attorney requested additional time to conduct written discovery and depositions, including a deposition of the special education director to demonstrate the school district had notice that McGee was being sexually abused by the teacher; and (6) in denying McGee's motion without comment, the trial court did not find lack of diligence or bad faith. Although the Rule 56.05 affidavit contains only a conclusory statement that there has been insufficient time to complete discovery and we are reluctant to reverse a trial court's exercise of discretion, we conclude discovery on the issue of the school's investigation of McGee's 1986 complaint will reveal material facts. See Bixler, 376 N.W.2d at 217 (holding additional discovery should be permitted where strong likelihood further discovery will reveal fact plainly material to outcome of litigation and plaintiff not unreasonably dilatory in failing to seek necessary discovery). Under these circumstances, we conclude the trial court abused its discretion by refusing to grant McGee a continuance to conduct additional discovery.

Reversed and remanded.

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