This opinion will be unpublished and

may not be cited except as provided by

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




Michelle Fahrendorff,

by and through her parent and natural

guardian, Russell Fahrendorff,



North Homes, Inc.,

d/b/a I.T.A.S.K.I.N. House,


Filed August 11, 1998


Schultz, Judge*

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. Art. VI, § 10.

Itasca County District Court

File No. C897128

Gerald W. Von Korff, Rinke-Noonan, 700 Norwest Center, P.O. Box 1497, St. Cloud, MN 56302 (for appellant)

Patricia E. Kuderer, Douglas J. Schiltz, Hoff, Barry & Kuderer, P.A., 7901 Flying Cloud Drive, #260, Eden Prairie, MN 55344 (for respondent)

Considered and decided by Amundson, Presiding Judge, Shumaker, Judge, and Schultz, Judge.



Appellant Michelle Fahrendorff sued respondent North Homes, Inc. on several counts of direct and vicarious liability, as a result of being sexually assaulted by a North Homes employee. In this appeal from a summary judgment, Fahrendorff argues that the district court erred in dismissing her claims. We affirm.


North Homes is a nonprofit corporation, which operates I.T.A.S.K.I.N. House (ITASKIN), a temporary youth crisis shelter for individuals under 18 years old. Fahrendorff was placed in ISTASKIN House from April 10, 1995, through April 18, 1995. At that time, Fahrendorff was 15 years old.

David Kist worked as a program counselor for North Homes from December 13, 1993, until May 26, 1995. Before hiring Kist, North Homes conducted a sexual exploitation background check and a standard Minnesota background check. The background checks indicated that Kist had no known history of sexual exploitation, nor any disqualifying criminal history. It also revealed that Kist had significant experience working with juveniles, including two and a half years working with adolescent girls.

On April 15, 1995, Kist came to work intoxicated and continued to drink when he arrived at work. During his shift, Kist went downstairs to Fahrendorff's room and offered her a cigarette and a beer. Kist sat on the bed with Fahrendorff and told her she was "very cute" and attempted to kiss her. Kist also touched Fahrendorff in various inappropriate places and told her he could make her have an orgasm.

The next day, Fahrendorff went to dinner with her family and told them about Kist's inappropriate sexual contact with her. Fahrendorff's parents immediately contacted the Itasca County Sheriff's Department, who notified North Homes. Kist was suspended and later terminated from employment following an investigation.

Fahrendorff sued North Homes, alleging it was (1) liable pursuant to the doctrine of respondeat superior for assault, sexual abuse, negligent supervision, and intentional infliction of emotional distress; and (2) directly liable for claims of negligence, negligent hiring, negligent training, negligent retention and intentional infliction of emotional distress.


On appeal from summary judgment, this court must determine whether any genuine issue of material fact exists and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). This court must view the evidence in the light most favorable to the nonmoving party. Id. The nonmoving party, however,

cannot rely on the pleadings alone to defeat a summary judgment motion but instead must produce specific facts which establish the existence of a genuine issue for trial.

Krogness v. Best Buy Co., 524 N.W.2d 282, 285 (Minn. App. 1994), review denied (Minn. Jan. 25, 1995).

[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).


Fahrendorff contends that North Homes was negligent because it failed to comply with state rules and regulations governing group homes, including failing to provide a full-time group parent in its facility. However, because this argument was not raised in Fahrendorff's complaint, nor argued before the district court during summary judgment proceedings, we are precluded from considering this new negligence argument on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (reviewing court must generally consider only those issues that record shows were presented and considered by district court in deciding matter before it); see also Pomush v. McGroarty, 285 N.W.2d 91, 93 (Minn. 1979) (appellant cannot raise new negligence theory on appeal).

Fahrendorff also argues that the district court erred in dismissing her direct liability claims against North Homes because ITASKIN Home breached its duty to provide her with a safe and secure living environment.

"The existence of a legal duty depends on the relationship of the parties and the foreseeability of the risk involved." Donaldson v. Young Women's Christian Ass'n., 539 N.W.2d 789, 792 (Minn. 1995). Here, North Homes owed a duty to provide Fahrendorff with a safe and secure living environment. However, even where a duty to protect exists, the duty extends only to foreseeable acts. Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 158 (Minn. App. 1993), review denied (Minn. July 15, 1993).

Fahrendorff argues that a material fact issue exists as to whether Kist's sexual assault against her was foreseeable to North Homes because of (1) two complaints and one rumor involving Kist's behavior while employed at ITASKIN; and (2) an affidavit submitted by John R. Krueger, the director of a children's facility in St. Cloud similar to ISTASKIN House, which stated that sexual contact between counselors and residents is a "well known hazard." We disagree.

In June 1994, a female resident claimed that Kist looked like he was going to kiss her while the two were preparing a pizza. It is undisputed that Kist did not actually kiss the resident, but the resident believed Kist was attempting to do so. The Itasca County Sheriff's Department conducted a full investigation and concluded that the allegations against Kist were unfounded. In October 1994, another employee of ISTASKIN reported that Kist had possibly engaged in inappropriate conduct by poking or tickling a female juvenile in the ribs in an attempt to break up a fight between her and another female resident. North Homes conducted an investigation and concluded that Kist's behavior was not sexual in nature. Also, Fahrendorff alleges that other residents at ITASKIN told her that Kist had provided them with alcohol and cigarettes. However, this allegation is merely an unsupported rumor, as well as inadmissible hearsay. See Blackwell v. Echman, 410 N.W.2d 390, 391 (Minn. App. 1987) (hearsay is inadmissible and must be disregarded on a motion for summary judgment).

Furthermore, in his affidavit, Krueger states that sexual contact between counselors and residents is a "well known hazard" in children's home settings because of the potential for the abuse of power by counselors. However, Kruger's affidavit does not establish a material fact issue concerning foreseeability. Krueger's affidavit makes no specific reference to ITASKIN House and does not state any specific evidence why a sexual assault was more likely to occur at the ITASKIN House than any other group home. Moreover, Kruger's affidavit is also inconclusive, noting that sexual abuse in group homes is "infrequent," and that it "may not be possible" to predict which counselor would commit sexual abuse.

A "'genuine issue' of material fact for trial `must be established by substantial evidence.'" DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997) (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions.

Id. at 71.

Upon examination of the record, we can find no substantial evidence that it was foreseeable to North Homes that Kist posed an unreasonable risk to female residents at ITASKIN House. The evidence is not sufficiently probative to permit reasonable persons to draw different conclusions about whether it was foreseeable to North Homes that Kist posed a danger to the safety of female residents at ITASKIN prior to his assault on Fahrendorff. Therefore, we conclude that Fahrendorff failed to meet her burden on summary judgment of presenting substantial evidence which demonstrated a material fact issue concerning foreseeability.

Since Fahrendorff failed to demonstrate that a material fact issue existed concerning foreseeability, a prima facie case of negligence was never established and the granting of summary judgment by the district court was mandatory. See Lloyd, 523 N.W.2d at 3 ("summary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial"). Therefore, the district court did not err in dismissing Fahrendorff's direct liability claims against North Homes.


Fahrendorff also alleges that North Homes is liable for the intentional tortious actions of Kist. She asserts that the district court erred in concluding that P.L. v. Aubert, 545 N.W.2d 666 (Minn. 1996), and Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306 (Minn. 1982), entitled North Homes to summary judgment. We disagree.

Vicarious liability imposes liability on one person for negligence of another based on the relationship between the parties. Sutherland v. Barton, 570 N.W.2d 1, 5 (Minn. 1997). To prove that North Homes was liable under the theory of respondeat superior, Fahrendorff had the burden of demonstrating evidence that the sexual assault was (1) related to Kist's duties; and (2) occurred within work-related limits of time and place. See Lange v. National Biscuit Co., 297 Minn. 399, 401-04, 211 N.W.2d 783, 784-86 (1973) (setting forth two-part test for vicarious liability and rejecting prior rule that liability attached to an employer if "the employee's acts were motivated by a desire to further the employer's business").

An agent is acting within the scope of his employment when he is performing services for which he has been employed or while he is doing anything which is reasonably incidental to his employment. The conduct must occur within work-related limits of time and place. The test is not necessarily whether the specific conduct was expressly authorized or forbidden by the principal but rather whether such conduct should fairly have been foreseen from the nature of the employment and the duties relating to it.

Marston, 329 N.W.2d at 311 n.3.

It is undisputed that Kist's sexual assault on Fahrendorff occurred during the work-related limits of time and space. However, in Aubert, 545 N.W.2d at 668, the supreme court held that a school district was not liable for a teacher's sexual assault on one of her students, even though the acts occurred within the work-related limits of time and place, because such acts were unforeseeable and were unrelated to the employee's duties. The supreme court noted that it found no evidence that sexual relationships between a teacher and student were a well-known hazard. Id. The court also stated that "sexual contact by the teacher toward the student could not be considered an `indivisible' act directly related to her teaching duties." Id.

The record does not demonstrate specific evidence that a sexual assault between a program counselor and a resident was a well-known hazard. Neither the previous incidents and rumors involving Kist, nor the affidavit submitted by Krueger establish a material fact issue concerning foreseeability. Krueger's affidavit is nothing more than an unsupported conclusory allegation, which was insufficient for Fahrendorff to oppose a motion for summary judgment. See Gutwin v. Edwards, 419 N.W.2d 809, 812 (Minn. App. 1988) (statements in affidavit in opposition to summary judgment must contain more than unsupported conclusory allegations, unwarranted opinions, or legal conclusions).

Furthermore, Kist's conduct in this case was not related to his duties as a program counselor. Program counselors were clearly told that physical contact with residents was not permitted unless absolutely necessary to prevent physical harm. Kist's actions were criminal and conducted purely for his own personal gratification. Therefore, because the sexual assault by Kist on Fahrendorff was unforeseeable and unrelated to his duties as a program counselor, the district court did not err in granting summary judgment to North Homes on the issue of vicarious liability.