This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2143

A05-2174

 

Anessa Dawley,

Appellant (A05-2143),

 

Jeff St. Mane, et al.,

Appellants (A05-2174),

 

vs.

 

John Tuchek,

Defendant,

 

City of Lanesboro,

Respondent.

 

Filed July 25, 2006

Affirmed in part, reversed in part, and remanded

Hudson, Judge

 

Fillmore County District Court

File Nos. C4-04-178, C6-04-179

 

Wilbur W. Fluegel, Fluegel Law Office, 150 South Fifth Street, Suite 3475, Minneapolis, Minnesota 55402 (for appellant Dawley)

 

John C. Dunlap, Stacie M. Otte, Dunlap & Ritts, P.A., 7000 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, Minnesota 55415; and

 

Jeffrey Hanson, Hanson Law Office, 119 Sixth Street Southwest, Suite B, Rochester, Minnesota 55902 (for appellants St. Mane, et al.)

 

Jeff M. Zalasky, Jon K. Iverson, Pamela F. Whitmore, Iverson Reuvers, LLC, 9321 Ensign Avenue South, Bloomington, Minnesota 55438 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellants brought this consolidated action for personal injuries and economic damage incurred after the police chief of the City of Lanesboro set a fire, which destroyed several downtown buildings.  Appellants challenge the district court’s summary judgments dismissing their claims regarding the city’s vicarious liability for the police chief’s intentional torts, including assault, negligence and negligent infliction of emotional distress (NIED), as well as the city’s direct liability for negligent hiring, supervision and retention.  Appellants argue that the district court erred by (1) concluding that, because its employee’s alleged misconduct was unforeseeable, the city was not vicariously liable for his actions; (2) dismissing appellants’ direct negligent-retention and supervision claims because the city was protected by statutory and vicarious official immunity; (3) dismissing appellants’ direct negligent-hiring claim because the act of setting the fire was not foreseeable; and (4) dismissing the NIED claims of two appellants because they failed to introduce evidence of physical manifestations of distress.  By notice of review, respondent challenges the district court’s determination that immunity defenses did not bar the negligent-hiring claim.

We affirm the district court’s grant of summary judgment on the negligent-retention and supervision claims, as well as the NIED claims.  But because we conclude that genuine issues of material fact on the foreseeability of the employee’s action preclude summary judgment on the vicarious liability and negligent hiring issues, we reverse summary judgment on these issues and remand them for trial. 

FACTS

 

            Respondent City of Lanesboro (the city) hired defendant John Tuchek as a police officer in 1998 and later promoted him to police chief.  On the night of April 7, 2002, Tuchek intentionally started a fire by igniting a cardboard box next to the brick wall of a downtown Lanesboro building containing upstairs apartments occupied by appellant Dawley, his former girlfriend, and appellant Cockrum.  The fire destroyed the building and a business located in the building, both owned by other appellants, along with other buildings on the block. 

The fire occurred shortly after Tuchek reported to the Fillmore County Sheriff’s Department that he was going on duty to investigate a report of rock throwing in downtown Lanesboro.  Tuchek testified at a deposition that he did not intend to burn the buildings, but that his intent in starting the fire was to “give [him] an excuse to go up and knock on [Dawley’s] door and she would answer the door.”  After he ignited the fire, Tuchek went inside and knocked on Dawley’s and Cockrum’s doors; Dawley, her daughter, and Cockrum exited the building.  

            Before the city hired Tuchek as a police officer in 1998, the city hired an investigator to check his background, as required by state rules imposing standards for the Minnesota Police Officers Standards and Training board (POST standards).  See Minn. R. 6700.0700, subp. 1(D) (2005).  The investigator sent out several questionnaires, including a questionnaire to one of Tuchek’s former employers, the Douglas County (Colorado) sheriff’s department.  The department responded by stating that Tuchek had been terminated for failure to meet standards and gave no opinion on recommending him for employment.  Tuchek also took an MMPI test in partial satisfaction of a POST requirement for psychological evaluation; the psychologist who scored the test, however, never met Tuchek and did not perform an oral psychological interview, which is required to meet POST standards.  See Minn. R. 6700.0700, subp. 1(H) (2005).  The then-police chief of Lanesboro, John Carlin, recommended that the city hire Tuchek as a police officer but did not tell the Lanesboro City Council about Tuchek’s termination from the Colorado sheriff’s department.  Carlin signed and submitted a required affidavit to the POST board stating that the POST requirements for Tuchek’s hire, including the psychological examination, had been met.  Tuchek was hired.

            In 2000, Tuchek applied for a job with the City of Preston police department.  The same person who had performed the previous investigation was hired to investigate him again.  This later, more complete investigation revealed reports of an incident of Tuchek’s stalking a Colorado casino employee and a sexual harassment policy violation at a former place of employment.  The investigator did not share this further information with the City of Lanesboro because of data privacy issues.  But Tuchek told John Carlin that an allegation of stalking had come up during his application with the Preston police department.  When Carlin asked Tuchek to look into the allegation further and report back to him, an employee of the Cripple Creek, Colorado police department told Tuchek she could not locate his name in the state’s criminal information computer system.  Tuchek also testified that he contacted the Colorado Division of Gaming, which had no information on the complaint.  Tuchek so informed Carlin, who made no further inquiry. 

In 2001, when Carlin retired, the city hired Tuchek as police chief with no additional investigation.  In February 2002, the city investigated a report that Tuchek had stopped a sixteen-year-old girl, issued her a “fake” traffic ticket, and commented on her breasts.  Tuchek admitted issuing the “fake” ticket but denied making the comments.  During that same month, the city investigated a report of a pornographic screen saver on a city computer.  Tuchek was able to describe the material after it was removed from the computer.  The city administrator also noted that Tuchek was “harassing [city] employees,” that he was “flashing his badge” off-duty at girls in Winona bars, and that he told a city employee that he might commit suicide because has was going to “lose everything.”  The city council voted to issue Tuchek a written reprimand and ordered him to take classes in community awareness, and community relations in the area of power, age, and gender, with scheduled three- and six-month reviews.  Three weeks later, the fire occurred.

Appellants filed separate actions alleging the city’s liability on a theory of respondeat superior for Tuchek’s intentional or negligent acts in setting the fire as well as the city’s direct negligence in hiring, retaining, and supervising Tuchek.  The city denied liability for Tuchek’s intentional or negligent acts under respondeat superior or direct negligence theories and asserted defenses of statutory and vicarious official immunity.  Tuchek, who was convicted of arson arising from the 2002 fire, did not file an answer.  The district court issued summary judgment for the city on all claims in both actions.  The district court concluded that (1) under a theory of vicarious liability, no genuine issue of material fact existed as to (a) whether the city should have foreseen Tuchek’s intentional conduct, and (b) whether Tuchek’s negligent actions were motivated at least in part by his desire to serve the city’s interests; (2) the application of both statutory and vicarious official immunity defenses precluded direct claims of negligent supervision and retention; (3) although immunity defenses did not preclude the direct negligent-hiring claim, summary judgment was appropriate because no genuine issues of material fact existed on the city’s duty of care and the foreseeability of Tuchek’s conduct; and (4) no genuine issues of material fact existed on the physical manifestations of plaintiffs’ emotional distress, making summary judgment appropriate as a matter of law.  In this consolidated appeal, respondent challenges, by notice of review, the district court’s determination that immunity defenses did not bar the negligent-hiring claim.

D E C I S I O N

On appeal from summary judgment, an appellate court determines “whether there are genuine issues of material fact and whether the district court erred in applying the law.”  Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 411 (Minn. 1996).  The court views the evidence in the light most favorable to the nonmoving party and resolves any doubts as to the existence of an issue of material fact against the moving party.  Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981).  The court reviews the district court’s interpretation of law de novo.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).

I

            An employer may be held vicariously liable under the principle of respondeat superior for an employee’s torts committed within the scope of employment.  Schneider v. Buchman, 433 N.W.2d 98, 101 (Minn. 1988).  This liability is based not on fault of the employer, but rather on the policy determination that acts committed within the scope of employment should be allocated to the employer as a cost of doing business.  Fahrendorff ex rel. Fahrendorff v. N. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999).  Vicarious liability may be imposed for an employee’s intentional torts when the tort (1) occurs within work-related limits of time and place; and (2) is related to the employee’s duties.  Hagen v. Burmeister & Assocs., Inc., 633 N.W.2d 497, 504 (Minn. 2001) (citing Lange v. Nat’l Biscuit Co., 297 Minn. 399, 404, 211 N.W.2d 783, 786 (1973)).   

Because the district court correctly determined that a material factual issue existed on the factor of work-related limits of time and place, we review the second factor, whether an act is related to an employee’s duties, by considering whether the act was foreseeable.  Id. at 504.  As distinguished from foreseeability in direct negligence actions, which is defined as “a level of probability which would lead a prudent person to take effective precautions,” foreseeability as a test for respondeat superior liability “merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.”  Fahrendorff, 597 N.W.2d at 912.

Thus, evidence that a particular act is a well-known risk in a certain industry raises a material factual issue on the foreseeability of that conduct under a theory of respondeat superior.  See, e.g., Fahrendorff,597 N.W.2d at 911 (concluding that affidavit stating that sexual abuse by group home staff was a “well-known hazard” in industry presented material factual issue on whether employee’s sexual assault was foreseeable); see also Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306, 311 (Minn. 1983) (noting testimony that sexual relations between a patient and a therapist was a well-known hazard and “thus, to a degree, foreseeable and a risk of employment”).  Additionally, we recognize that as a matter of public policy, the power and authority granted to police officers may support the broad imposition of respondeat superior liability for police misconduct.  See Mary M. v. City of Los Angeles, 814 P.2d 1341, 1349–50 (Cal. 1991) (holding city who employed police officer vicariously liable for officer’s sexual assault on detainee, stating that “[i]n view of the considerable power and authority that police officers possess, it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct . . . . the risk of such tortious conduct is broadly incidental to the enterprise of law enforcement”).     

            We conclude that on the record as presented, a material factual issue exists on the foreseeability of Tuchek’s conduct.  Although the district court viewed Tuchek’s fire setting as an isolated incident, the record reflects that it may have been part of a broader pattern of sexually harassing behavior.  Appellants submitted the expert affidavit of psychologist Harold Brull, containing the opinion that the fire was a “hero fire,” related to sexual harassment.  Tuchek acknowledged that the only reason he set the fire was to attract the attention of appellant Dawley, his former girlfriend.  And the city has a policy defining conduct unbecoming a police officer, which specifically prohibits officers either on or off duty from making unwelcome sexual advances or engaging in “other unwelcome verbal or physical conduct or communication of a sexual nature.”  Lanesboro Police Dep’t Policy Conduct Unbecoming a Peace Officer, Principle Four, Rule 4.5,(1996).  This rule falls within the general provision recognizing the risk of misuse of a police officer’s power and authority as broadly incidental to the city’s police power.  See id. at Principle Four (stating that “[p]eace officers shall not, whether on or off duty, exhibit any conduct which discredits themselves or their department or otherwise impairs their ability or that of other officers or the department to provide law enforcement services to the community”).  Therefore, we reverse the district court’s grant of summary judgment on the issue of respondeat superior as applied to Tuchek’s intentional acts.

            Both complaints additionally alleged claims of Tuchek’s negligence and that he placed respondents “in a zone of danger.”  This may be interpreted as a claim of respondeat superior for negligent conduct.  An employer may be held liable for an employee’s negligent act if it can be “shown that his conduct was, to some degree, in furtherance of the interests of his employer.”  Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 15 (Minn. 1979).  We agree with the district court that the record contained insufficient evidence to infer that Tuchek’s acts were motivated by a desire to further the interests of the city and affirm summary judgment on the issue of the city’s liability on a respondeat superior theory for Tuchek’s negligence.    

II

            Appellants have alleged direct claims against the city for the negligent hiring, retention, and supervision of Tuchek, against which the city has asserted defenses of both statutory and vicarious official immunity.[1]  The application of immunity presents a question of law that this court reviews de novo.  Gleason  v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998). 

            Statutory immunity

Although a municipality is generally subject to liability for the torts of its officers and employees,Minn. Stat. § 466.02 (2004), liability is excluded for “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”  Minn. Stat. § 466.03, subd. 6 (2004).  Courts interpret this provision narrowly in accordance with its purpose “to preserve the separation of powers by insulating executive and legislative policy decisions from judicial review through tort actions.”  Rico v. State, 472 N.W.2d 100, 104 (Minn. 1991).  The municipality bears the burden of establishing its immunity from suit.  Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). 

            In reviewing a claim of statutory immunity, the courts identify the precise governmental conduct being challenged and then evaluate that conduct to distinguish between planning and operational functions.  Schroeder v. St. Louis County, 708 N.W.2d 497, 504 (Minn. 2006).  “Statutory immunity is extended when there has been a planning-level decision” weighing “social, political, or economic considerations.”  Id.(citation omitted).  But “[s]tatutory immunity does not extend to operational-level decisions” such as the application of skills to carry out an established policy.  Id.; see Angell v. Hennepin County Reg’l Rail Auth., 578 N.W.2d 343, 346 (Minn. 1998) (contrasting implementation of policy with formulation of policy).   

Decisions on hiring, retention and supervision are frequently considered policy-level activities that are protected by statutory immunity.  Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 212 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001); see also Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 413 (Minn. 1996) (holding that training of employees was planning-level conduct, which was protected by statutory immunity); Oslin v. State, 543 N.W.2d 408, 416 (Minn. App. 1996) (determining that decisions on supervision and retention “were necessarily entwined in a layer of policy-making that exceeded the mere application of rules to facts”), review denied (Minn. Apr. 1, 1996).  

We conclude that the district court correctly granted summary judgment on the issue of statutory immunity on appellants’ negligent-retention and supervision claims. The state regulations governing police officers provide that “internal discipline is properly a function of the appointing authority.”  Minn. R. 6700.1500, subp. 3 (2005).  The city presented evidence that the city council held a meeting to determine the type of discipline to be given Tuchek after the 2002 harassment incident, considered several courses of action, and issued Tuchek a reprimand with direction to take classes on appropriate behavior with women and juveniles.  This evidence sufficiently establishes that the city engaged in policy decisions on Tuchek’s retention and sustains the city’s burden of showing that it is entitled to statutory immunity for its decision.  Similarly, the district court did not err in determining that the city used its discretionary authority to supervise Tuchek when he was on duty, entitling the city to statutory immunity on the issue of negligent supervision. 

But we also agree with the district court that the city failed to sustain its burden of showing that it is entitled to statutory immunity on appellants’ negligent-hiring claim.  The POST regulations require that a person eligible to be licensed as a police officer meet minimum selection standards.  Minn. R. 6700.0700 (2005).  These selection standards include a psychological evaluation, including an oral interview with a licensed psychologist, in order to determine that the applicant “is free from any emotional or mental condition which might adversely affect the performance of peace officer duties.”  Id. at subp. 1(H).  Additionally, the POST standards require a “thorough background search, including searches by local, state, and federal agencies, to disclose the existence of any criminal record or conduct which would adversely affect the performance by the applicant of peace officer duties.”  Id. at subp. 1(D).  The POST requirements are not discretionary with the hiring authority, but mandated by state regulation.  Therefore, the city’s compliance with these requirements does not implicate protected policy-level activity that would entitle the city to statutory immunity.

Vicarious official immunity

The doctrine of common-law official immunity, which protects government officials in the course of their official duties, is “intended to protect public officials from the fear of personal liability that might deter independent action.”  Janklow v. Minn. Bd. of Exam’rs for Nursing Home Adm’rs, 552 N.W.2d 711, 715 (Minn. 1996) (quotation omitted); see also Davis v. Hennepin County, 559 N.W.2d 117, 120–21 (Minn. App. 1997), review denied (Minn. May 20, 1997).  Thus, while “statutory immunity protects what might be termed policy judgments (which may take into account competing policy factors), . . . official immunity protects more individual, professional judgment (wherein the judgment necessarily reflects the factors of a situation and the professional goal[ ]).”  Janklow, 552 N.W.2d at 716 (citations omitted).  In certain cases, a government entity is entitled to seek the protection of official immunity through the doctrine of vicarious official immunity.  Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992). 

Official immunity protects only discretionary acts, which involve the exercise of individual professional judgment, and does not protect ministerial acts, which involve merely the execution of specific duties, arising from fixed facts, which dictate the scope of an employee’s conduct.  Schroeder, 708 N.W.2d at 506.  “[T]he existence of a policy that sets a sufficiently narrow standard of conduct will make a public employee’s conduct ministerial if he is bound to follow [that] policy.”  Munn v. Mornson, 708 N.W.2d 475, 491 (Minn. 2006) (citation omitted). 

As with statutory immunity defenses, we conclude that the district court did not err in issuing summary judgment based on vicarious official immunity for the city employees’ acts in retaining and supervising Tuchek.  The city administrator used her professional judgment to investigate claims regarding Tuchek’s harassment of the minor and the incident of the pornography on the city computer.  She made the determination that Tuchek’s threat of suicide was not credible, which helped lead to the city’s decision to retain and discipline Tuchek, rather than terminate his employment.  These recommendations were within her discretion as a professional employee and entitled her to official immunity, which applies to the city on principles of vicarious liability.

But John Carlin’s recommendation to hire Tuchek without an oral psychological examination and Carlin’s failure to inform the city council of Tuchek’s termination from police employment in Colorado for failure to meet standards implicate his fixed, ministerial duties under the POST regulations to affirm that Tuchek had met the POST requirements and to maintain documents showing the fulfillment of those requirements.  See Minn. R. 6700.0800, subp. 1 (2005) (stating that when POST board is notified of appointment of a person as a peace officer, chief law enforcement officer “shall” include an affirmation that the peace officer has met “all selection standards”); Minn. R. 6700.0700, subp. 2 (2005) (stating that chief law enforcement officer is required to maintain documents necessary to show completion of requirements).  Therefore, we conclude that the district court correctly determined that the defense of vicarious official immunity did not apply to shield these actions from the negligent-hiring claim.

Negligent hiring

Direct liability for negligent hiring is “predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.”  Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 911 (Minn. 1983).  “[L]iability is determined by the totality of the circumstances surrounding the hiring and whether the employer exercised reasonable care.”  Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422(Minn. App. 1993), review denied (Minn. Apr. 20, 1993).  Negligence is not to be determined by whether a particular, specific injury is foreseeable; rather, the focus is on the type of previous acts by the person committing the injury.  Ponticas, 331 N.W.2d at 912–13.  The degree of care required in hiring also depends on the particular duties required by the job.  Id. at 913. 

The district court concluded that summary judgment was appropriate on the negligent-hiring issue because the evidence did not establish a genuine issue of material fact on the foreseeability of Tuchek’s act of fire setting.  Although the court should decide the issue of foreseeability as a matter of law when the issue is clear, “[i]n close cases the question of foreseeability is for the jury.”  Whiteford by Whiteford v. Yamaha Motor Corp., 582 N.W.2d 916, 918 (Minn. 1998).  Similarly, proximate cause is usually a question of fact for jury determination.  Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633–34 (Minn. 1978).

While we acknowledge that the city could not have foreseen Tuchek’s specific fire-setting act, the issue of whether his conduct was foreseeable in a direct-negligence sense extends to the totality of the circumstances surrounding his hiring.  The record shows that although Tuchek did not have a history of violent behavior when he was hired, he did have a history of sexually harassing women, and an issue of material fact exists regarding whether an oral psychological examination or a more thorough background search would have disclosed this information.  In addition, the scope of the city’s duty in hiring is at least in part dictated by the job duties of police officers, who are expected to work frequently with the public in high-stress situations, where they may have significant power.  Cf. Yunker, 496 N.W.2d at 423 (holding that employer did not owe duty at time of employee’s hire to protect co-worker when employee was maintenance worker whose job required no exposure to the public and limited exposure to co-workers). 

Therefore, we conclude that a material factual issue exists on whether the acts of the city and Carlin as its agent in failing to follow POST standards by requiring an oral psychological evaluation and a thorough background search, followed by placing Tuchek in a position where he had police authority and could use that authority to harass women, breached a duty to appellants when the results of that examination or search may have yielded information preventing his hire.  Further, a material factual issue exists as to whether this breach proximately caused appellants’ damages.  See Ponticas, 331 N.W.2d at 915 (stating that negligence in hiring apartment caretaker found by jury was “clearly” proximate cause of injury to plaintiffs when it was the only reason tortfeasor was on premises, and he was provided with passkey to enter apartment).  Therefore, because material factual issues exist regarding duty and causation, we conclude that the district court erred in granting summary judgment on the issue of negligent hiring, and we reverse and remand that issue for trial. 

III

Appellants Dawley and Cockrum challenge the district court’s determination that summary judgment was proper on their emotional distress claims because neither of them provided evidence of physical injuries.  A plaintiff wishing to recover for NIED must prove the four elements of a negligence claim—duty, breach, injury, and causation—as well as three additional elements specific to NIED claims: presence in the zone of danger of physical impact, reasonable fear for own safety, and severe emotional distress “with attendant physical manifestations.”  Engler v. Illinois Farmers Ins. Co., 706 N.W.2d 764, 767 (Minn. 2005) (citing K.A.C. v. Benson, 527 N.W.2d 553, 557 (Minn. 1995)).  The physical-manifestation requirement is designed to assure the genuineness of the emotional distress.  Silberstein v. Cordie, 474 N.W.2d 850, 857 (Minn. App. 1991).  

      Dawley and Cockrum allege some physical manifestations of emotional distress.  But even if we were to determine that these allegations posited sufficient physical injury to survive summary judgment, the history of the parties’ confidential medical records fails to substantiate a genuine issue of material fact on the causation of the parties’ distress by Tuchek’s setting of the fire.  See K.A.C., 527 N.W.2d at 558 (stating the causation requirement for NIED claims).  Thus, we affirm summary judgment on this issue. 

Affirmed in part, reversed in part, and remanded.