George R. Ramier, Patrick W. Michenfelder, Ramier & Michenfelder, P.A., 780 Park Place West, 6465 Wayzata Blvd., Minneapolis, MN 55426 (for appellant)

Kelley V. Rea, Legal & Security Services, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Harten, Judge.

Appellant rape victim argues that the security company that performed a security assessment for the homeless shelter where she was raped owed her a duty of care to perform the assessment in a non-negligent manner. She also asserts that the security company is liable as a participant in a joint enterprise with the homeless shelter. We affirm the district court's award of summary judgment for the security company.

In December 1994, Pro-Teck presented PSP with a 32-page assessment of security issues at PSP's facilities, including a list of 47 recommendations for improving security. PSP retained sole discretion whether to implement any of Pro-Teck's security recommendations and was solely responsible for any implementation. PSP implemented some, but not all, of Pro-Teck's recommendations.

Jane Doe alleges that she was raped at approximately 4:00 a.m. on August 3, 1995, in her second-floor room at the 410 Motel where she had been sleeping with her toddler. The rapist allegedly entered her room from the exterior window, which Doe had left open. A ledge topped with one to two feet of barbed wire ran in front of the second floor windows of the 410 Motel, and the rapist apparently crawled on this ledge in order to enter through Doe's window. The rapist was never apprehended, however, and there is no evidence as to how he reached the ledge. He could have climbed onto the ledge from some structures on the outside wall, or he could have accessed the ledge through the window of another second-floor room.

Pro-Teck did not recommend any security measures for the ledge other than removing debris and external structures that could facilitate climbing into windows, and nothing was done to the ledge during the time between the security assessment and the rape. Pro-Teck did not believe that the ledge posed an unreasonable security threat because the ledge (1) was visible from a busy downtown street and was adjacent to a well-controlled, busy parking area; (2) was approximately 12-14 feet above the ground; (3) was located above a smooth, well-lit wall; and (4) was topped by at least one foot of barbed wire. After the rape, PSP installed on the ledge a 10-foot chain-link fence topped with barbed wire to deter future access to windows by anyone climbing the ledge.

Doe initially sued PSP, alleging negligence in failing to protect her from the assault. The district court denied PSP's motion for summary judgment, finding that PSP had an innkeeper/guest relationship with Doe and that PSP therefore had a duty to use reasonable care to protect Doe from the type of injury she suffered. PSP eventually settled with Doe.

After discovering during her PSP lawsuit that Pro-Teck had performed a security assessment for PSP less than a year before the rape, Doe sued Pro-Teck, alleging that its negligent performance of the security assessment proximately caused the rape. Doe's claim of negligence is primarily based on Pro-Teck's failure to recommend additional security precautions for the ledge (such as a higher fence). The district court granted summary judgment for Pro-Teck, finding that Pro-Teck had not undertaken to perform any duty owed by PSP to protect Doe and that the security assessment did not constitute a joint enterprise between PSP and Pro-Teck.

A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff's claim. Id.

Upon a motion for summary judgment * * * the adverse party cannot preserve his right to a trial on the merits merely by referring to unverified and conclusionary allegations in his pleading or by postulating evidence which might be developed at trial * * *.

Rosvall v. Provost, 279 Minn. 119, 124, 155 N.W.2d 900, 904 (1968).

The essential elements of a negligence claim are: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) that breach of the duty was the proximate cause of the injury. Lubbers, 539 N.W.2d at 401.

Duty of Care

Existence of a duty of care is an issue generally determined as a matter of law that we review de novo. H.B. by Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996). Under the traditional common law rule, a person does not have a duty to warn or protect others from harm caused by a third party's conduct. Id. An exception to this general rule arises where the harm is foreseeable and a special relationship exists between the actor and the person seeking protection. Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn. 1989).

Doe argues that Erickson and the Restatement (Second) of Torts § 324A (1965) support a finding that Pro-Teck owed her a duty of care in performing its security assessment:

§ 324A. Liability to Third Person for Negligent Performance of Undertaking

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Doe asserts that Pro-Teck is liable to her under subsection (b) because it undertook to perform the security assessment on behalf of PSP to fulfill the first step in PSP's duty to use reasonable care to protect her.

In Erickson, a parking ramp customer who was assaulted and raped by a third party sued the owner and operator of the ramp and the security firm that had been hired to provide certain security services for the adjoining hotel, including patrolling the parking ramp. Erickson, 447 N.W.2d at 166. The supreme court held that the owner and operator had a duty to use reasonable care to deter criminal activity on its premises that may cause harm to customers. Id. at 169-70. The supreme court also found that the security firm had undertaken the operator's duty to deter criminal activity by agreeing to patrol the ramp and therefore had a duty under the Restatement (Second) of Torts, § 324A(b) to use the degree of care that a reasonably prudent professional security firm would use. Id. at 170-71.

We agree with the district court that Erickson does not control this case because Pro-Teck did not undertake to perform any duty owed by PSP to protect Doe. Pro-Teck's role here was one critical step removed from the ongoing, active role assumed by the security firm in Erickson. Pro-Teck did not agree to undertake PSP's recognized duty to protect residents at the 410 Motel, such as providing security personnel[1] or installing security equipment. It simply functioned as a consultant, reviewing the general security needs of PSP's facilities and providing information to PSP. It maintained no continuing presence at PSP, in contrast to Erickson, and had no duty or authority under the agreement between PSP and Pro-Teck to implement any security measures at the 410 Motel. We decline to extend Erickson to impose potential liability on a consulting firm that played such a limited, advisory role.

Joint Enterprise

The two elements of a joint enterprise are: (1) a mutual undertaking for a common purpose; and (2) a right to some voice in the direction and control of the means used to carry out the common purpose. Murphy v. Keating, 204 Minn. 269, 273, 283 N.W. 389, 392 (1939). We agree with the district court that the security assessment did not constitute a joint enterprise between PSP and Pro-Teck:

PSP's obligation was not to participate in the assessment, but to pay for it, and review it. Then, PSP alone would decide what actions to take, based on the report. As nothing in the record indicates that either PSP or [Pro-Teck] had any further control over the other's actions, the joint enterprise theory does not apply.

3. Conclusion

Because Pro-Teck did not undertake any duty of PSP's to protect Doe by agreeing to perform a security assessment and Pro-Teck is not liable as a participant in a joint enterprise, we conclude that the district court properly granted summary judgment for Pro-Teck.

Although not raised in its brief, at oral argument Pro-Teck requested an award of attorney fees from Doe. We decline to award attorney fees because Pro-Teck has made no showing of bad faith and Doe made at least a colorable claim that Erickson and the theory of joint enterprise liability should apply to this case.

Affirmed.

[1] At the time of the rape, PSP used its own employees to provide security, and hired off-duty police officers and a patrol company to augment security.