J. Michael Dady, Robin M. Spencer, Dady & Garner, P.A., 4000 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

Sylvia Ivey Zinn, Burke J. Ellingson, Brendel & Zinn, Ltd., 46 East 4^th Street, St. Paul, MN 55101 (for respondents)

Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Holtan, Judge.^**

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

Appellant Lori Kainulainen challenges the district court's order for summary judgment for respondents Cathy and Larry Stachovich, the owners of a laundromat in which appellant was sexually assaulted. Appellant claims the district court erred in concluding as a matter of law that respondents had no duty to protect her from the criminal actions of a third party. We affirm.

A plaintiff in a negligence action must prove: (1) the existence of a duty on the part of the defendant; (2) breach of that duty; (3) that the defendant's breach of duty proximately caused the plaintiff's injury; and (4) damages. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).

Generally, a defendant is under no duty to protect another from a third party's actions. Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979). In order to determine whether a duty exists, Minnesota courts determine: (1) if a special relationship exists between the defendant and the third person; and (2) if the harm is foreseeable. Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984). The issue of foreseeability need not be reached when there is no special relationship. Errico v. Southland Corp., 509 N.W.2d 585, 587 (Minn. App. 1993), review denied (Minn. Jan. 27, 1994).

A special relationship may exist in situations where a person has entrusted his or her safety to another and the other has accepted that entrustment. Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168 (Minn. 1989). Minnesota courts have recognized a number of special relationships including innkeeper-guest, common carrier-passenger, and hospital-patient. Id. In Erickson, the supreme court added to that list the relationship between the operator of a parking ramp and its customers. Id. at 169. When determining if a duty exists, the relevant policy considerations include:

the prevention of crime is a governmental function that should not be shifted to the private sector;

imposition of a duty to protect against the unpredictable conduct of criminals does not lend itself easily to an ascertainable standard of care; and

the most effective crime deterrent may be cost prohibitive for both the property owner and customer.

Errico, 509 N.W.2d at 587-88 (citing Erickson, 447 N.W.2d at 168-69). Courts have been "cautious and reluctant to impose a duty to protect" on business enterprises, and a mere merchant-customer relationship does not impose upon a merchant a duty to protect its customers. Erickson, 447 N.W.2d at 168.

Appellant argues that all the factors that led the supreme court in Erickson to recognize a new special relationship are present here. We disagree. Unlike the parking ramp in Erickson, the laundromat here had a large window, was not dimly lit, and did not contain many levels, pillars, stairwells, and rows of unoccupied cars that provide "places in which to hide or lurk." Id. at 169.

Further, we decline appellant's invitation to recognize as special the relationship between an all-night laundromat and its customers. It is not the role of this court to expand the law where the supreme court has specifically recognized: (1) the law is "cautious and reluctant" to impose a duty to protect; and (2) whether a duty to protect is imposed is a question of policy. Id. at 168-69.

The issue of foreseeability need not be reached if there is no special relationship. Errico, 509 N.W.2d at 587. We note, however, that there is no record of previous assaults in this laundromat or evidence that crime had been escalating in the vicinity of the laundromat where appellant was attacked. The neighborhood was largely residential, and appellant testified that she chose to travel farther to use respondents' laundromat because she felt it was "safe." Incidents that do not mirror the normal activity of the area are not foreseeable and therefore cannot impose a duty. Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 158 (Minn. App. 1993), review denied (Minn. July 15, 1993).

Affirmed.