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Bjerke v. Johnson: TORT - special relationship to protect child; no primary assumption of risk; dissent

1
STATE OF MINNESOTA
IN SUPREME COURT
A06-117
Court of Appeals Hanson, J.
Concurring, Hanson, J., and Anderson, Russell A., C.J.
Dissenting, Anderson, G. Barry, Page, and Gildea, JJ.
Aja Bjerke,
Respondent,
vs. Filed: December 27, 2007
Office of Appellate Courts
Suzette E. Johnson,
Appellant,
and
Kenneth D. Bohlman,
Defendant.
S Y L L A B U S
1. A homeowners provision of room, board, and a stable home environment
to a child for an entire summer gave rise to a special relationship that imposed a duty to
protect the child from foreseeable sexual abuse by a resident adult.
2. Genuine issues of material fact preclude the grant of summary judgment on
the issue of whether the sexual abuse was foreseeable.
3. Primary assumption of the risk does not apply to a claim that a homeowner
negligently failed to protect a resident child from sexual abuse by a resident adult.
2
Affirmed.
Heard, considered, and decided by the court en banc.
O P I N I O N
HANSON, Justice.
The issues presented in this appeal are whether a homeowner has a duty to protect
a child invitee from sexual abuse by another adult resident in the home and whether the
child has the legal capacity to assume the risk of that abuse. Between the ages of 14 and
18, respondent, Aja Bjerke, stayed at Island Farm, a horse farm owned by appellant
Suzette E. Johnson, for progressively longer periods. During this time, Bjerke entered
into a sexual relationship with Johnsons adult live-in male friend, Kenneth D. Bohlman.
Bohlman was subsequently convicted of criminal sexual conduct stemming from that
relationship, and Bjerke brings this negligence action, asserting that Johnson failed to
protect her from the sexual abuse.1 The district court granted partial summary judgment
dismissing the negligence claims against Johnson, holding that Johnson had no duty to
protect Bjerke and that Bjerkes assumption of the risk of sexual abuse barred Bjerkes
claims against Johnson. The court certified these issues for immediate appeal. The court
of appeals reversed, and we granted Johnsons petition for review. We affirm the court
of appeals, though on slightly different grounds.
1 Bjerkes other claims against Johnson were not addressed on summary judgment,
and are not at issue in this appeal. Bohlman is also a defendant in this action, but is not a
party to this appeal.
3
Because the issues are presented in the context of a summary judgment motion, we
glean the facts primarily from the affidavits submitted by each party in support of and in
opposition to that motion. But the parties have agreed that, in addition to the exhibits
incorporated in the affidavits, the district court was authorized by the parties to rely on all
of the deposition transcripts that were filed with the court. Accordingly, we will not limit
our description of the facts to those specifically referred to in the affidavits.
Island Farm is a horse farm owned by Johnson, where she resided with her
boyfriend, Bohlman. Johnson often invited children between the ages of 13 and 18 to
visit Island Farm and stay for one or two weeks at a time. During these stays, the
children would take riding lessons and learn about horses. In the spring of 1997, Aja
Bjerke, then age 14, began visiting Island Farm. During her time at the farm, Bjerke took
riding lessons and performed basic farm chores. Bjerke also accompanied Johnson and
Bohlman to horse shows.
Bjerkes first visits to Island Farm were relatively short, but in July 1997 Johnson
asked for and received permission from Bjerkes parents for Bjerke to stay at Island Farm
for two-and-a-half weeks. During the next three school years, Bjerke visited the farm on
a regular basis. Initially, Bjerke spent one or two weekends each month at the farm.
Then she spent the entire summers of 1998 and 1999 at the farm. From September of
1999 through March of 2000, Bjerke spent almost every weekend either at Island Farm or
with Johnson and Bohlman at horse shows. Beginning in the spring of 2000, Bjerke
resided full-time at Island Farm until her departure in October of 2001 at age 18.
4
Johnson admitted that she took some level of responsibility for Bjerke when
Bjerke stayed at Island Farm. Although Johnson believed that Bjerke remained under her
parents control, she expected Bjerke to mind her manners, to tell someone in the house
whenever she would leave, and to follow Johnsons ground rules against swearing,
vulgarity, drinking, and fraternization with boys. Johnson said that she imposed these
rules so that her name and reputation would not be disparaged by the behavior of those
associated with her.
Johnson acknowledged that Bjerkes parents believed that she would keep their
daughter safe from injury. Johnson also had Bjerkes parents sign a release form so that
she could obtain medical care for Bjerke if necessary. Bjerkes mother testified that she
relied on Johnson and Bohlman as responsible adults to provide the care she was unable
to provide while her daughter was away.
No money was paid by the Bjerke family for Bjerkes care, but Johnson indicated
that the money was not an issue for her. Due to what she perceived as Bjerkes difficult
family life at home, Johnson wanted to expose her to a more stable environment at
Island Farm. Johnson later told Bjerkes parents that she treated Bjerke like family.
In April 2002, Bjerke informed law enforcement officials that Bohlman had
sexually abused her for several years at Island Farm. Following an investigation into
Bjerkes allegations, Bohlman was arrested and subsequently convicted of two counts of
first-degree criminal sexual conduct and one count of third-degree criminal sexual
conduct.
5
Bjerke admits that she was not forced to engage in sexual conduct with Bohlman
at any time. She also admits that she never informed Johnson of her relationship with
Bohlman, but instead went to considerable lengths to keep the relationship a secret.
When asked why she hid the relationship, Bjerke stated that it was because she loved
Bohlman and did not want him to get into trouble.
Bjerke brought this action alleging, in part, that Johnson was negligent in failing to
protect her from Bohlmans sexual abuse. Johnson moved for partial summary judgment
to dismiss all negligence claims on the grounds that there was no special relationship
between Bjerke and Johnson, that the sexual abuse was not foreseeable, and that the
defense of assumption of the risk barred Bjerkes claims. The district court granted
Johnsons partial summary judgment dismissing the negligence claims on all three
grounds, but certified the issues for immediate appeal. The court of appeals reversed,
holding that (1) a special relationship had been shown; (2) material fact issues precluded
summary judgment on foreseeability; and (3) the doctrine of assumption of the risk did
not apply. Bjerke v. Johnson, 727 N.W.2d 183, 189-96 (Minn. App. 2007).
On review of a grant of summary judgment, we inquire (1) whether there exists a
genuine issue of material fact; and (2) whether the district court erred in its application of
the law. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). In reviewing the
record for the existence of a genuine issue of material fact, we view the evidence in the
light most favorable to the party against whom summary judgment was granted.
OMalley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996). When the relevant
6
material facts are not in dispute, the district courts interpretation of the law is reviewed
de novo. Leamington Co. v. Nonprofits Ins. Assn, 615 N.W.2d 349, 353 (Minn. 2000).
I.
The basic elements of a negligence claim are: (1) existence of a duty of care;
(2) breach of that duty; (3) proximate causation; and (4) injury. Schmanski v. Church of
St. Casimir of Wells, 243 Minn. 289, 292, 67 N.W.2d 644, 646 (1954). The existence of
a duty of care is the element at issue in this appeal. Generally, we regard the existence of
a duty as a question of law, which we review de novo. H.B. ex rel. Clark v. Whittemore,
552 N.W.2d 705, 707 (Minn. 1996).
Bjerke does not assert that Johnson negligently caused the sexual abuse, but that
Johnson failed to protect Bjerke from such abuse. As a result, special considerations
come into play. Generally, no duty is imposed on an individual to protect another from
harm, even when she realizes or should realize that action on [her] part is necessary for
anothers aid or protection. Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1980). A
duty to protect will be found, however, if (1) there is a special relationship between the
parties; and (2) the risk is foreseeable. Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-
69 (Minn. 1989).
A. Special Relationship
The first prerequisite to a finding of a duty to protect another from harm is the
existence of a special relationship between the parties. A special relationship can be
found to exist under any one of three distinct scenarios. The first arises from the status of
the parties, such as parents and children, masters and servants, possessors of land and
7
licensees, [and] common carriers and their customers. Delgado, 289 N.W.2d at 483-84;
Restatement (Second) of Torts 314A, 315 (1965). The second arises when an
individual, whether voluntarily or as required by law, has custody of another person
under circumstances in which that other person is deprived of normal opportunities of
self-protection. Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993); Restatement
(Second) of Torts 314A (1965). The third arises when an individual assumes
responsibility for a duty that is owed by another individual to a third party. For example,
one has a duty to act when he 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, and liability will be imposed if (1) his failure to act increases the
risk of harm; (2) he undertook a duty owed by the other to the third party; or (3) the harm
is suffered because the other or the third person relied on the undertaking. Walsh v.
Pagra Air Taxi, Inc., 282 N.W.2d 567, 571 (Minn. 1979); Restatement (Second) of Torts
324A (1965). Under the facts presented here, we need consider only the second and
third types of special relationships.
As to the second type of special relationship, Bjerke argues that Johnson took
custody of her under circumstances in which Bjerkes normal means of self-protection
were unavailable. Although Johnson was never given legal custody of Bjerke, there is
evidence to show that Johnson accepted entrustment of some level of care for Bjerke
8
when Bjerke stayed at Johnsons home, at a location distant from her parents home.2
Johnson provided Bjerke with room and board and adopted rules for Bjerkes conduct.
Johnson had a large degree of control over Bjerkes welfare, strongly indicating that there
was a special relationship between the two. See Becker v. Mayo Found., 737 N.W.2d
200, 213 (Minn. 2007) (finding no special relationship between hospital and child
because hospital did not exercise control over [the childs] daily welfare); Harper, 499
N.W.2d at 474 n.2 (noting that a typical circumstance in which a duty exists is when the
defendant holds considerable power over the plaintiffs welfare).
There is evidence that Johnsons control over Bjerke increased over time with the
increase in the length and frequency of Bjerkes stays at the farm. For purposes of
summary judgment, it is enough that we can determine, as a matter of law, that Johnsons
custody began at least as early as 1998, when Bjerke resided for the full summer at the
farm.
We also conclude as a matter of law that, at least during the times that Bjerke
resided full-time at the farm during and after the summer of 1998, Bjerke lacked normal
opportunities for self-protection because she was a minor child, living apart from her
parents and under the daily care and supervision of Johnson.
We recognize that children are largely dependent on parents or other custodial
guardians for protection, and that such dependence is often the basis for a duty to protect.
See H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 708 (Minn. 1996) (noting that
2 See The Random House Dictionary of the English Language 494 (2d ed. 1987)
(defining custody as keeping; guardianship; care) (emphasis added).
9
duties to protect typically involve some degree of dependence). The natural
dependence which Bjerke would have had upon Johnson increased as her stays at the
farm became progressively longer. By the summer of 1998, Bjerke was a long-term
resident at Island Farm and was consistently away from her family. Although a child
who visited Island Farm only sporadically might have been better able to rely on her
parents for protection, Bjerke was largely separated from the protection and support that
her parents might have otherwise provided. For example, a parent whose child lives with
her on a regular basis is more able to observe various changes in that childs behavior that
could signal a negative influence on the childs welfare.
The court of appeals concluded that no special relationship existed under
Restatement 314A because Bjerke was not unable to summon help by virtue of the
custody agreement. Bjerke, 727 N.W.2d at 189-90. The court went on to conclude that
Bjerke had the same opportunities for self-protection under Johnsons custody as she did
under her parents custody. Id. at 190. But, as we noted above, the circumstances of
Bjerkes residence at Island Farm substantially deprived her of a childs primary source
of protectionher parents. Although Bjerke was not absolutely deprived of the
opportunity to rely on her parents for aidshe could have telephoned them from Island
Farm or confided in them when she visited homethe Restatement does not require that
all opportunities for self-help be lost. The Restatement only requires that Bjerke have
been deprived of normal opportunities for protection, not that she have completely lacked
any means of protection. Only the most extreme of circumstances would absolutely
10
deprive an individual of her ability to protect herself, and we do not believe that
Restatement 314A is so unduly restrictive in its scope.
Johnson argues that our decision in H.B. forecloses the existence of a special
relationship under Restatement 314A. In H.B., we determined that the manager of a
trailer park was not negligent for her failure to report the sexual abuse of a number of
children by a park resident. 552 N.W.2d at 706. We based our decision on two key facts.
First, we observed that there was no acceptance by [the manager] of the childrens
entrustment; indeed it was specifically rejected when [she] instructed the children to tell
their parents about [the] abuse. Id. at 708-09. Second, we noted that the children were
not in [the managers] custody [and] she exercised no control over their daily welfare.
Id. at 709.
In contrast, Johnson took Bjerke into her home as a long-term resident, providing
her with a place to live away from her family. Additionally, Johnson never disclaimed
any responsibility for Bjerketo the contrary, Johnson made it clear that one of her
motivations for bringing Bjerke to stay at Island Farm was to provide her with a more
stable environment than could be found in Bjerkes home. Thus, the factors found
dispositive in H.B. suggest that a special relationship existed between Johnson and
Bjerke.
We must also note that H.B. provides little support for the argument that Bjerke
had the normal opportunities for self-protection. In H.B., the children resided with their
11
parents, to whom they eventually reported their sexual abuse. 552 N.W.2d at 706-07.3
Though Bjerke was older than the children in H.B. at the time she was sexually abused,
she lived away from her parents for substantial periods of time in which she was abused.
Also, it is notable that the abuse in H.B. was perpetrated by an outsider, not a member of
the same household. When the perpetrator of sexual abuse resides inside of the victims
home, the child is likely faced with more pressure not to report her abuse. The child is
subject to the ongoing influence of the person who abused her, and her ability to stay in
the home could be jeopardized if she reported the abuse. None of these special
considerations were implicated in H.B.
Because Johnson had custody over Bjerke and Bjerke, who, both by virtue of her
age and her specific circumstances, lacked normal opportunities for self-protection, we
conclude as a matter of law that a special relationship existed from and after the summer
of 1998. The decision to the contrary by the district court and the court of appeals is
reversed.4
3 Although we briefly touched upon the opportunities for self-protection present in
H.B., we had already determined that no custodial relationship existed between the
children and the park manager, making any further analysis regarding the managers duty
mere dicta. See 552 N.W.2d at 708-09.
4 Although we have generally stated that the existence of a duty is a question of law,
this would not foreclose the possibility that there may be situations in which the facts
necessary to establish a special relationship are in dispute and should be submitted to the
jury. For example, if it were relevant or necessary at trial for Bjerke to establish that a
special relationship existed prior to the summer of 1998, our conclusion that a special
relationship existed as a matter of law by the summer of 1998 would not preclude the
argument that there may be genuine issues of material fact concerning the earlier
(Footnote continued on next page.)
12
Although we agree with Bjerke that a duty has been shown, we hasten to add that
this does not mean that Johnson committed any wrongdoing by taking Bjerke into her
custody. Johnsons assumption of the care and custody of Bjerke was generous and
admirable. We only conclude that the assumption, however well-meaning, brought with
it legal obligations that Johnson would not have otherwise had, obligations sufficient to
prevent summary judgment on the issue of a special relationship.
Having determined that the second type of special relationship, as described in
Restatement 314A, has been shown to exist, it is not clear that we need to address the
third type of special relationship as described in Restatement 324A and adopted in
Pagra, 282 N.W.2d 567. Although this is the section upon which the court of appeals
based its decision that a special relationship existed, we do not have a majority of this
court in favor of addressing Restatement 324A, and thus we will make no holding
concerning it.
B. Foreseeability
Even where a special relationship exists, a duty is only imposed if the resulting
injury was foreseeable. It is not necessary that a defendant have notice of the exact
method in which injury will occur if the possibility of an accident was clear to the
person of ordinary prudence. Connolly v. Nicollet Hotel, 254 Minn. 373, 381-82, 95
N.W.2d 657, 664 (1959). When it is clear whether an incident was foreseeable, the
(Footnote continued from previous page.)
existence of the special relationship that would warrant submission of that issue to the
jury.
13
courts decide the issue as a matter of law, but in close cases, foreseeability is reserved for
the jury. Whiteford ex rel. Whiteford v. Yamaha Motor Corp., 582 N.W.2d 916, 918
(Minn. 1998).
Viewing the evidence in the light most favorable to Bjerke, we conclude that
summary judgment was inappropriate on the issue of foreseeability. This is because
questions of material fact exist as to the foreseeability of any sexual abuse that occurred
between early 1997, when Aja Bjerke first began staying at Island Farm, and October of
2001, when Bjerke left the farm for the last time.
The evidence shows that Johnson, as well as many of her friends and associates,
observed unusual and intimate behavior between Bohlman and Bjerke over this entire
period. Johnson observed inappropriate behavior between Bohlman and Bjerke as early
as the summer of 1997. Johnson saw Bohlman sitting with his back up against a couch,
while Bjerke sat on the couch and ran her fingers through his hair for 10 to 15 minutes.
Johnson subsequently confronted Bohlman to inform him that she did not find such
conduct appropriate. Johnson believed this conduct to be the kind of conduct a
girlfriend would have exhibited as opposed to a daughter and admitted that it may have
had sexual overtones. When Johnson later mentioned this incident to a friend who was a
county child protection worker, her friend agreed that it was inappropriate for a
fourteen-year-old girl to interact with a man * * * in his fifties that way. Following her
conversation, Johnson felt that she should keep [her] eyes open.
Johnson observed other unusual behavior between Bohlman and Bjerke. In
general, she saw that Bohlman and Bjerke had a space issue when they were together.
14
Also, in April of 2000, while at a 4-H judges clinic, Johnson saw Bjerke come around
her and jump into Bohlmans lap as he was sitting next to Johnson. Johnson and a
woman seated nearby both believed this behavior to be very odd. This conduct would
have occurred around Bjerkes seventeenth birthday.
A friend of Johnsons testified that Johnson later saw other instances of
inappropriate behavior between Bohlman and Bjerke. He stated that, in the early winter
or spring of 2000, Johnson came to his home and said that she had to get out of the
house because it was getting too sexual between [Bohlman and Bjerke], it * * * wasnt a
father-daughter thing, it was getting too sexual so she had to leave. Sometime after this
incident, this friend observed Bjerke rubbing Bohlmans leg in the kitchen, in full view of
Johnson who was sitting in the dining room.
Several other friends and acquaintances of Johnson observed the interaction
between Bohlman and Bjerke and suspected that something was unusual about their
relationship. One stated that Bohlman and Bjerke were quite open about a lot of their
emotions. Bjerkes mother was concerned that her daughters relationship with
Bohlman was inappropriate. That concern was also reinforced by the observations of
Johnsons friends of the interaction between Bohlman and Bjerke.
After the August 2000 funeral of Johnsons father, another friend saw Bjerke and
Bohlman acting in a way that she considered to be too intimate and that made her
uncomfortable. She also saw Bohlman and Bjerke engage in flirtation many times.
She stated that most of the individuals she spoke to had observed things regarding the
15
Bjerke-Bohlman relationship. Aside from these specific observations, it also appears that
rumors generally were circulating regarding Bjerke and Bohlman.
It is particularly notable that even those who spent less time with Bohlman or
Bjerke than Johnson had suspicions about the nature of their relationship. If those who
spent little time at Island Farm saw enough unusual behavior to give them cause for
concern, it would be reasonable to infer that Johnson, who lived full-time at Island Farm,
came to the same conclusions herself. This conclusion is further bolstered by the fact that
Bohlmans abuse of Bjerke was not a short-term, isolated incident, but continued
uninterrupted for nearly four years.
Because there was a special relationship between Johnson and Bjerke and the
evidence presents genuine issues of material fact on foreseeability, summary judgment
for Johnson on the issue of duty was erroneous and is reversed.
II.
We turn next to Johnsons argument that, even if she was under a duty to protect
Bjerke, Bjerke assumed the risk of her sexual abuse. Johnson bases this argument on
Bjerkes admission that she was never forced to have sex with Bohlman and that she took
affirmative steps to conceal their sexual relationship.
Two varieties of assumption of the risk are recognized in this state, each with its
own effect on a defendants liability. The variety at issue in this appeal is termed
[p]rimary assumption of [the] risk, and arises only where parties have voluntarily
entered a relationship in which plaintiff assumes well-known, incidental risks. Olson v.
16
Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974). Primary assumption of the risk
completely negates a defendants negligence. Id., 216 N.W.2d at 127.5
We have previously allowed primary assumption of the risk as a defense to some
actions involving minors. See Greaves v. Galchutt, 289 Minn. 335, 184 N.W.2d 26
(1971) (barring recovery in accidental shooting death of 11-year-old child). On the other
hand, the consent of a minor has been firmly rejected as a defense to a criminal
prosecution for the sexual abuse of a child. See Minn. Stat. 609.342, subd. 1 (2006);
Minn. Stat. 609.343, subd. 1 (2006); Minn. Stat. 609.344, subd. 1 (2006) (stating that
consent to the act by the complainant shall [not] be a defense to criminal sexual
conduct involving a minor). Whether consent can form the basis of an affirmative
defense of assumption of the risk in a civil suit concerning the sexual abuse of a child,
however, is an issue of first impression in this state.6
5 The second variety is termed secondary assumption of [the] risk, and arises
when the plaintiff has made a voluntary choice to encounter a known and appreciated
danger created by the negligence of the defendant. Olson, 299 Minn. at 45, 216 N.W.2d
at 128. Secondary assumption of the risk does not automatically bar a plaintiffs
recovery, but is treated as a form of contributory negligence decreasing the plaintiffs
damages under Minn. Stat. 604.01, subd. 1 (2006). Springrose v. Willmore, 292 Minn.
23, 24-25, 192 N.W.2d 826, 827 (1971). Given that secondary assumption of the risk is
not an absolute defense, but only acts to decrease the plaintiffs recovery, the
applicability of that doctrine is not properly before us on appeal from a grant of summary
judgment, and we express no opinion as to how this issue should be resolved at trial.
6 Although this issue is one of first impression in Minnesota, it has been addressed
in many other jurisdictions over the past century. A number of courts have concluded
that the consent of a minor is irrelevant and that assumption of the risk is inapplicable to
a claim of sexual abuse. See Bohrer v. DeHart, 943 P.2d 1220, 1227 (Colo. Ct. App.
1996) (consent no defense in civil actions); Wilson v. Tobiassen, 777 P.2d 1379, 1384
(Or. Ct. App. 1989) (criminal bar on consent defense applicable in civil actions);
(Footnote continued on next page.)
17
Minnesota has expressed a particularly strong interest in protecting children from
sexual abuse. This interest is best reflected in our criminal laws, which render consent
irrelevant in criminal prosecutions for the sexual abuse of a child. See, e.g., Minn. Stat.
609.342, subd. 1. We have characterized this law as reflecting the feeling of society in
general that sexual contact by adults with children * * * is reprehensible whether or not
the child consents, because at that age, the child should be deemed incapable of giving
consent. State v. Steinbrink, 297 N.W.2d 291, 293 (Minn. 1980). The Utah Supreme
Court has similarly observed that child sexual abuse is so contrary to commonly
accepted standards of decency and morality that any consensual agreement to engage in
such conduct would be rejected by the law as against public policy and void. Elkington
v. Foust, 618 P.2d 37, 40 (Utah 1980).
(Footnote continued from previous page.)
Robinson v. Moore, 408 S.W.2d 582, 583 (Tex. Civ. App. 1966) (consent no defense in
civil action); Elkington v. Foust, 618 P.2d 37, 40 (Utah 1980) (same); Christensen v.
Royal Sch. Dist. No. 160, 124 P.3d 283, 286-87 (Wash. 2005) (noting that normal
contributory fault principles are not germane to sexual abuse cases). But a number of
courts have reached the contrary conclusion. See Beul v. ASSE Intl, Inc., 233 F.3d 441,
450-51 (7th Cir. 2000) (consent of minor relevant for purpose of comparative fault);
Harvey Freeman & Sons, Inc. v. Stanley, 378 S.E.2d 857, 859 (Ga. 1989) (assumption of
risk valid consideration in sexual abuse suit by 14-year-old girls against building
manager); L.K. v. Reed, 631 So.2d 604, 608 (La. Ct. App. 1994) (minor girls consent to
sex relevant for purpose of comparative fault); Tate v. Bd. of Educ., Prince Georges
County, 843 A.2d 890, 901 (Md. Ct. Spec. App. 2004) (teenage girl assumed risk of
sexual abuse by uncle); Braun v. Heidrich, 241 N.W. 599, 601 (N.D. 1932) (minor girl
violated state fornication law, thus barring claim for damages); Barton v. Bee Line, Inc.,
265 N.Y.S. 284, 285 (N.Y. App. Div. 1933) (society adequately protected by criminal
statute, rendering damage award for consensual act unnecessary); Parsons v. Parker, 170
S.E. 1, 3 (Va. 1933) (consent of minor relevant as mitigation of punishment). In Doe ex
rel. Roe v. Orangeburg County Sch. Dist. No. 2, the South Carolina court held that
consent was irrelevant to liability but may be relevant to damages. 518 S.E.2d 259, 261
(S.C. 1999).
18
Beyond the strong public interest in protecting children from sexual abuse, it
seems to us unlikely that children can be expected to comprehend the multitude of longterm
effects of sexual abuse by an adult. Aside from the immediate dangers, a victim of
sexual abuse faces the risk of depression and other psychosocial disorders, promiscuity,
and revictimization as well as guilt, shame, phobias, and eating disorders. Michelle
Oberman, Regulating Consensual Sex With Minors: Defining A Role For Statutory Rape,
48 Buff. L. Rev. 703, 728-29 (2000). Such abuse can lead to lower self-esteem, higher
rates of emotional distress, and considerably elevated rates of suicide and self-harm. Id.
at 729. Because a plaintiffs ability to appreciate the danger arising from her behavior is
a key component of assumption of the risk, Knutson v. Arrigoni Bros. Co., 275 Minn.
408, 413-14, 147 N.W.2d 561, 566 (1966), we find it difficult to conclude that children
could meaningfully assume the risks of sexual assault.7
Although it might be argued that the facts in this case go beyond mere consent,
given Bjerkes admission that she took efforts to conceal her relationship with Bohlman,
we are not convinced that this is a meaningful distinction. As we noted above, a number
of pressures are placed on a child to consent to the sexual abuse of an adult. To presume
that such pressures begin and end simply with the childs consent would be to ignore the
7 Studies have further shown that as the age difference between the young woman
and her partner increased, the * * * degree to which she wanted to participate in the
sexual act decreased. This finding indicates the likelihood of a greater power differential
* * * and that the episode may not have been voluntary. Gary Harper, Contextual
Factors That Perpetuate Statutory Rape: The Influence of Gender Roles, Sexual
Socialization and Sociocultural Factors, 50 DePaul L. Rev. 897, 912-13 (2001)
(footnotes omitted).
19
disparity of power that typifies the relationship between the abuser and his victim. The
pressures brought by the adult to procure the childs participation in sexual activity can
be the same pressures that procure the childs silence. Given the impossibility of
separating the pressures that give rise to a victims consent from those that lead the
victim to conceal her abuse, we do not believe that even active concealment by a minor
victim of sexual abuse is sufficient to establish the defense of primary assumption of the
risk.
Some courts have expressed concern that prohibiting evidence of consent
allow[s] a victim to * * * tell a one-sided version of events, without being subject to any
real cross-examination or impeachment as to the damages actually suffered. Doe ex rel.
Roe v. Orangeburg County Sch. Dist. No. 2, 518 S.E.2d 259, 261 (S.C. 1999). Our
disposition today does not implicate this concern for three reasons. First, given the
procedural posture of this case, we address only primary assumption of the riskan
absolute defense to liabilityand do not consider whether the plaintiffs claims might be
considered under the doctrine of secondary assumption of the risk. Second, we express
no opinion on the extent to which a child victims actions can be considered by the jury
in analyzing a defendants negligence. Third, we similarly express no opinion on the
relevance of evidence of the childs conduct on issues of damages.
20
We hold that the defense of primary assumption of the risk is unavailable as a
matter of law in cases concerning the sexual abuse of a child. Accordingly, we affirm the
court of appeals decision to reverse the grant of partial summary judgment and we
remand to the district court for further proceedings.
Affirmed.
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C O N C U R R E N C E
HANSON, Justice (concurring).
I write separately because I would conclude that the third type of special
relationship, as described in Restatement (Second) of Torts 324A (1965), should be
addressed. The district court ruled that this type of special relationship could not be
shown and that ruling might become material in the trial. Further, I would conclude that
the third type of special relationship has been shown under the facts presented.
Under Restatement 324A and our decision in Walsh v. Pagra Air Taxi, Inc., the
third type of special relationship would exist if it is shown that Johnson (1) undertook,
whether gratuitously or for consideration, to render services to Bjerkes parents (2) which
Johnson should have recognized as being necessary for Bjerkes protection. See 282
N.W.2d 567, 571 (Minn. 1979).
As to the first element, I would conclude as a matter of law that, at least as early as
the summer of 1998, Johnson gratuitously undertook to provide a large portion of the
services that Bjerkes parents were otherwise obligated to provide to Bjerke. Because
Bjerke was an unemancipated minor at the time Johnson brought her into her home, the
provision of Bjerkes basic necessities was the responsibility of Bjerkes parents. By
providing Bjerke with such necessities, Johnson effectively rendered a service to Bjerkes
parents, similar in kind to those provided by a baby-sitter, though Johnsons services
were much greater in scope. Given that even a baby-sitter is expected to provide some
basic services to the child in her carefood, supervision, and protection from harma
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homeowner who brings a minor child to live in her household long-term would naturally
be expected, at very least, to provide such basic services as well.
Johnson argues that an undertaking exists only when there is an explicit
agreement between the person providing the service and the individual to whom that
service is provided. She argues that no explicit agreement was ever reached between
herself and Bjerkes parents for Johnson to provide services to Bjerke on behalf of
Bjerkes parents. Such an interpretation of Restatement 324A has been rejected in our
prior cases, has not been adopted in the decisions of any other jurisdiction, and is not
supported by public policy considerations.
Of course, the Restatement is a generalized summary of American common law
and not a pronouncement of our legislature. Thus, we are not bound by rules of statutory
construction and may use the Restatement for guidance in informing our own view of the
common law in Minnesota. But even if one were to read section 324A of the
Restatement like a statute and focus on the intended meaning of the word undertaking,
that term is not as limited as Johnson suggests. Dictionary definitions suggest two
alternatives, defining undertake as either to take upon oneself, as a task, performance,
etc.; attempt or to promise, agree, or obligate oneself. The Random House Dictionary
of the English Language 2064 (2d ed. 1987). In other words, although a promise may be
sufficient to establish an undertaking, it is not necessary for an undertaking to occur. In
common usage, one can be said to have undertaken a task at the moment she begins that
task, regardless of whether a promise to begin that task might also be involved.
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This distinction actually played a determinative role in our decision on special
relationships in Erickson v. Curtis Inv. Co., 447 N.W.2d 165 (Minn. 1989). In that case,
the defendant security company argued that it had no duty, under Restatement 324A, to
protect the plaintiff from harm in a parking garage because the plaintiff was not a
customer of the hotel with which the defendant had contracted, but only a patron of the
parking garage that the defendant patrolled pursuant to a contract with the hotel. Id. at
170. We rejected the defendants argument and held that the security companys actions
constituted an undertaking to perform the duty of the parking garage operator to protect
its customers. Id. If a contract or other explicit agreement were necessary to establish a
special relationship, the result reached in Erickson would not have been possible, given
the lack of any explicit agreement between the security company and the parking garage
operator.
A review of the case law under Restatement 324A, and the similar provisions of
Restatement (Second) of Torts 323 (1965), fails to reveal a single case that has made
the existence of an explicit promise necessary in order to establish an undertaking under
either section. Of course, a number of those cases present the situation in which some
form of contract or agreement to act for the benefit of another was present. We found the
existence of such a contract when we imposed a duty on the defendants in Pagra, for
instance. See 282 N.W.2d at 570 (imposing liability under Restatement 324A because,
[b]y the terms of its operating agreement with the city, Pagra agreed to undertake the
fire-protection duty assumed by the city).
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Naturally, a contract will provide compelling evidence that one party has
undertaken some kind of responsibility for another. But that does not mean that a
contract or express agreement is necessary when the undertaking has been shown by the
partys conduct. See, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955)
([O]nce [the Coast Guard] exercised its discretion to [provide a lighthouse service] and
engendered reliance on the guidance afforded by the light, it was obligated to use due
care to make certain that the light was kept in good working order.); Erickson, 447
N.W.2d at 170 (rejecting defendants argument that it could not be held liable because
plaintiff was not customer of party with whom defendant had contracted); Williams v.
State, 664 P.2d 137, 141 (Cal. 1983) (concluding that a promise and reliance thereon are
[not] indispensable elements of a special relationship); Smith v. Allendale Mut. Ins. Co.,
303 N.W.2d 702, 718-19, n.49 (Mich. 1981) (determining that an undertaking may arise
either from defendants explicit promise or from defendants representations).1
Further, to adopt Johnsons interpretation would effectively blur the distinction
between contract and tort law. If an express promise were required on behalf of both
parties every time a duty was to be imposed, it would be all but impossible to show a
duty to protect under section 324A without proving the existence of a contract. As the
Michigan Supreme Court has observed, however, there are important distinctions
between the interests served by contract law and tort law, respectively:
1 The proposed final draft of the Restatement (Third) of Torts: Liability for Physical
Harm, 43 cmt. h (Proposed Final Draft No. 1, 2005), specifies that, The duty imposed
by this section is independent of any contractual obligations.
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Although in analyzing what constitutes an undertaking under
324A, we use terms with contract law overtones, such as agreed or
intended to benefit another, it should be emphasized that we are
determining when an undertaking will give rise to tort liability, not
contractual liability. We deal with the question of when a partys conduct
furnishes a proper basis for the law to impose tort liability, not with the
question of when a partys conduct can properly be considered as creating a
contract implied in fact.
In an action to recover damages for breach of a contract a court is
concerned primarily with determining the expectations of the parties and
whether those expectations were reasonable. In imposing tort liability,
however, a court is only concerned with whether it is appropriate public
policy to impose liability for particular conduct; it does not usually consider
whether the parties involved believed liability to exist. * * *
Although considerations appropriate in a contractual context may
also be relevant in the tort context, differences in the relevant public
policies, extent of liability, the nature of the relationships and the
expectations of the persons involved, suggest that the question of what
conduct amounts to an undertaking for the negligent performance of which
the law will impose tort liability should not be confined by principles of
contract law.
Allendale, 303 N.W.2d at 711 n.24.
This general refusal to restrict tort liability by contractual notions is further
illustrated by well-known tort principlesno agreement is required before an individual
will be held liable for attempting and negligently failing to provide assistance to another,
as the actual conduct of the actor is all that is relevant. See, e.g., Slater v. Ill. Cent. R.R.
Co., 209 F. 480, 483 (M.D. Tenn. 1911) (finding railroad liable in negligence when it
assume[d] control of the injured person over his protest and with knowledge of the
imminent peril due to his condition); Farwell v. Keaton, 240 N.W.2d 217, 220 (Mich.
1976) (Without regard to whether there is a general duty to aid a person in distress, there
is a clearly recognized legal duty of every person to avoid any affirmative acts which
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may make a situation worse.); Dunham v. Village of Canisteo, 104 N.E.2d 872, 875
(N.Y. 1952) (defendants, having assumed charge of the deceased * * * were under an
obligation to exercise ordinary care). As Judge Benjamin Cardozo once stated, It is
ancient learning that one who assumes to act, even though gratuitously, may thereby
become subject to the duty of acting carefully, if he acts at all. Glanzer v. Shephard,
135 N.E. 275, 276 (N.Y. 1922).
Also, it would not serve public policy to make the responsibility of an adult for the
welfare of a child turn solely upon the existence of an agreement between that childs
caregiver and her parents. Because the duty to protect would then only exist in the
specific circumstances covered by the parties agreement, any circumstances beyond the
scope of the agreement would presumably remain within the general duties of the parents,
even though they were not in a position to perform those duties. As a result, there would
be a dead zone in which the custodian, who was in the best position to care for the
child, would have no duty to do so, while the parents, who were too distant to actually
care for the day-to-day needs of the child, would retain the duty to do so.
Moreover, the ultimate dispute here is not between Johnson and Bjerkes parents,
but between Johnson and Bjerke. To make the parties agreement determinative would
be to ignore the expectations of the child herself and make the imposition of a duty turn
on the wishes of potentially irresponsible parents and their chosen caregivers. It is Bjerke
who has brought this action and it is her relationship to Johnson that is determinative.
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Finally, it should be noted that the duties of the caretaker and the parents need not
be mutually exclusive, but can be shared and overlap.2 As legal custodians and
guardians, the parents have duties that remain their ultimate responsibility, even if those
duties are temporarily shared with or delegated to another. That is not to say, however,
that a caregiver cannot become responsible for some parental duties by undertaking to
perform them, even though the parents retain concurrent responsibility. For example, it is
settled law that parents have a duty to protect their children, and that common carriers
have a duty to protect their patrons. See Delgado v. Lohmar, 289 N.W.2d 479, 483-84
(Minn. 1979). When a parent and her child board a cruise liner, though, few would say
that either the duty of the parent or that of the operator of the ship has been negated.
If Johnson undertook to render a service to Bjerkes parents when she brought
Bjerke into her home for the summer of 1998, the question becomes whether (1) her
failure to act increased the risk of harm; (2) she undertook a duty owed to Bjerke by her
parents; or (3) the harm to Bjerke was suffered because Bjerkes parents relied on
Johnsons performance of the undertaking. See Pagra, 282 N.W.2d at 571. As to the
second prong, I would conclude that Johnson undertook a number of the duties normally
owed by parents to their children. Johnson undertook to provide Bjerke with room and
board, as well as a level of guidance that she felt was lacking in Bjerkes own home. It is
hard to dispute that these are all things which any parent has a duty to provide to her
2 The proposed final draft of Restatement (Third) of Torts: Liability for Physical
Harm, 43 cmt. g, illus. 2 (Proposed Final Draft No. 1, 2005), indicates that, The actor
who engages in an undertaking need not completely displace the person originally owing
the duty.
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child. In the alternative, under the third prong, I would also conclude that the harm was
suffered in some part because Bjerkes parents relied upon Johnson to look after their
daughter. Bjerkes mother herself stated that she relied on Johnson as a responsible adult
to care for Bjerke during her stays at Island Farm, and nothing in the record would
indicate that Bjerkes parents would have allowed her to remain at Island Farm if they
believed that Johnson was not protecting their daughter from sexual abuse.
Accordingly, I would conclude as a matter of law that the elements necessary to
show the existence of a special relationship under Restatement 324A have been met by
Johnsons provision of services to Bjerkes parents, at least as early as the summer of
1998.
ANDERSON, Russell A., Chief Justice (concurring).
I join in the concurrence of Justice Hanson.
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D I S S E N T
ANDERSON, G. Barry, Justice (dissenting).
I respectfully dissent. The majority holds that Johnsons provision of room, board,
and a stable home environment to Bjerke for an entire summer gave rise to a special
relationship that imposed on Johnson the duty to protect Bjerke from Bohlmans sexual
abuse. Notwithstanding the disturbing events that underlie this litigation, I conclude that
a special relationship did not exist between Johnson and Bjerke and that Johnson thus had
no duty to protect Bjerke from Bohlman. I would therefore reverse the decision of the
court of appeals and reinstate the district courts order of partial summary judgment.
We have previously recognized the general common law rule that a person does
not have a duty to give aid or protection to another or to warn or protect others from harm
caused by a third partys conduct. H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705,
707 (Minn. 1996); see also Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979);
Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 804 (Minn. 1979) (citing
Restatement (Second) of Torts 315 (1965)). But [a]n exception to this general rule
arises where the harm is foreseeable and a special relationship exists between the actor
and the person seeking protection. H.B., 552 N.W.2d at 707; see also Erickson v. Curtis
Inv. Co., 447 N.W.2d 165, 168 (Minn. 1989); Delgado, 289 N.W.2d at 483; Cracraft,
279 N.W.2d at 804 (citing Restatement (Second) of Torts 315). I do not agree with
either the majoritys interpretation of the Restatement or the majoritys characterization
of the record.
D-2
I.
We have held that a special relationship giving rise to a duty to protect exists
where a person has custody of another person under circumstances in which that other
person is deprived of normal opportunities of self-protection. Harper v. Herman, 499
N.W.2d 472, 474 (Minn. 1993) (citing Restatement (Second) of Torts 314A) (1965).1
The majority concludes that Johnsons duty to protect Bjerke arose under Harper and
section 314A because Johnson accepted entrustment of some level of care for Bjerke
which deprived Bjerke of her parents protection. I agree with the conclusion of the court
of appeals that a special relationship did not exist between Johnson and Bjerke under
section 314A because the custodial arrangement did not deprive Bjerke of normal
opportunities of self-protection. Bjerke v. Johnson, 727 N.W.2d 183, 189 (Minn. App.
2007).
In H.B., four girls between the ages of four and seven who lived at a trailer park
informed the park manager that another resident had molested them. 552 N.W.2d at 707.
1 Restatement (Second) of Torts 314A provides:
(1) A common carrier is under a duty to its passengers to take reasonable
action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they
are ill or injured, and to care for them until they can be cared for by
others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar
duty to members of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the
custody of another under circumstances such as to deprive the other of his
normal opportunities for protection is under a similar duty to the other.
D-3
The manager instructed the girls to tell their parents, but the abuse continued for
approximately three weeks before the children did so. Id. We held that no special
relationship existed because the manager did not have custody of the children, id. at 708-
09, and we noted that the dissents assertion that the children were unable to protect
themselves is questionable at best, for it is undisputed that some three weeks later they
did indeed protect themselves by * * * report[ing] the abuse to their parents, id. at 709.
If young girls between the ages of four and seven are capable of self-protection for
purposes of section 314A, then a teenager such as Bjerke is also capable of selfprotection.
The majority attempts to distinguish H.B. on the basis that whereas the
victims in that case resided with their parents and were sexually abused by an outsider,
Bjerke resided apart from her parents when much of the abuse occurred and the abuse
was perpetrated by a member of her de facto household. But Bjerkes living arrangement
does not negate the fact that she, as a teenager, had a greater capacity for self-protection
than did the young children in H.B. Bjerke could have protected herself by disclosing her
relationship with Bohlman to any number of peoplenot only her parents, but also
teachers, counselors, or even Johnson. Additionally, just as the victims in H.B. availed
themselves of protection by informing their parents of the abuse, Bjerke ultimately
informed her parents of Bohlmans abuse as well.2
2 The majority notes that a parent whose child lives with her on a regular basis is
more able to observe various changes in that childs behavior that could signal a negative
influence on the childs welfare. For purposes of section 314A, however, we are only
concerned with the availability of normal opportunities of self-protection, not whether a
childs circumstances are conducive to being protected by another.
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As we stated in H.B., requiring [the park manager] to take protective measures on
[the victims] behalf is emotionally appealing, but is based on a factual as well as a legal
misapprehension of the circumstances here. Id. Because Bjerke was not deprived of
normal opportunities of self-protection, I would hold that a special relationship did not
exist between Johnson and Bjerke under section 314A.3
II.
We recognized in Walsh v. Pagra Air Taxi, Inc., 282 N.W.2d 567, 570-71 (Minn.
1979), that a duty to protect may also arise under Restatement (Second) of Torts 324A
(1965), which provides:
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 [perform]4 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.
3 The imposition of section 314A liability in this case is further complicated because
the abuse was occurring prior to Bjerkes residence at Island Farm.
4 Although we did not note the error in Pagra, [t]he reporter for this edition of the
Restatement * * * has verified that the word protect which appears at this point is a
typographical error and should read perform. Hill v. U.S. Fid. & Guar. Co., 428 F.2d
112, 115 n.5 (5th Cir. 1970); see also Artiglio v. Corning Inc., 957 P.2d 1313, 1317 n.4
(Cal. 1998); Smith v. Allendale Mut. Ins. Co., 303 N.W.2d 702, 706 n.4 (Mich. 1981);
Miller v. Bristol-Myers Co., 485 N.W.2d 31, 38 n.7 (Wis. 1992).
D-5
The majority does not address whether a special relationship existed between
Johnson and Bjerke under section 324A, but the concurrence concludes that a special
relationship did exist under section 324A. Because I do not believe that a special
relationship existed under section 314A, it is necessary to address section 324A. A
careful assessment of section 324A and its application by this court and other courts
reveals that no special relationship existed between Johnson and Bjerke under that
provision.
The Scope of Johnsons Duty
The concurrence notes that Johnson gratuitously undertook to provide a large
portion of the services that Bjerkes parents were otherwise obligated to provide to
Bjerke. From this observation, the concurrence leaps to the conclusion that the
preliminary language of section 324A is satisfied without assessing the scope of the duty
assumed by Johnson. The proper application of section 324A, however, requires us, as a
threshold matter, to determine the scope of the duty assumed by Johnson.
An actors specific undertaking of the services allegedly performed without
reasonable care is a threshold requirement to section 324A liability. In re
Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1493 (8th
Cir. 1997); see also Patentas v. United States, 687 F.2d 707, 716 (3d Cir. 1982) (The
foundation of the good [S]amaritan rule [found in sections 323 and 324A] is that the
defendant specifically has undertaken to perform the task that he or she is charged with
having performed negligently.); Blessing v. United States, 447 F. Supp. 1160, 1188-89
(E.D. Pa. 1978) (The foundational requirement of the good Samaritan rule is that in
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order for liability to be imposed upon the actor, he must specifically have undertaken to
perform the task that he is charged with having performed negligently * * *.). Or, as
stated by the court of appeals in this case, The extent of the duty owed under section
324A is defined by the extent of the undertaking. Bjerke, 727 N.W.2d at 190; see also
Homer v. Pabst Brewing Co., 806 F.2d 119, 121 (7th Cir. 1986) ([T]he scope of the duty
is limited by the extent of the undertaking.); McGee ex rel. McGee v. Chalfant, 806 P.2d
980, 985 (Kan. 1991) (The extent of the undertaking should define the scope of the
duty.).
Therefore, in order for a special relationship to have existed between Johnson and
Bjerke under section 324A, Johnson must have specifically undertaken to protect Bjerke
from third parties at Island Farm. But the record reflects that Bjerke was responsible for
herself while at the farm, that her parents never transferred primary control over her to
Johnson, and that Bjerke spent little time with Johnson at the farm. In fact, Johnson
believed that she had no more authority over Bjerke than did Bohlman or the farm
manager. The extent of Johnsons undertaking was to provide Bjerke with room, board,
and a very limited degree of supervision. She may have had a duty under section 324A to
perform these services with reasonable care, an issue not present in this litigation, but she
did not assume the duty of protecting Bjerke from third parties at Island Farm.
We have never imposed a duty under section 324A that exceeded the scope of the
undertaking. In Erickson, we held that a security firm hired by the owner of a parking
ramp owed a duty of reasonable care to a customer of the ramp lessee because the firm
undertook to protect the lessees customers by actively patrolling the ramp. 447 N.W.2d
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at 167, 170-71. Similarly, in Pagra, we concluded that a city owed a duty to a pilot
whose plane was destroyed by fire because the city voluntarily undertook to render fire
protection services to airport users. 282 N.W.2d at 570. Johnson, in contrast, did not
voluntarily undertake to protect Bjerke from third parties at Island Farm.
Because Johnson did not assume the duty to protect Bjerke from third parties at
Island Farm, that duty remained with Bjerkes parents. The Minnesota statute governing
the termination of parental rights exemplifies the principle that parents have ultimate
responsibility for their children: [T]he duties imposed upon [a] parent by the parent and
child relationship * * * includ[e] * * * providing the child with necessary food, clothing,
shelter, education, and other care and control necessary for the childs physical, mental,
or emotional health and development. Minn. Stat. 260C.301, subd. 1(b)(2) (2006)
(emphasis added). Just as we are [r]eluctant * * * to terminate parental rights in all but
the most egregious of cases, In re C.K., 434 N.W.2d 925, 926 (Minn. 1989), we should
also be reluctant to transfer parental duties to third parties. A parents abdication of his
or her parental duties does not effectuate the transfer of those duties to another.
The scope of any duty assumed by Johnson with respect to Bjerke did not
encompass the duty to protect Bjerke from third parties at Island Farm; therefore, I would
hold that a special relationship did not exist between Johnson and Bjerke under section
324A.
Section 324A(a)
Even if I were to concede that Johnson undertook to protect Bjerke from third
parties at Island Farm, I would conclude that a special relationship did not exist between
D-8
Johnson and Bjerke under section 324A(a), (b), or (c). Johnson and Bjerke did not have a
special relationship under section 324A(a) because, although Johnsons intervention
could have prevented or mitigated the harm to Bjerke, her failure to intervene did not
increase the risk of harm to Bjerke. In Cracraft, we set forth the factors to be considered
in determining whether a municipality owes a special duty to a member of the public.
279 N.W.2d at 806-07. Citing section 324A(a), we stated that the municipality must use
due care to avoid increasing the risk of harm. Id. at 807. Assessing this factor in
Andrade v. Ellefson, we explained that [i]f Anoka County had discovered the alleged
existing danger in the Ellefson home, it may be plaintiffs would not have been harmed,
but that is a failure to decrease, not increase the risk of harm. 391 N.W.2d 836, 843
(Minn. 1986).
Likewise, the United States Court of Appeals for the Sixth Circuit explained that
the test under section 324A(a) is not whether the risk was increased over what it would
have been if the defendant had not been negligent. Rather, a duty is imposed only if the
risk is increased over what it would have been had the defendant not engaged in the
undertaking.5 Myers v. United States, 17 F.3d 890, 903 (6th Cir. 1994); see also Canipe
5 The Sixth Circuits interpretation of section 324A(a) is compelled by the language
of the provision:
This must be so because the preliminary verbiage in Section 324A assumes
negligence on the part of the defendant and further assumes that this
negligence caused the plaintiffs injury. If we were to read subsection (a)
as plaintiffs suggest, i.e., that a duty exists where the negligence increased
the risk over what it would have been had the defendant exercised due care,
a duty would exist in every case. Such a reading would render subsections
(Footnote continued on next page.)
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v. Natl Loss Control Serv. Corp., 736 F.2d 1055, 1062 (5th Cir. 1984) (This subsection
[324A(a)] requires some change in conditions that increases the risk of harm to the
plaintiff over the level of risk that existed before the defendant became involved.);
Deines v. Vermeer Mfg. Co., 752 F. Supp. 989, 995 (D. Kan. 1990) ([M]ere negligence
in failing to discover a danger on the part of a defendant * * * would not subject the
defendant to liability under 324A(a).); Derosia v. Liberty Mut. Ins. Co., 583 A.2d 881,
887 (Vt. 1990) (interpreting section 324A(a) as a section intended to describe negligent
conduct that directly increases risk of harm); Butler v. Advanced Drainage Sys., Inc.,
698 N.W.2d 117, 127 (Wis. Ct. App. 2005) (concluding that, under section 324A(a), the
actors failure to exercise reasonable care in performing the undertaking must increase
the risk of harm over that which would have existed had the defendant not engaged in the
undertaking at all), affd on other grounds, 717 N.W.2d 760 (Wis. 2006). Even
assuming that Johnson actually undertook to protect Bjerke from third parties at Island
Farm, Johnsons inaction did nothing to increase the risk of harm to Bjerke over what it
would have been had Johnson not engaged in that undertaking. Johnsons intervention
(Footnote continued from previous page.)
(b) and (c) surplusage and the apparent purpose of all three subsections to
limit application of the section would be illusory.
Myers v. United States, 17 F.3d 890, 903 (6th Cir. 1993); see also Patentas, 687 F.2d at
716-17 (describing the language of section 324A(a) as assum[ing] that the injuries result
in fact from the defendants negligent performance of his or her undertaking before it
reaches the issue of increased risk); Butler v. Advanced Drainage Sys., Inc., 698 N.W.2d
117, 126-27 (Wis. Ct. App. 2005) (quoting the Myers courts interpretation of section
324A(a)), affd on other grounds, 717 N.W.2d 760 (Wis. 2006).
D-10
might have prevented Bjerke from suffering harm, but, as we stated in Andrade, this is a
failure to decrease, not increase the risk of harm. 391 N.W.2d at 843.
Section 324A(b)
A special relationship also did not exist between Johnson and Bjerke under section
324A(b). The concurrence concludes that a special relationship existed under section
324A(b) because Johnson undertook a number of the duties normally owed by parents to
their children, such as provid[ing] Bjerke with room and board, as well as a level of
guidance. Indeed, [a] superficial reading of subsection (b) would lead one to believe
that any endeavor to help another in the performance of its duty to protect a third person
would lead directly to liability. Plank v. Union Elec. Co., 899 S.W.2d 129, 131 (Mo. Ct.
App. 1995). But such an interpretation was not intended by the drafters of the Second
Restatement and would punish those who voluntarily assist others even where the third
person was not made worse off by the volunteer acts, discourage many benign acts of
assistance, and work a revolution in tort law. Id.
The comment and illustrations accompanying section 324A(b) suggest that a
special relationship existed between Johnson and Bjerke under that provision only if, in
addition to undertaking to protect Bjerke from third parties at Island Farm, Johnson also
intended to completely assume this duty of protection that otherwise rested with Bjerkes
parents. Comment d states that a managing agent who takes charge of a building for the
owner, and agrees with him to keep it in proper repair, assumes the responsibility of
performing the owners duty to others in that respect. Restatement (Second) of Torts
324A cmt. d. Illustration 2 describes a negligent inspection by a person employed to
D-11
inspect the employers telephone poles, and illustration 3 describes a negligent inspection
of work conditions by a person employed as superintendent of construction work. Id.,
illus. 2-3. In each of these three scenarios, not only is the scope of the duty imposed
limited by the scope of the undertaking, but the duty is completely assumed by the actor.
See Plank, 899 S.W.2d at 131.
Other courts have recognized that a special relationship exists under section
324A(b) only when a duty is assumed in its entirety. In Obenauer v. Liberty Mut. Ins.
Co., the United States Court of Appeals for the Eighth Circuit affirmed the District Court
of North Dakotas determination that there could be no section 324A liability where an
insurance companys inspections did not replace a manufacturers duty to design a
safe product. 908 F.2d 316, 317 (8th Cir. 1990) (emphasis added). Likewise, the
United States Court of Appeals for the Eleventh Circuit, applying Georgia law, ruled that
for liability to be imposed under section 324A(b), a party must completely assume a
duty owed by [another] to [the third person]. Hutcherson v. Progressive Corp., 984
F.2d 1152, 1156 (11th Cir. 1993); see also Ricci v. Quality Bakers of Am. Coop. Inc., 556
F. Supp. 716, 721 (D. Del. 1983) (In order to prevail under section 324A(b), a plaintiff
must establish that the one who undertook a duty to inspect supplanted and not merely
supplemented anothers duty to inspect.); Heinrich v. Goodyear Tire & Rubber Co., 532
F. Supp. 1348, 1355 (D. Md. 1982) (Liability under section 324A(b) arises in the
workplace setting only if the actors undertaking was intended to be in lieu of, rather than
as a supplement to, the employers own duty of care to the employees.). Even if
Johnson did undertake to protect Bjerke from third parties at Island Farm and assumed
D-12
the duty to do so, her assumption of that duty was not absolute. There is no evidence that
Bjerkes parents relinquished such a significant degree of authority over Bjerke.
Section 324A(c)
Finally, a special relationship did not exist between Johnson and Bjerke under
section 324A(c) because the harm Bjerke suffered was not caused by her reliance or the
reliance of her parents on Johnsons undertaking. Reliance under section 324A(c) cannot
be assumed. Rather, for liability to be imposed under section 324A(c), there must be
proof of actual reliance on a contractual undertaking or representations by the defendant
that resulted in acts or omissions by the party relying on the defendants undertaking.
Smith v. Universal Underwriters Ins. Co., 732 F.2d 129, 131 (11th Cir. 1984) (quoting
Trosclair v. Bechtel Corp., 653 F.2d 162, 165 (5th Cir. 1981)) (emphasis omitted);
Deines, 752 F. Supp. at 996. As noted by the Wisconsin Court of Appeals, case law
applying this subsection generally focuses on reliance in the form of altering the
precautions that might otherwise have been taken without the defendants undertaking.
Butler, 698 N.W.2d at 129.
The record does not support the conclusion of the concurrence that Bjerkes harm
was suffered in some part because Bjerkes parents relied upon Johnson to look after their
daughter. As explained earlier, it was understood that Bjerke was responsible for herself
and that her parents had ultimate authority over her. The most telling indicator that
Bjerkes parents did not rely on Johnson is the failure of Bjerkes mother to alert Johnson
of her suspicion that Bjerke and Bohlman had an inappropriate relationship. If Bjerkes
D-13
parents actually relied on Johnson to protect their daughter, Bjerkes mother would have
certainly voiced her concerns to Johnson.
III.
This is, in many respects, a difficult case. It is undisputed that abhorrent conduct
occurred here, and the presence of such conduct undoubtedly triggers the desire to hold
someone responsible. But difficult facts, a sympathetic victim, and even the sound public
policy of protecting children from sexual abuse should not obscure the significant
expansion of third party liability undertaken by the majority today.
I agree with the majoritys conclusions that there are genuine issues of material
fact as to whether Bohlmans sexual abuse of Bjerke was foreseeable and that primary
assumption of risk does not apply in this case. But, because a special relationship did not
exist between Johnson and Bjerke under either section 314A or section 324A, Johnson
did not have a duty to protect Bjerke from Bohlmans sexual abuse. Therefore, I would
hold that the district court properly granted partial summary judgment in Johnsons favor.
I respectfully dissent.
PAGE, J. (dissenting).
I join in the dissent of Justice G. Barry Anderson.
GILDEA, J. (dissenting).
I join in the dissent of Justice G. Barry Anderson.
 

 
 
 

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