*1 828 Johns, 564, (Minn. v. 354 N.W.2d 566

Johns

Ct.App.1984); and the court has discretion party only. one to award debts to See 76,

Dahlberg Dahlberg, v. 358 N.W.2d

(Minn.Ct.App.1984).

The trial court did not abuse its Margery

discretion when awarded assets $39,000, awarding

valued at while John as $129,000

sets valued and liabilities esti $158,000.

mated at The unusual facts of determination, compel

this case this

the trial court did not err in its division of parties’ property.

7. Attorney’s Margery Fees. has cross-appeal

filed a on the issue attor fees,

ney’s claiming that the trial court’s

award was insufficient she should appeal.

be awarded fees for this Mar

gery’s regarding sufficiency claim

attorney’s presented fees below was never court; therefore,

to the trial it cannot be appeal. Miller,

raised on See Miller v. (Minn.Ct.App.1985). Mar

gery’s request attorney’s fees for this

appeal is denied.

DECISION part

Affirmed in and reversed and re- part.

manded in ANDRADE, individually par-

John and as guardian Joseph

ent and natural J.

Andrade, Aasen, and Dennis W. individ-

ually parent guardi- and as and natural Aasen, Appellants,

an for Jerrett J.

v. ELLEFSON, al.,

Elizabeth et

Respondents, Anoka, Respondent.

No. C4-85-554. Appeals

Court of of Minnesota.

Oct. 30, 1985.

Review Granted Dec.

therefore liability immune from under sec- tion 3(j). Appellants appealed and Anoka filed a notice of review. We reverse and remand for trial.

FACTS *3 Respondent County Anoka in learned July respondent 1974 that Elizabeth Ellef- Lawson, Laue, P. Dean John F. Minne- providing day son was care services with- apolis, appellants. out a license in violation of state law. Ms. Ellefson was notified of this violation and Heikes, Paul, Graham N. St. Richard A. proceeded apply day for a care license. Beens, Anoka, Ellefson, for Elizabeth et al. Her application processed initial was Johnson, Atty., Robert M.A. Anoka Co. inspected by her home Terry Nagel, was a Haluska, Thomas Atty., G. Asst. Anoka Co. former County case aide with Anoka Com- Anoka, Paul, Gowling, James R. St. for munity Health and Social Services. County. Anoka Nagel inspec- learned and recorded in her report Ansleigh, tion 21-year- Leslie Heard, by considered and decided POPO- retarded,” bld male “possibly who was VICH, C.J., LESLIE, and FOLEY and JJ. Nagel lived in the home. did not interview Ansleigh background or police run check on him. At deposition her she stated OPINION that Ms. Ellefson had told her that Ans- FOLEY, Judge. leigh had in mentally been a home for youth. Nagel retarded recommended that parents guardians of two minor licensed, the Ellefson home be and the li- children negligence sued Anoka allowing cense was issued for the care of supervising, inspecting and recommend- preschool five children. ing licensing day care home where their seriously injured. infants were Ap- 1975, Nagel In December conducted the pellants day operators also sued the care relicensing inspection. Nagel annual re- negligent operation, for their care and con- that, time, called eight at that there were facility. trol of moved for home, using or nine children not neces- (1) summary judgment arguing: it is im- sarily day. at the same times of The home mune from liability under Minn.Stat. upon Nagel’s was relicensed recommenda- 3(j) (1984) when it acts as a following inspections, tion and her “employee” recommending state the state’s 1976, 1977, 1978 and 1979. Ms. Ellefson licenses; (2) issuance of it cannot be found voluntarily quit day April care in then negligent since it owed the infants sought again relicensing for 1980. Follow- general public duty rather special than a ing visit, an at which time Ans- (3) duty; liability it is immune from be- leigh again was observed in the Na- licensing cause the day care gel homes is a relicensing recommended for 1980. Na- act; discretionary (4) injuries gel complaints were received several from a the result superseding neighbor of a cause. of the Ellefsons who observed overcrowding day the Ellefson care granted county’s trial court mo- complaints Apparently home. these were summary judgment tion for on its based investigated. not ruling employee acts as an inspects state when it interrogatories and recom- indicate that Ans- mends leigh investigated facilities and is for child molestation complaints, fully The mothers of Several discussed more one occasion. on at least analysis, by Eyer were received girls who attended the small two regarding his co-worker overcrowding and statements to home submitted children in abuse of the Ellefson home. 1983 re- County authorities June Although Eyer by drove the home once to daugh- of their the sexual abuse garding many see if there were yard, children January Ansleigh in 1977. The ters . reported, investigate as he did not the oth- promised that Ms. Ellefson mothers stated Instead, complaints. er he believed the counseling for quit day care and obtain complaints were made a “troublemak- deposition psychologist of a Ansleigh. The er.” His co-worker considered fre- counseling Ansleigh received indicates complaints quent “far-fetched.” January 1978 to from October 12, 1982, On December 7-month-old Jo- indication that the Although there no seph Andrade sustained serious of this information before county learned while at the Ellefson care home. The suspended in Ellefson’s license was Ms. *4 interrogatories indicate that the Andrade 1983, pre-licensing did conduct infant was treated for a convex skull frac- in 1980 when she inspection of Ms. Ellefson ture, epilepsy injuries. and other Anoka again. At this time Ans- began protection child In- worker Barbara police and no leigh was not interviewed investigated injury. grassia Written though even he was check was conducted prepared by kept materials her were confi- The at the time of the visit. in the home compliance in dential with Minn.Stat. Deputy interrogatories indicate that Sher- 13.05, 4 626.556 and subd. §§ Roger appellants that “an iff Foss told destroyed subsequently Records were be- Ellefson’s employee of Elizabeth January December 1982 and tween investigated for child mo- center had been according Ingrassia, required by to as sec- least one occasion.” lestation on at tion 1981, Eyer, day care licenser In James inspected and The Ellefson home was County, responsible for became for Eyer in relicensing recommended Janu- licensing supervising and inspecting, ary recommendations from 1983. Solicited He conducted the Ellefson care home. report from parents included one favorable legally-mandated inspections in annual did Joseph mother of Andrade. She 1983, recommending relicens- injuries in her eval- not mention her child’s By apparent home. ing of the Ellefson uation form. such an

oversight, he failed to conduct Jerrett May 7-month-old On recom- inspection in 1981 but nevertheless injured in the Ellefson seriously Aasen was relicensing. mended stopped breathing, was day care home. He and then tak- by Ms. Ellefson licensing inspec- resuscitated conducted his first Eyer Unity Hospital. He en ambulance operation January in 1982. At tion of the Minneapolis Chil- transported later was inspection, he found the this unannounced treatment Hospital for further dren’s violating because home its license Ellefson Aasen in- evaluation. observed on pre-school children were six damage, visual include sustained brain fant home, floor main floor of subarach- spastic quadriparesis, loss and Ansleigh, an He also met he checked. plus palsy, other hemmorage, cerebral noid he living in the home whom adult male alleges complaint possible injuries. Ellefson, at least on a assisted Ms. learned permanent from suffer the children basis, Eyer did not part-time child care. prevent them likely to disabling injuries with, police run a speak investigate or employment. productive engaging Ansleigh despite rules check neighbor from a Eyer recom- learned this. The home was After requiring El- appearing at the the ambulance about relicensing. mended baby away, bedrooms, home to take a he went probably larger lefson two small no feet, to the Ellefsons he learned: than 8 where each contained four x lights drap- cribs. were out and the fairly they I am sure that she said that eries were drawn. There was one crib taking him and him in had fed were bedroom, apparently what is the master nap, just stopped enroute his he living which is off the room. There was breathing. attic, also a crib an unfinished as well When asked: portable type as the crib which was in you, you Did she tell do remember living room. you whether she told whether she was During my both of visits taking him back to his bed or whether first, approximately which was Ansleigh taking Leslie him back to second, 45 minutes and the which was 3 his bed? hours, I conspicuous any noted a lack of Eyer responded: kind of noise from the children. ofMost I believe she said Leslie was. the children were not visible and were brought out of the “crib rooms” as their Ingrassia report stated in her that one of parents came for them. spoke inju- she doctors with about the ries 7-month old Aasen infant related Eyer then suspen- recommended the license to her reports that: “The which he had sion because: neurologist reviewed from the and the problem child, with the Aasen I ophthalmologist indicated some acute and guess we still were not clear at that *5 eye ground hemorrhaging chronic which point whether something she had done shaking.” was consistent with hard The not, certainly questionable, but report also revealed evidence an arm plus presence of thirteen children in fracture sustained 2-5 weeks earlier. there question was no about that, plus the fact she had in not let me 2, 1983, learning On June after that the day, plus one point that had we baby Aasen “was worse off than we had alleged learned of some sexual abuse thought, may just and it not have been [Ansleigh] perpetrated Leslie had on breath, holding possibly his that there was couple care children several involved,” something Eyer Ingras- else and years they which before had never re- They sia went to the Ellefson home. found ported to us. present 13 children on various floors of the yard. home and two unattended in the All guardians parents and of the two (6 age years were under the of 3½ were injured negli- infants sued the Ellefsons for age). Ansleigh under 13 months of Leslie gent care and County negligence Anoka present. Ingrassia compelled was also felt inspecting, supervising licensing report to note her observations in her on Following care home. dismis- investigation abuse the Aasen against county through sal of the claim baby: summary judgment, appellants brought appeal County this and Anoka seeks house, From review ap- the outside of the it is rulings. of the court’s other parent that all of the windows closed, home are not but sealed with

plastic temperature on the outside. ISSUES high, my guess in the home was would County Is Anoka immune from liabil- degrees. draperies be at least 80 ity employee”? here as a “state mostly pulled only light were and the plant light living was a room. 2. Does Anoka owe the infants left, injured spe- After the children Mrs. Johnson and a licensed care home a I premises toured the noted cial of care? where we included the term “state” therefore result of a su- 3. Were subdivisions, including these excluded cause? perseding counties, political these subdivisions so that the limited tort would not benefit from ANALYSIS employ- and its immunity granted the state ees. Immunity. Tort 1. State County does not fall within reading Even a of the definition its to “the state and granted

the exclusion specifically types “employee” indicates ” on the fail for losses “based employees does not include a persons included but the standards any person to meet ure of statutory interpreta county. A maxim of * * * by the a license issued tion, needed for “expressio unius est exclusio alteri- 3.736, agents.” us,” Minn.Stat. meaning expression or its of one state added). (1984) another, (emphasis seems to 3(j) thing is the exclusion of subd. apply chose to exclude specifically here. legislature (cid:127) of state: from the definition counties held that the is an The trial court depart each of the includes “State” granted it sum- “employee” here and thus boards, ments, agencies, commissions mary We find that the judgment. in the executive branch and officers which would make any did not meet criteria but Minnesota and includes the state of employee. it an Housing the Minnesota not limited to of our state delin- The statutes rules * n *, University of Agency, Finance county and relationship eate universities, Minnesota, community state licensing day care respect state with penal state colleges, hospitals, state obligation The state has homes. city, It does not include institutions. if inspect and determine homes district, town, or other county, school 245.- are met. Minn.Stat. requirements §§ body corporate and governmental local However, in rules 245.804 politic. 245.802, Minn.Stat. promulgated under 1(1) (1984) (em- (1984), refers to the local subd. the state Minn.Stat. § *6 “agency”: as an department added). county welfare phasis qualified, Agency. unless “Agency,” to consider legislature directs us The depart- county welfare local means the inter- particular of a consequences “[t]he delegated ment; duly the agency is the 645.16(6) (1984), Minn.Stat. pretation,” § commissioner. of the representative absurd, im- “a result that is and to avoid unreasonable,” (1983). execution, 9545.0310, The subpart or 1 possible of Minn.R. 645.17(1)(1984). The effect of also state: Minn.Stat. rules § of from the definition excluding counties [family day-care a FDC applicant for The from may not benefit is that counties state duly through a apply license shall home] immunity given to the grant of partial the the commis- representative of delegated * * * Impliedly, the section 3.736. state under sioner. counties not thus intend legislature would completed signed and receipt of a Upon granted state immunity from to benefit evalu- form, agency shall application employees. upon FDC based prospective ate the FDC which prospective A these rules. “employ- of “state” and The definitions rec- shall be standards meets minimum only to apply 3.732 in section ee” found is- for to the commissioner ommended 3.736. Minn.Stat. 3.732 and See sections * * * a FDC license. suance of 3.732, (1984). legislature 1 The license shall provisional A nonrenewable political subdi- obviously presumed that the year up to one period a issued for be might inferred to be a state be visions of 834

where, opinion agency period in in the of the which the children’s oc- fully not department, PDC does curred. We hold County may that Anoka comply with standards. not itself with immunity cloak a remnant of asserting a twisted construction of the regular A for license shall be issued a Torts State Claim Act.1 where, period years to upof two opinion agency depart- and the Special Duty. 2. ment, fully complies the FDC licens- with ing County argues standards. it cannot be for negligently supervising held liable 9545.0320, subparts Minn.R. 5 3 & inspecting the Ellefsons’ care home county acts on of or behalf duty it special appel because owes no to state, solely along side at its not questions lants. The trial court found according direction these rules disagree fact on this issue. We and hold Licensing Minnesota Public Welfare Act appellants spe that Anoka owed 245). (Chapter The state does not oversee “special duty” cial here. A is owed to county carry how the chooses to out these public an individual rather than to the as a requirements obviously fire a cannot governmental A whole. subdivision is lia county. county pro funding for its negligent only if ble for there is gram directly carry is also not tied to the special duty. Stade, such Hage v. 304 ing out of this function. The funds are 283, (Minn.1981); N.W.2d v. Cracraft general allocated out of state Park, 801, City St. Louis grants community for federal social (Minn.1979). programs. Clearly, service is (a decision) sug- six to three not an employee. Supper See LeGrand Cracraft gests making factors consideration (Minn. Seline, Club v. 348 N.W.2d a determination one is whether immune Ct.App.1984). liability public from had because it state, by rule, has defined special duty injured par- rather than “agency” as an here. Minn.R. ty- 9545.031, subpart According to Minn. then, point, municipali- At what does 3.736, Stat. subd. 8: ty protection assume to act for the Liability A in- agency, insurance. state distinguished acting others as cluding any entity part of defined as a merely inspects for itself when the state in section subdivision parties activities of third for fire code (1), may procure against clause insurance bright violations? There no line. liability agency employees and its But, exhaustive, intending without be damages resulting torts of from the there are at least which factors four agency employees. pro- and its First, be should considered. actual *7 this curement insurance constitutes of knowledge dangerous the condition of a governmental waiver the defense of of impose to is a which tends a factor liability the extent immunity to the of municipality. on duty the Sec- of policy stated in the but has no effect on ond, by persons reasonable reliance liability agency employ- the and its municipality’s representations and beyond coverage provided, ees so impose duty tends a of conduct to care. added) (emphasis course, reliance Of on the Instead, general Anoka a is not sufficient. County concedes it maintained general policy during insurance reliance be based on liability reasonable must 03, (1984). properly 1. The 6 also contains a trial court ruled that subd. This Act County any governmental liability is not immune from under waiver defense of immuni- exception discretionary ty liability policy extent of stated in a of acts found to the Liability Municipal liability insurance. 466.06 Tort Act. Minn.Stat. 466.- Minn.Stat.

835 representations actions or which owners whose specific property damaged as a persons forego to other alter- result of fire county’s cause the because the solid Third, protecting township dump waste officer knew natives of themselves. that the comply pollution may agen- an did not with control duty a of care be created cy regulations and potential man- was a fire haz- or statute that sets forth ordinance respect property ard with to clearly for of a certain but did datory protection acts nothing compliance. to secure persons of than particular class rather Finally, a the mu- public as whole. case, regu- In the instant applicable PCA use to avoid nicipality must due care contemplate protection against lations ac- risk of increasing the harm. cidental fire. Enactment of Minn.St. * * * regula- 400.06 after issuance of the (footnotes omitted) (em- at 806-07 Cracraft tions legislative indicates intent that added). phasis

counties enforce standards. Al- these Knowledge. A. Actual though regulations part such general public’s benefit, they are also Supreme has stated The Minnesota Court designed protect to individuals who live finding knowledge of of a that a “actual proximity disposal to solid waste sites. dangerous may condition” sufficient to be Since had actual officials special duty injured party: find a an knowledge the risk serious harm of of that principle governmental is a foreseeably plaintiffs that threatened particular owes a individual a unit position were in a and and had duty agent, care when its of officer risk, abate authority act, position authority and with imposed by regulations the statute and knowledge have has or should had * * * was actionable. We therefore re- safety that standards condition violates for trial. mand and prescribed by regulation, statute or omitted) (footnotes Lorshbough at 102-03 presents a risk of harm to that serious added). (emphasis or his When property. the individual injury reasonably clearly such serious foresee- A review of record able, duty to governmental unit has a there is material evidence of Anoka shows County’s knowledge actual of child abuse exercise reasonable care for individu- at the care home safety. neglect al’s legal to carry it failed out its Buzzle, Lorshbough Township v. 245.783, (see Minn.Stat. duties §§ (Minn.1977)(emphasis add- N.W.2d 245.804, (1984); Minn.R. 245.805 ed). (1983) seq. et recommend 9545.0310 before Stade, (Minn. Hage In v. licensing and ing the Ellefson home for decision), 1981) (a five to four the court relicensing. governmental any found that no unit owed at her neighbor A of the Ellefsons stated parties injured killed in a duty to the to Anoka deposition reported that she fire, noting: hotel English, workers Sandra Thus, no the state there is evidence that by telephone Nagel Eyers Terry James knowledge any dangerous had actual person on occasions over and in several any which were violations conditions years, was over- there number im- fire code and which would serve to *8 home crowding day the care Ellefson special duty on the state under pose a abused physically were that children first factor. the Cracraft yard. neglected in the back and often added). (emphasis Id. at 288 Ms. specifically English that neighbor told flush told her she would in that the Ellefson had that Lorshbough The court held stop child in the head the toilet to duty property a child’s county owed a of care neighbor crying. Eng- neighbor’s also told Eyer the home. indicated that she had once observed a small he failed to take neighbor seriously lish hobby to a horse and left alone in child tied most of the time and considered her a yard for complaints the back several hours. troublemaker until her were validated. He took her seriously after the receiving English admits numerous calls injury severe of the second in infant lasted that ten to fifteen minutes from this home and subsequent when his unan- neighbor: nounced preschool revealed 13 children, things many There was like too children the home. being yard, little children left out in the once, Eyer only January stated that something funny going garage. on in the dropped had he in unannounced to quite a She talked bit about a man who inspect Otherwise, the Ellefson home. staying with the Ellefsons that she relicensing inspections annual prear- were child, called their foster which is not ac- * * * ranged. Eyer also stated he never checked curate. She talked Leslie about upstairs or basement to see if other having to care for the children. Some- present children were in the home or to see thing being about a tunnel built between if restrictions on the use of these areas garage and the house. were followed. January The unannounced English relayed stated that she written preschool 1982 visit revealed six children messages of Eyer, these calls to the social floor, on the main inspected. floor responsible worker licensing who was subsequently He relicensing recommended English specifically Ellefson home. re- the home. receiving telephone membered a call from a The facts here differentiate this case neighbor complaining quite “there were from the and Hage cases where group of small children Mrs. Ellefson’s Cracraft only public Here, was found. it is quite there backyard, they had been that clearly demonstrated that Anoka awhile, hot, very and was and one of the had knowledge “actual of seri- risk hobby small children was tied to a horse.” foreseeably ap- ous harm that threatened English testified that she believed “[t]he pellants.” Lorshbough See at 103. Since pretty accusations were far-fetched.” authority “had the abate English neighbor oper- knew that the also risk,” imposed” “duty upon ated a care home and she was not governing the statutes and rules any complaints aware received about the actionable this case. neighbor. neighbor further testified See id. many times whoever answered her regarding calls aptly activities at the Ellefson The trial court reviewed the addi- hang up home would suggested her as soon as he tional three factors for evalua- recognized or she her voice. tion in the case and found some Cracraft point. Although evidence on each our case Nagel complaints does not remember require finding law does not on each neighbor overcrowding, made about factor, a discussion of these factors further although neighbor stated she told Na- supports holding our this case should gel several times that Ellefson exceeded proceed to trial. her license. Eyer receiving admitted numerous com- B. Reasonable Reliance. plaints, by phone person, and in from the neighbor regarding children, the number of children in whether not, allegations parents as well as fants or and their relied on the noncompliance neglect county’s pre-licensing relicensing with rules and in Eyer children. spections supervision only appropri- licensed both the Ellefson *9 qualified protect day placement homes to the family’s ate and C. a of the own chil- par- children from harm while their care dren in foster care or residential treat- ents were at work. ment for emotional disturbance within previous the 12 months pri- unless the seeking child care were referred Parents * mary *; reason for placement such licensed county only to a list of by the Licensing day care homes is not homes. of (1984).

mandatory. Minn.Stat. 245.791 D. a conviction any felony or of- may select licensed or non-licensed Parents involving turpitude. fense moral distinguishes licensing in- This the homes. Id. As district court noted: county here most spections of the By recommending that the license be licensing general functions of a state other issued, represented has where all businesses their person in day no care household has must a license or class obtain submit any proscribed of the characteristics. inspections. plaintiffs may The relied have on that parent using affidavit of a of a child representation per- and refrained from day the Ellefson home for care stated that forming their day own in a licensed only place he would his child investigation care center or their own of licensing fact that home. This reflects the persons running center. day for licensed care standards and rules selecting important parents homes are Likewise, parents rely licensing on other rely on en- day parents care and that prerequisites and thus often limit their own licensing of rules. The rules forcement investigations operator. of the home and provided care governing type of to be day children in licensed care homes and C. Protected Class. require pages in centers over 50 volume very strong Evidence on this factor is Minnesota Rules These rules of pages governing here. of rules required day qualifications discuss the operation licensing care homes providers, physical environment of specifically and centers detail how the supply, the milk and water venti- needs of the children in the home are to be lation, nutrition, activities, daily furniture met or not met. The obvious benefactors yard space requirements, use of licensing are the children who basement, cleanliness, lighting, discipline, and, parents. indirectly, use them their children, toileting, Ap- diapering, sick etc. allege that the

pellants public violated affected general is not recommending, licensing of these rules only spe- applicant, refusal to license an relicensing home. children, cifically group determinable number, is the direct benefactor limited parents may The trial court noted that of each issued license. Each licensed specific governing day rules have relied on only accept a limited num- may care center required personal care which state the center must main- example, ber of children. Each qualifications applicants. For enrolled, (1983)prohibits the is- their Minn.R. 9545.0340 tain records of children suance of a FDC license to a home where records. Each health and immunization any any member of the household has complet- inspected and checklist center is following characteristics: ensure the prior to initial ed for, of, or A. a conviction admission children enrolled safety of individual child substantial evidence of an act of children are parents of enrolled there. battering or child molest- or child abuse ill appears or is their child contacted when ing; injured. drugs that its B. use of alcohol or such rules is orientation of the The entire apparent during the hours

effects children. For care; of the enrolled protection that children are *10 prohibiting corpo- glect there are rules at the Ellefson even the seri- example, injury ous of the Andrade infant the stated months psychological ral or abuse for infant, injury before the Aasen “[although that families differ reason county failed to exercise reasonable care approach discipline, to harsh or their under the circumstances. threatening appropriate methods are not day for children in care.” Minn.R. 9545.- county charge The officials in of licens- governing per- The rules ing the home Ellefson admit to never qualifications day providers sonal care checking Ansleigh’s background, admit state: they police did not interview him or run a English Nagel check on him. and ex- applicants living

FDC and others in the plained procedures that rules and responsible shall be kind and household check, require background including a an genuine people liking with a for children. check, police interview and on adults in the possess They shall consistent discovery pro- home. Further and evidence healthy handling life methods for may produce duced at trial well a causal style unique their to own families. relationship injuries between the infants’ family day-care pro- Reason: Children in Ansleigh. and the conduct of grams day are under care of the county relicensing officials admit El- large providers portion day for a of the inspection, lefson in 1981 with no admit strongly and therefore are influenced relicensing though in 1982 even she was climate and the values emotional found to exceed her license that day-care within that home. Children though neighbor even told them she young frightened often too too to up had observed to 10 children at times speak against physical out or emotional year. They relicensing admit to neglect. abuse or apparent investigation 1983 after no Minn.R. 9545.0340. Other rules list re- injuries sustained the Andrade infant in activities, quired daily state that infants relicensing the home the month before the during feeding, must be held bottle de- inspection. despite was done This scribe the recommended diet and exercise neighbor’s phone calls about the child tied specific ages, for children of etc. The trial horse, flushed, hobby being to the the child court concluded: up being and that were seen 19 children clearly These detailed rules are intended picked up in one afternoon from the home. protect special people, day- a class of relicensing also each admits children, physical and emotion- year investigating without whether Ans- They general safety al harm. are not leigh assisting care and was required protect general pub- rules employee job. for this suitable lic, “mandatory clearly but acts for the County licensing employees explained protection particular per- aof class of they allegations did not take the public sons rather than a as a whole.” neighbor seriously her but considered at 807. Cracraft “troublemaker” and believed her accusa- They Children enrolled in the Ellefson home tions were “far-fetched.” even told getting her she was too old for care. protected were a class to whom overcrowding admits notice of County owed a of reasonable care neglect children in the and abuse pre-licensing inspec- their interviews and home, yet employees its conducted tions, relicensing inspections supervi- annual, cursory inspec- only prearranged, for rule sion violations. the home’s main floor. tion of D. Due Care. The uncontroverted evidence here estab- despite

There appel- is evidence that owed the lishes that Anoka warnings overcrowding, special duty of care. abuse and ne- lants a POPOVICH, Judge Superseding (dissenting). Chief Cause. argues that cannot respectfully I dissent and would affirm appellants’ for the held liable be court: the trial *11 result of a injuries were the because those Following Spanel 1. v. Mounds View agree the tri We with superseding cause. 621, 279, School District No. 264 Minn. 118 ruling on this issue: al court’s (1962), the legislature N.W.2d 795 state the result of injuries were Whether Liability enacted the Minnesota Tort Act of direct result superseding cause or the granting municipalities 1963 and local cannot de- County’s negligence be counties, agencies, including limited immu- summary judg- on a motion for termined nity. Minn.Stat. ch. 466. The absolute im- Summary judgment should ment. munity by passage of the state was limited clearly applied where there is no issue be majori- of Minn.Stat. 3.736 1976. The Herreid, v. 305 N.W.2d of fact. Nord ty makes much of the exclusion of counties cause, 337, (Minn.1981). Proximate from the definition of “State” section case, County is not clear. If the in this 3.732, 1(1). legislative history subd. of overcrowding and un was aware of the laws indicates the for that both basis exclu- Ellefsons, safe conditions at the then already sion since counties were covered in foreseeable, injuries reasonably were chapter 466. The discussion of inclusion or of the Ellefsons was not any negligence is exclusion of no assistance this matter. Lee, v. 270 Minn. superseding. Kroeger 75, This is a 132 N.W.2d responsibility inspect 2. homes is room for factual issue on which there and license care homes is a state re- opinion among “honest differences sponsibility, majority as the admit. This people.” v. Inde reasonable Hamilton delegated responsibility state is to the ** * 114, pendent No. School Dist. [355 who, acting, doing counties when so so (Minn.Ct.App.1984) ]. majority employees. as state cites Le- Summary judgment granted cannot be as Supper authority as for their Grand Club argument. to this position county employee, is not an but private employers involved LeGrand DECISION purpose unemployment of state the limited granting 1. The trial court erred in Ano- indi- compensation law. Here the statute County summary judgment on the ka basis relationship. cates the actual liability is immune from as a state “em- it 245.801, Minn.Stat. 245.783 Under §§ ployee” under the- State Tort Claims Act. issue, deny, sus- the ultimate decision to special 2. owes a rests with the pend or revoke a license appellants. to the However, Department of Public Welfare. 3. Whether the infants’ were 9545.0310, subpt. under Minn.Rule superseding the result of a cause should be desig- department county local welfare at trial. determined delegated representative of duly “the nated compel the The rules remand this case for the commissioner.” We reverse and remaining department issues of Anoka to evaluate county trial on the welfare including County’s alleged negligence, potential operator and recommend so, duty and if mini- whether it violated its meets the prospective if licensee the violation was a direct cause of whether the rules. prescribed mum standards appellants’ injuries, Furthermore, and an award of dam- 9545.0320, subpt. 5. Rule against The action ages, appropriate. if visits at county must make evaluation remains for trial. the Ellefsons subpt. every months. Id. least once twelve services, the provide these In order to Reversed and remanded. funding from the state and county receives All of these factors governments. POPOVICH, C.J., federal dissents. relationship forming general reg its under these that the between duties tend to show ulatory inspections, government must county an was that of the state and plaintiff special duty. have owed the employee. employer and case, present In the there is a controver- court, viewing question The district sy over whether the had actual statutory construction” “problem as a knowledge dangerous conditions of employee did act as an held reg- center. The statutes and state, immune from therefore was designed ulations also seem to have been court, citing Minn.Stat. liability. That protect day care children as a class. In 1(2), noted the this, summary spite judgment should agent acted on behalf of the an which granted undisputed it is have been because *12 court, therefore, held state. The district appellants reasonably rely on did not the I county employee the was an state. specific representations conduct of the agree. county county nor the did increase risk county I has a 3. Neither do believe of harm to the children. special duty appellants performs to as it prong Under the second of the Cracraft special the state’s duties. The test, appellants they reasonably must show duty theory City stems Cracraft v. representations specific relied on actions or (Minn. Park, Louis 279 N.W.2d 801

St. county they so failed to take other 1979). There, supreme held a court protect Although steps to themselves. negli governmental body is not liable for suggested ways trial court numerous gent inspection “special unless owes appellants may which have relied on the duty” injured person than a to the rather county, the evidence is an affidavit duty says general public appellants to the as a whole. The filed one of the which he would not have sent his child to the duty judicial special essentially doctrine is had it licensed. care center not been This recognition of the modern trend to make general county’s inspections reliance on the government inspections in a vast number just to license is not and recommendations routinely of areas. Governmental bodies enough satisfy requirement. to this As the general building inspections, fire in make court stated: Cracraft variety spections, inspections of a wide general on the Reliance of other establishments. While each of the Instead, not sufficient. the reasonable inspections the individuals who use benefit specific on ac- reliance must be based inspected, particular establishment representations cause the tions or which regulatory designed entire scheme is persons forego other alternatives of society special protect as a whole. protecting themselves. recognizes prevalence doctrine 279 N.W.2d 807. general regulatory enactments and these the immense financial burden which could Appellants they do not assert relied on governmental imposed be on bodies when any specific by county statements officials or underinsured third possibly they inspected insolvent had and the facilities they relied they safe. Nor do assert parties negligent plaintiffs seek a were gen- other than the any specific conduct “deep pocket.” As the court stated licensing. inspection and Because eral Buzzle, 258 Lorshbough Township v. to show that record contains no evidence (Minn.1977), “Government any specific relied on actions appellants all the is not intended to be an insurer of county, the second representations of the life, dangers despite of modern its ever-in clearly not test is factor of the Cracraft creasing protect citizens from effort its met. this, the Minnesota Su peril.” Because test is preme Court has held in order for factor in the The fourth Cracraft in this case. trial negligently per present also not government to be liable for merely felt the would be liable court not exercise reasonable care

if it did STALL, Appellant, David T. investigating care center. How- v. ever, test is not wheth- under Cracraft FIRST BANK NATIONAL OF care to decrease the er the used due BUHL, Respondent. trial court seemed to harm as the risk of appellants must Cracraft, Under believe. No. C8-85-511. county did not “use due care to

show the Appeals Court of of Minnesota. increasing the risk of harm.” Id. avoid subtlé, the distinction is the cases Oct. While obligated that the is not have shown harm, merely to

to decrease the risk of but In increasing Hage

avoid the risk of harm. Stade, (Minn.1981), 304 N.W.2d 283

v. found fourth factor was not

court this

present though governmental even in-

spectors failed to decrease the risk of The same is true of the

harm. Cracraft *13 inspectors arguably failed to exercise who inspections.

reasonable care their matter the did

It is clear this

nothing the risk of harm to the to increase assuming

children. Even knew dangerous conditions

center, the risk of to the children inspections was the same as be-

after inspections.

fore the The situation is sim- the court stated Cracraft,

ilar to where explosion prior inspec- to the

“the risk of inspection.” the same as after the

tion was this, at 808. Because of part of test is also

fourth the Cracraft

clearly not met. event, any In it is clear the procured liability insurance. To the

has has, immunity is to the

extent waived coverage poli- defined in the

extent of the expenditures

cy, premium otherwise the public funds have been a waste of

would contrary public policy. Minn.Stat. 8, 466.03, In subd. 6

§§ not, liability is how-

my opinion, unlimited

ever, plaintiffs continue to provided. The proper private cause of action

have a employees of the

against operator

day care center itself.