*1 Nancy Becker, BECKER and Michael
individually parents guard and as Nyk Nykkole E. Becker
ians for f/k/a Rossini, Appellants, E.
kole Department
Minnesota of Human
Services, Intervenor, Plaintiff
Appellant, FOUNDATION, Respondent.
MAYO A05-45.
No.
Supreme Court Minnesota.
Aug. 2007. *3 Provinzino, Messerly, A. Laura M. OPINION Chris L.L.P., Robins, Miller & Ciresi Kaplan, ANDERSON, H., PAUL Justice. MN, Appellants for and State Minneapolis, of Minnesota. adoptive parents of a child abused Brennan, Klaas, Dorsey Paul B. Gillian biological her father sued hospital Decker, LLP, Whitney Ann E. Fre- & parents treated the child. The al- MN, Byron, Minneapolis, drickson & leged hospital’s that the physicians failed Respondent. prevent ongoing abuse. The district Bohr, Chang Law Cen- granted Gail Children’s hospital’s court motion to Minnesota, Paul, MN, Mary R. ter of St. strike three parents’ counts com- *4 Edelman, Mason, Vasaly, Borman & plaint parents and ruled could not Brand, L.L.P., MN, Minneapolis, for Ami- hospital’s introduce evidence of the failure cus Curiae Children’s Law Center of report suspected child abuse to outside Minnesota. authorities. A jury then determined that Melton, Hartzheim, hospital negligent Ani Backa was but that this
Elizabeth PLLP, Foley Minneapolis, negligence & Mansfield was not a direct cause of the MN, Amicus Curiae Prevent Child injuries. parents appealed, child’s ar- Abuse Minnesota. guing that a cause of action exists under Act, Reporting the Child Abuse Minn.Stat. Office, Kingsley, Kingsley
Karen J. Law 626.556, § and at common law for failure P.A., MN, Paul, St. for Amicus Curiae report suspected abuse. The court of Lawyers Minnesota Trial Association. appeals affirmed the district court. We Finnegan, Jeff Anderson & Michael G. part, part, affirm in reverse and re- Associates, Paul, MN, P.A., St. for Amicus mand. Curiae Survivors Network Minnesota. Whitemore, R. Mark. Charles E. Lund- Becker, known Nykkole formerly as Gustad, Remele, berg, E. Susan Bassford Rossini, Nykkole adopted daughter MN, Minneapolis, for Amicus Curiae appellants Nancy Becker and Michael Association; Hospital Minnesota Minneso- Nykkole, ten-years- Becker. who is now Association; ta Medical American Medical old, severe, permanent suffers from dis- Association; Orthopaedic Minnesota Asso- by as a of physical abilities result ciation; American Association of Ortho- biological biological her father. Her par- paedic Surgeons; College American Sabryna ents are Brian Rossini and Koob. Emergency Physicians; and American Nykkole July was born on 1997 at Pediatrics, Academy Chap- Minnesota Rochester, Hospital Methodist Minneso- ter. healthy ta. At birth she was a child. On Bjorkman, Duggan Louise Dovre Paula 17,1997, old, days was 22 August when she Vraa, Daniel, A. King, Carrie Larson biological brought her to the parents her L.L.P., Paul, MN, St. for Amicus Curiae emergency Mary’s Hospital room at Saint Lawyers Minnesota Defense Association. Rochester, by hospital respon- a owned Jerabek, Niemi, John Michael Barr & Nykkole dent Foundation. When Jerabek, P.A., MN, Minneapolis, for Ami- brought hospital was to the she had bruis- cus Curiae. Following es on her left forearm. an ex- x-rays, hospital diag- amination and staff spiral fracture Nykkole having nosed as Dr. Rosekrans acknowl- retelling. humerus is the each humerus. The to the left spiral Nykkole’s upper edged in the arm and that she did not interview long bone the bone. goes one that around separately fracture is and that she and the parents Mary’s questioned staff at Saint Medical other staff members did not corroborate injury Nykkole parents about the both story with additional sources. Rossini’s Brian told it occurred. Rossini other, and how phy- consulting After with each the fracture oc- the medical staff injuries Nyk- sicians concluded that the He the result of an accident. curred as abuse, they kole were not caused feeding Nykkole was while said that he care. parent’s released her to her in his arms and that as he holding her 3, Nykkole September returned to On “spasmed” for a bottle she stood to reach treatment for hospital follow-up for a of arms. He stated began to roll out time, arm. At this the fracture to her left fell, grabbed he her left Nykkole that as Nykkole hospital staff who treated deter- hitting her from the floor. keep arm to healing that the fracture mined was аpplied splint Gregory Dr. Alberton necessary. that no further treatment was Nykkole’s gave parents left arm and her was September On up appointment. a follow Dr. date for *5 again brought Mary’s emergency to Saint Alberton and other medical staff members Sabryna her mother Koob. Koob room Nykkole August on 17 were who had seen told the medical staff who attended to extensively at trial about the questioned Nykkole that she was concerned because Nykkole decision to send home with her Nykkole had vomited least ten times day. Dr. Julia Rosekrans parents day “sleeping and was a lot.” Koob questioned Nykkole’s par- that she stated Nykkole symp- stated that had no other hu- injury. ents about the Because again toms. Dr. Rosekrans examined commonly the most fractured merus is Nykkole, spending per- almost an hour type bone in child abuse cases and this of forming physical a full examination and infants, injury Dr. is uncommon Rosek- feeding Nykkole water and infant formula. initially suspected rans indicated that she Dr. Rosekrans stated that she observed no suspicion, of child abuse. As result this symptoms concluding other and—after Rosekrans, Alberton, Dr. Dr. and Dr. Sa- Nykkole bug had a stomach her —sent Brandt, resident, ques- rah all pediatric home with her mother. Nykkole’s parents injury. tioned about the later, 15, 1997, days September Four on ques- Dr. that after Rosekrans stated again brought Nykkole Koob to Saint Rossini, tioning she and other staff mem- Mary’s emergency Nykkole room. was story the acci- bers believed his because listless, pale, “acting spaeey,” smacking precise dent he described would cause the lips, jerking leg. her and her left arm and injury Nykkole and type of suffered be- yellow/green She also had a bruise on her story consistently cause he told the to Dr. Radiologi- head and a swollen fontanelle.1 Dr. it in an Alberton and Brandt and told mul- testing Nykkole cal revealed that had unrehearsed manner. Dr. Rosekrans stat- fractures, fractures, tiple multiple skull rib experience, ed that based on her when parents injuries legs. abusive describe to their and fractures to both She was also change diagnosed suffering bleeding children their stories tend to with as from top damage. spot 1. The fontanelle is the soft on the of a brain baby's sign head. A swollen fontanelle is a of treating infarctions.2 The kole’s physicians inju- brain and brain caused her frac- healing of to some of the rib alleged amount ries. The Beckers that Mayo’s apparent made it that the fractures tures negligence included: September emergency predated the (a) adequately failure to аssess and doc- room visit. Koob asserted injuries ument associated with inten- bathtub, Nykkole’s her on the but hit head trauma; tionally afflicted explanation found this treating physicians (b) recognize failure to and treat signs Nykkole was admitted to the implausible. symptoms and head trauma an diagnosis unit with a intensive care infant a history suspicious with Baby Syndrome. Shaken injury; traumatic and Following Nykkole’s hospitalization (c) failure a mandatory reporter as treatment, custody Nyk- the state took abuse; report suspected child her in care with placed kole and foster (d) failure to have in place hospital poli- Nancy and Michael Becker. petitioners requiring cies hospital personnel to arrested, tried, charged, Rossini was comply mandatory reporting with third-degree convicted of first- and assault requirements; injuring Nykkole. The district court (e) failure to monitor hospi- activities of in prison. Rossini to 180 months sentenced tal compliance staff to assure trial, At Koob admitted that she Rossini’s child abuse. story Nykkole hitting up made about her head on the bathtub because she (c), (d), allegations moved to strike custody Nykkole. feared she would lose (e) grounds there is no pleaded guilty endanger- Koob to child private civil cause of action for failure tо each had ment. Rossini Koob their report suspected child abuse. The Beck- *6 were parental rights terminated and or- motion, opposed relying ers the on cases $58,685 jointly pay the in dered to Beckers jurisdictions, from other expert testimony, subsequently restitution. Beckers journal argue and articles to that a physi- adopted Nykkole. diagnosing cian’s standard of care includes
Nykkole,
ten-years-old,
who is now
will
authorities,
reporting
abuse to outside
never function above the level of an infant.
and this standard in turn creates a com-
walk, talk,
up,
She cannot
sit
or feed or
duty
part
physician
mon law
on the
of the
expectancy
dress herself. Her life
has
report
to
the
to the prop-
significantly
been
reduced
a result
as
of
granted
er authorities. The district court
injuries,
long
her
and as
as she lives she
strike,
Mayo’s
relying
motion to
on the
require
spe-
will
24-hour medical care and
Ap-
conclusion of the Minnesota Court of
undisputed
cial medical
It
equipment.
Putnam,
peals Valtakis v.
Nykkole’s
disabilities resulted from 264,
(Minn.App.1993),
that the Minne-
injuries
diagnosed
discovered and
(“CARA”),
Reporting
sota Child Abuse
Act
15,1997.
September
626.556,
statutory
§
Minn.Stat.
created
Mayo,3 alleg- duty
report suspected
In
abuse but did not
Beckers sued
ing
negligence
part
Nyk-
on the
of
creatе a civil cause of action for failure to
regions
Department
2. Brain infarctions are
of dead or
3. The Minnesota
of Human Ser-
vices,
Beckers,
dying
recovery
tissue which are the result of a sudden
along with the
seeks
supplying
obstruction to
blood circulation
expenses
of medical and other
associated with
part
body.
the involved
Schmidt’s At-
Nykkole’s treatment and care.
(1981).
torneys’ Dictionary of Medicine 1-30
sought
The Beckers
review the court
the district court
Subsequently,
do so.
(1)
appeals, arguing that
the district
in limine to exclude
granted Mayo’s motion
reporting-
court’s erroneous exclusion of
Mayo’s reporting
all evidence related
effectively
their
related evidence
abolished
abuse to outside authorities.
Mayo
claim that
breached its
common law
discretionary
In
review
petition
(2)
abuse;
Nykkole’s
duty
chal-
appeals,
the Beckers
the court
special
relation-
Mayo’s physicians had
lenged
court’s order to strike
the district
a common law
ship with
and thus
appeals
allegations.
their
The court
protect Nykkole
from the criminal
review, and the district court then
denied
father;
jury’s
of her
conduct
presenting
the Beckers from
prevented
solely
verdict was based
on er-
causation
Mayo’s failure tо
any evidence at trial of
Mayo,
at trial. Becker v.
No.
rors of law
Nykkole to out-
report suspected abuse of
(Minn.
A05-45,
3527163, at *1
2005 WL
The district court did
side authorities.
2005).
Dec.27,
App.
present evidence re-
allow the Beckers to
21, 2005,
parties had
April
On
after the
garding
Mayo’s physi-
services available to
principal
filed their
briefs with the court of
social,
cians,
family,
including
psycho-
filed their
appeals but before
Beckers
logical services that could have assisted
brief,
reply
we issued our decision in Rad
diagnosing
treating Nykkole.
Freeborn,
County
ke v.
N.W.2d
(Minn.2005).
Radke,
In
we held that a
trial,
jury
After a two-week
found
“negligence
cause of action exists for
neg-
negligent
had been
but that its
investigation
neglect
of child abuse and
Nykkole’s
ligence was not a direct cause of
reports
required under
[the
as
CARA
injuries. The Beckers moved for a new
Reporting
Abuse
Act].”
Child
trial,
they
deprived
asserting
were
brief,
reply
In
the Beckers
799.
their
jury’s
a fair trial and that the
verdict was
argued
“topples
the Radke decision
supported by
The dis-
evidence.
upon
the foundation
which the district
motion, concluding
trict
court denied
negligence allegations
court struck” their
law cause
again that there was no common
at trial.
and excluded
evidence
of action for failure to
child abuse
Minnesota and that
the verdict was rea-
Following
argument,
oral
the court of
*7
motion,
denying
sonable.
In
the Beckers’
decision,
unpublished
in an
af-
appeals,
Mayo’s
acknowledged
argument
the court
firmed the district court’s denial of the
proof
that
the Beckers’ offer of
of what
Becker,
Beckers’ motion for a new trial.
if
protection agents
child
would have done
at *6. The court first
WL
Nyk-
suspected
contacted about
recog-
that
in Radke
noted
our decision
kole was insufficient
to warrant a new
liability
investigate
nized civil
for failure to
argument
trial. The court noted that this
reported,
it has
not for
abuse after
been
merit,
had some
the Beckers never
as
report suspected
failure to
abuse.
Id. at
protection
call a
as
offered to
child
worker
*3-4. The court concluded that the cases
part
proof. But the court
of their offer of
jurisdictions, expert testimony,
from other
concluded that the Beckers had neverthe-
journal
by
articles cited
the Beckers
theory
liability
less made their
“abun-
unpersuasive and held that there is
were
dantly clear” and therefore the court stat-
of action in Minneso-
no common law cause
denying
report suspected
ed that
it was not
the motion
ta for failurе to
child
insufficiency
based on the
of the Beckers’
abuse.
Id. at *4. The court also concluded
“special relationship”
had no
proof.
offer of
rejected
give
that would
rise to a
those states have
efforts to
impose
liability by implication.
Finally,
Id. at *4-5.
civil
duty
report.
that,
reporting-related ev-
court held
while
A. CARA
trial,
admissible at
idence would have been
prejudice
its exclusion did not
Beckers’
Construction of a
a
statute is
le
they
ability
gal question
to establish causation because
that we review de novo. Lew
Ross,
testimony
present
still able to
re-
is-Miller v.
were
N.W.2d
(Minn.2006). A
Mayo’s
might
give
own resources that
statute does not
rise
garding
to a civil cause of action
Nykkole’s injuries.
Id. at
unless the lan
prevented
have
guage of the
it
explicit
statute is
or
can be
*5-6.
by
implication.
determined
clear
Larson
petition
the Beckers’
for
granted
We
Dunn,
(Minn.
v.
47 n. 4
N.W.2d
(1) whether
review of three issues:
CARA
1990).4
is an elemental canon of
“[I]t
statu
creates a cause of action for failure to
tory
a
construction
where
statute ex
(2)
abuse;
suspected child
whether
pressly provides
particular remedy
a
responsibility for
hospital
accepts
remedies,
chary
reading
a court must be
treating
special
a child owes
child
others into it.”
Mortgage
Transаmerica
harm;
protect
her from future
Advisors,
Lewis,
11, 19,
Inc. v.
444 U.S.
there is a common law cause
whether
(1979).
100 S.Ct.
port,
tort).
recognizing the
Vieth,
I.
Passover in Minnesota:
Victor
Unequal
and the
Reporting
Mandated
provides
mandatory
that a
re-
CARA
Children, 24
Protection
Abused
Wm.
to be-
porter who “knows or has reason
of
(1998).
131,
being neglected
that a child
or
Mitchell L.Rev.
134-35
Vieth lieve”
is
immediately report
“shall
the infor-
abused
“[coinciding
Kempe’s
also noted that
agency” or local
mation to the local welfare
work, the
Bureau of
[federal] Children’s
626.556,
§
law enforcement. Minn.Stat.
Health, Education and
Department
3(a) (2006). “Mandatory reporters”
subd.
considered a model child abuse
Welfare
doctors, nurses,
workers,
include
social
reporting
developed
statute which was
teachers,
providers,
care
law enforce-
devel-
1963. Two other model laws were
officers,
mandatory
A
clergy.
ment
Id.
* *
By
oped in 1965
Id. at 135.
reporter “who knows or has reason to
states,
Columbia,
fifty
all
the District of
neglected
physi-
believe that a child is
or
Virgin
and the
Islands had enacted some
* * *
cally
sexually
abused
and fails to
reporting
mandated
statute.
Id.
sort of
report
guilty
of a misdemeanor.” Minn.
Today,
a reporting
all states have
statute
6(a) (2006).
626.556,
§
subd.
CARA
Stat.
penalty
failing
a criminal
for
imposes
says nothing
penalties
civil
for fail-
about
report
child abuse as a means to enforce
report.
ure to
Singley,
the law. Steven J.
Failure
text is
We conclude
CARA’s
Report Suspected
Abuse:
Lia-
Child
Civil
unambiguous.
plain language
bility
Reporters,
Mandated
19 J. Juv. L.
lеgislature
statute indicates that the
chose
(1998).
238-39
Statutes
seven
criminal,
civil,
impose
penalties
but not
Arkansas, Colorado, Iowa, Michi-
states —
mandatory reporters
report.
who fail to
Montana,
York,
gan,
New
and Rhode Is-
language
Other
CARA demonstrates
impose
liability. Singley,
land—also
civil
expressly creates civil
legislature
that the
supra,
majority
at 239 n. 12. The vast
liability when it intends to do so.
In the
courts outside of these seven states have
adjacent
immediately
subdivision of CARA
reporting
held that their
statutes do not
6(a),
legislature
to subdivision
created
Regardless
a civil cause of action.5
create
liability
making
civil
a malicious or
do,
of what other courts
we must base our
reckless
of child abuse. Minn.Stat.
public policy
decision on the best
for the
(2006).
626.556,
§
It
5
also did so
subd.
Dunn,
State of Minnesota. See Larson v.
statute,
immediately adjacent
the Vul
(Minn.1990)
39, 44
(declining
Act,
Reporting
Adults
for failure
nerable
tort,
to create a new
“intentional interfer-
a vulnerable adult.
abuse of
(2006).
626.557,
§
7
rights,”
though
ence with custodial
even
Minn.Stat.
subd.
For
(7th
(2004),
Marion,
See,
U.S.,
5.
209
reasons,
rev’d,
(Minn.App.2004),
cannot conclude N.W.2d
forgoing
we
the
of
legislature “implied”
cause
the
Makaio under
CARA and
Makaio’s
B. Radke
father
private
could maintain a
cause of
Radke,
action.
at
798-99. In
Our decision Radke is consistent with
Radke,
analyzed
we
the four factors6 set
respect
conclusion with
to CARA. In
our
Park,
City
forth in
St. Louis
Radke,
held that a
cause of action
we
civil
Cracraft
(Minn.1979),
“overwhelmingly special duty. county owed Makaio a Having concluded that CARA is unam- express intent to legislature’s Id. Given the notwithstanding our decision in biguous safety protection for children provide Radke, normally not address the we county through the immediate action policy issues that the Beckers’ have raised. workers, protection child we said Nevertheless, arguments these fo- because incongruous it is to conclude society through legisla- cus on how we as a criminal legislature impose intended to protecting tive action deal with issue fail to penalties persons on those who children, pol- abused we will address these statute, report as mandated under icy arguments. but intended that there be no argue and several amici Beckers part county depart- welfare purpose that for to fulfill its CARA stated investigate or employees ment or its to children, protecting abused health care reports. act on the providers protec- who are the “first line of holding, In Hoppe. Id. so we overruled tion” for abused encour- children must be Id. at 799. aged report suspected abuse and the acknowledge The Beckers that Radke way to do so is to use the threat of civil fail- only recognized a cause of action for liability. Mayo responds argu- this by county investigate and inter- ure legislature, ment is better directed to the suspected once abuse has been re- vene fact-finding can power which use its ported. they argue But nonetheless prevent determine how to best abuse. only because is the event that investigatory “it is process, can initiate the liability The idea that the threat of civil incongruous legisla- to conclude that inexorably reporting, will lead to increased only criminal impose pen- ture intended abuse, and that this will reduce child has persons alties on those who fail to appeal, appeal may certain but this be as mandated under the statute.” We are illusory. At least one commentator has argument. persuaded the Beckers’ suggested imposing liability civil actually failure counterproduc- is incongruity
Radke reconciled the be- tive, “substantially it because will eontrib- criminal on man- imposing tween sanctions to the case overload of Child Protec- ute[ ] datory reporters imposing no sanc- tive Services and to unsubstantiated [ ] investigators. tions whatsoever on But reports, ultimately against which work incongruity impоs- there is no manifest criminal, civil, danger.” Singley, supra, children ing liability but not on man- Here, datory tragedy 237. We are not unmindful of the reporters. legislature however, society; encourage reporting chose to child abuse our law, in- important child abuse with the threat of criminal this area of the where alone, liability and we must assume that terests are at stake and the effects of an unclear, legislature good doing expansion had reason for of the law are we leave legislature fact-finding so. it Accordingly, we conclude that Radke to the with its liability explicitly by implication sup- power does not to determine whether civil port appropriate. the Beckers’ claim that we must rec-
211 II. argue that CARA’s Beckers also force man- lack because penalties criminal next Beckers’ claim We address the ever, rarely, prose- if datory reporters are Mayo “special relationship” had a prose- actual Although the lack of cuted. Nykkole duty protect that created a to her report failure to child abuse injuries cutions for from further at the hands of her that no such parents. it not influence our asserts rela- may troubling, be does it tionship existed and that had no such Beckers do not analysis in this case. The duty. found, cite, any precedent have not and we liability to create civil
allowing our court matter, Mayo argues As a threshold executive branch is not because the state special the Beckers forfeited the relation- enforcing the criminal law. adequately by it ship argument raising before the district court. have stated that theo- We and amici also refer The Beckers ries not raised at trial cannot be raised for 4(a) (2006), 626.556, § subd. Minn.Stat. appeal. the first time on v. Stumne Vil- policy argument of their we support Gas, 551, 553, lage Sports & 309 Minn. 243 mandato- recognize liability civil for should (1976). Further, N.W.2d 330 4(a) under CARA. Subdivision ry reporters appeals party court of has held that “[a] good immunity civil and criminal grants may not raise an first issue for the time reporters faith of child abuse. The Beck- Trusteeship a motion for new trial.” In re immunity of civil grant ers assert that this Williams, Trust legislative impose intent to demonstrates hand, (Minn.App.2001). On the other we liability report civil for failure to abuse. degree have held “[t]he 4(a) grants civil disagree. We Subdivision imposed on a party care is fundamental says it immunity report; to those who objections to instructions relative law report. fail to If nothing about those who assigned could be for the first time thereto had intended to create legislature civil in a motion trial.” v. for new Urban Min- liability report, for failure to we would Co., 1, 4, Ry. 256 Minn. neapolis St. immunity expressly expect provision (Minn.1959); see also N.W.2d immunity civil for such a failure. disclaim Gottsacker, Marriage Gottsacker (Minn.2003) anything, express If the absence of an (noting that 3(a) consistently held appeals disclaimer affirms what subdivision the court of has theory post-trial that a motion based on a legislature clear—the did not intend makes at trial is recovery properly not raised liability report for failure to impose civil denied, analyzing but the merits of the addition, child In there suspected abuse. anyway). proceeding, In this claim pre-existing liability civil from ample appeals special court of held that the rela- immunity provision provides which properly before it be- tionship issue was abuse, Physicians report for shelter. who cause the Beckers raised the issue their example, ordinarily face civil liabili- support of Law in of their Memorandum ty violating doctor-patient confidentiali- Becker, trial. motion for a new WL ultimately ty making or for *4; Civ.App. see Minn. R. P. turns out to be unfounded. (stating appeal 110.01 that the record on reasons, foregoing For all the we hold in the trial papers consists of all filed a civil cause of court). that CARA does not create important Bеcause the issue is failure fully parties, action for both we has been briefed will address it. abuse. (3)
Substantively, Mayo argues senger; innkeeper guest; pos- that there is special relationship open no between of land who holds it to the sessor *12 (4) Mayo Nykkole was harmed at invitee; and because public and where either home, hospital. not at the The court of required by one who is law or one who that appeals agreed, noting hold- “[c]ases voluntarily custody takes of another under a relation- ing hospital special that a has as deprive circumstances such to the other ship patient with a are limited to situations opportunities protection. of his normal for patient was admitted and where (Second) § Restatement of Torts 314A by custody in the harmed others while (1965).8 recognized be that “[I]t should Becker, 3527163, hospital.” 2005 WL itself, ‘duty’ only is not sacrosanct in but is that it was “no acknowledging at *5. While expression an of the sum total of those decision,” easy the court reasoned policy considerations of which lead the law “Nykkole in because was not harmed while say that plaintiff pro- to is entitled to custody hospital of the but was harmed Keeton, al., 53, § supra, tection.” et at custody parents,” while in the of her there 358. special relationship. was no Id. special We have considered assertions of duty ques The existence of a is a in In relationships several cases. Whitte- v. tion of law we decide de novo. Larson more, park manager we held that a trailer (Minn.1985). Larson, 373 N.W.2d duty a to report did not have to outside general common law rule is that a residing authorities that children in the person duty give does not have a to aid or park being sexually were abused. protection to or to protect another warn or N.W.2d 708-09. We noted party’s others from harm caused a third park manager accept did not the children’s Lohmar, Delgado conduct. v. 289 N.W.2d entrustment, in the children were not (Minn.1979). An exception 483-84 manager’s custody, and that the man- general this rule harm arises when the ager exercised no control over the chil- special relationship foreseeable7 and a ex daily Similarly, dren’s welfare. Id. ists between the actor and person Donaldson, we held the YWCA owed seeking protection. Erickson v. Curtis duty prevent no residents from commit- (Minn. Co., Inv. 447 N.W.2d 168-69 ting suicide because the YWCA had no 1989). duty These circumstances create a custody guests guests or control of its protect. Young In Donaldson v. Wom dependence had no on the YWCA. 539 Ass’n, “[t]ypically, en’s Christian we said: Herman, Harper at 793. In we N.W.2d plaintiff particularly is in some respect special relationship found no a between dependent vulnerable and on the defen guest, boat owner and duty his and thus no dant, power who turn holds considerable on the boat dangers owner warn of the plaintiffs over the welfare.” 539 N.W.2d diving (Minn.1995); shallow water. 499 N.W.2d H.B. see also ex rel. (Minn.1993). Whittemore, Clark v. We observed that (Minn.1996) (Second) (citing guest particularly was not vulnerable and Restatement (1965)). power § of Torts cmt. that the boat owner had no 314A b The Re over the recognizes types special passenger’s statement four welfare and did not stand to relationships: common pas- gain financially by having carrier and him on the boat. argued 7. position has not harm to 8. The Restatement takes no further as to may special whether there be other relation- was unforeseeable. 314A, ships. § Caveat. Erickson, weigh held that in favor of recognizing special But in we Id. at 474. relationship in this case. A “unique opportunity two-month old because unquestionably child is vulnerable. Fur- criminal activities” criminals their ther, an abused ramp owner owed two-month-old child is un- ramp, parking parking likely to come into contact with other to use reasonable care deter mandatory reporters such as educators or activity рremises. on its criminal clergy, completely dependent and so is at 169. treating physicians her to discover and scope considered the We have also *13 prevent Nykkole further abuse. could not patient by hospital. a a the duties owed said deprived ordinary be to have been 252 Minn. Hosp., Clements v. Swedish See however, protection, means of because she (1958) (holding that any never had such means. responsibility not assume hospital does patient’s of a mental distur- treatment hand, On the other Whittemore attempt a suicide when leading bance to suggests that special there was no rela patient the is admitted for treatment It tionship unlikely Mayo here. is that in acci- injuries sustained an automobile accept authority intended to absolute over dent); Sylvester Hosp., v. Northwestern Nykkole; Mayo only intended to treat her Minn. injuries presented. for the discrete she (1952) (holding hospital that a is liable for Mayo Nyk- did not exercise control over damages by patients suffered one of its daily kole’s parents welfare —her did. patient when another assaults her because Furthermore, recognizing the cases a spe by the reasonable care to be exercised {Erickson, relationship cial Sylvester, and always propоrtion to hospital “must be Mesedahl) by all involve some control inability patient’s to look after his own harm-causing agent. defendant over the safety”); Hosp. Mesedahl v. St. Luke’s Mayo had no control over Rossini’s actions. Ass’n, 194 Minn. N.W. present The facts this case a close and (holding hospital duty that a has a to use question. Ultimately, difficult we conclude prevent patient’s reasonable care to sui- that, by harm Nyk- because the suffered reasonably prudent person cide if a under hospital kole was suffered outside the anticipated the circumstances should have party Mayo the hands of a third could not attempt). ap- a suicide As the court of control, Mayo accept and because did not observed, peals Sylvester and Mesedahl custody Nykkole, special relationship no inpatients hospital involved over whom the was formed. custody degree. impor- had to some More tantly, duty on the those cases identified III. protect patients to from harm that
hospital Our conclusions that CARA does not hospital occurred at the and was within the create a cause of action for failure to civil hospital’s control. that suspected child abuse and consistently relationship Mayo special The faсtors we have exam- did not have a pro- to a to special giving ined when confronted with a rela- with rise tionship vulnerability inquiry. claim are the and tect her from harm do not end our individual, Nykkole’s dependency power of the The Beckers also assert defendant, treating deviated from the ex- by degree physicians exerted and the pected professional standard of skill and deprived to which the defendant has ordinary protec- reporting suspected care plaintiff of her means claim arguably tion. of these factors abuse to outside authorities. This Some from the civil cause of action based no common law cause of action for failure distinct rejected that we above. report suspected on CARA child abuse. Although the district court did not strike (e) (c), (d), striking Nor did counts action, the Beckers’ common law cause complaint require from the Beckers’ Mayo’s all granted it motion exclude reporting-relat- district court to exclude all a result of reporting-related evidence. As (b), ed evidence from trial. Count which ruling, prevented the Beckers were this alleged Mayo negligent “failing was Mayo failed introducing from evidence recognize signs symptoms and treat accepted to conform to standards of medi- history of head trauma in an infant with a practice by failing report Nykkole’s cal injury,” of suspicious sup- traumatic suspected abuse. Because the Beckers of evidence that re- port introduction jury argue were unable to to the porting suspected child abuse to outside Mayo reported have should part accepted authorities is treat- abuse, they only argue could injuries suspicious ment of in children. As failing indefinitely negligent was hos- *14 response the Beckers noted in their to Nykkole. The Beckers pitalize assert Mayo’s in limine to report- motion exclude ruling preju- the court’s “distorted and evidence, ing-related the fact that CARA huge gap diced the entire trial and left a statutorily liability does not create civil for picture,” it im- the causation which “made report suspected failure to child abuse jury possible for the to connect the dots preclude the does Beckers from “ad- Respondent’s negligence between and the dressing government reporting the of issue abuse inflicted.” many at trial insofar as it concerns the options treatment to available defendant
An error in the exclusion of evi fulfilling keep Nykkole its Becker grounds ap dence is for a new trial if it safe.” pears “might reasonably that the evidence changed have the result of the trial if it appeals The court of concluded that evi- Poppenhagen had been admitted.” v. Mayo’s report dence related to failure to Co., 73, 79-80, Minn. Sornsin Constr. 300 admissible, abuse was but held that its (1974). 281, 220 N.W.2d 285 “Where a exclusion was harmless because it was un- facts[,] rejection case is close on the of likely jury’s influence causation competent and material evidence is revers analysis: Wasnie, ible error.” Kellett v. 261 Minn. jury could have been told [T]he about (1962). 440, 450, 112 N.W.2d evidence, thereof, or lack strike, granting Mayo’s In motion to jury gotten as relevant. The would have Valtakis, district court relied on picture respondent fuller and would Bruegger, N.W.2d at and 497 N.W.2d prejudiced. jury not have been at 262. Valtakis held that does not CARA simply picture would have had a of liability create civil for failure to is,” meaning, happened. “what what suspected child abuse. 504 at 267. N.W.2d that, Having said we do not find revers- In Bruegger, we held that the Crime Vic- ible error. Reparations tims Act does not create 2005 WL at *5.
private against cause of action law enforce- agencies ment that fail to disagree inform crime We with both the district court victims of the rights reparations. appeals. to seek and the court of We conclude that at grantеd N.W.2d 260. It does not follow the district court erred when it from holdings Mayo’s reporting-related either of these that there is motion to exclude Carolyn accepted of Dr. Levitt that medi- requires a evidence, this error report Nyk- of this evi- practice required admission cal trial because new reasonably changed the have might proper kole’s abuse to the au- dence conclusion trial. reach this We result thorities and that such a would have following reasons. Nykkole’s led to immediate removal from custody. Koob and Rossini’s The Beckers proof A. Offer anticipated testimony also submitted matter, Mayo ar As a threshold that “reporting Dr. Allen Walker the sus- made no offer the Beckers gues pected September abuse would [on 11] county calling the earlier proof that likely investigate have led authorities to An offer Nykkole’s abuse. prevented have protect pending the child the abuse and to motions for prerequisite is a proof investigation subsequent findings appeals based on exclusion new trial of abuse.” 103(a)(2); R. Evid. State Minn. evidence. Mayo’s In motion in Educ., response
v. Bd. of
(Minn.1979).
reporting-related
all
limine to exclude
evi
practice,
“In
Minnesota
dence,
attorney
prof
apparently
an
to make
the district court
ruled
permit
courts
bench,
of a witness’s
by informing
following
the court
from the
a conference
fer
State,
testimony.” Santiago
chambers,
expected
regarding
no
evidence
(Minn.2002).
“If the
possibility
reporting suspected
brought to the attention
problem has been
government
authorities would be
court,
court has indicated
and the
*15
of
After trial —in its denial of
permitted.9
are, to
terms what its views
no uncertain
for a new trial —the
the Beckers’ motion
objection
exalt form over
require an
would
have
“plaintiffs
district court noted
Lane, 582 N.W.2d
State v.
substance.”
abundantly
throughout
made it
clear
(Minn.1998).
256, 259
case,
theory of
litigation of the
what their
* * *
liability
what it relies on.
is and
raised the failure
The Beckers
reason,
denying
For that
the court is not
After the district
complaint.
claim in their
insufficiency
trial motion on the
the new
Mayo’s motion to strike
granted
court
More
proof.”10
timeliness of the offer of
(c), (d),
(e),
and
the Beckers submit-
counts
actu-
the record reveals what
anticipated testimony
importantly,
ted
affidavit the
Brueg-
conclusion that Valtakis and
than clear on
erroneous
The record before us is less
9.
point,
ger preclude
as there is no order or memoran-
common law claim
this
the Beckers'
Mayo’s motion in
dum from the court on
report suspected
child abuse.
for failure
apparently
limine and as the Beckers' counsel
words,
appears
it
that the district
In other
that, as a
pretrial
in
discussions
conceded
implicitly
the Beckers’ offer
court
ruled that
ruling
applicability
result of the court’s
notwithstanding
proof
be sufficient
would
CARA,
"present or
the Beckers would not
testimony
Olmsted Coun-
the absence of
from
any testimony which
claim that it
elicit
they might
protect-
ty
have
authorities on how
anything
reported or
like
should have been
dissent,
Nykkole.
we do not
ed
Unlike
respect
governmental reporting.”
that with
Nonetheless,
implicit
court’s
rul-
conclude that the district
undisputed
apparently
it is
ing
of discretion. See
constitutes an abuse
evidentiary
precluded by an
the Beckers were
("We
Santiago,
required physicians of all that degree testimony of Dr. Allen that Walker possessed skill and care arising exercised “the standard of care from the practitioners engaged type in the same of physician-patient relationship between the practice under like Nykkole required circumstances. Lund defendant and defendant Eustermann, gren v. hospitalize Nykkole inju- 880 to for care of her tests, ries, perform diagnostic additional trict court concluded aas matter of law that applicable to the standard of report professional and to reporting abuse, care did not include proper authorities.” The Beckers also of- Supreme the California testimony Carolyn fered the of Dr. Levitt Court re versed. Id. 394. The California Mayo “failed to meet even minimal court held that profes because the standard of protecting Nykkole standards care siоnal care in a child abuse case was not a The Beckers also ongoing from abuse.” matter “within the common knowledge of referenced, part proof, as of their offer of layman,” plaintiff was “entitled to journals statements from medical the opportunity prove by way expert possible physicians report “should willful testimony that in the circumstances of this police department any trauma to the or a reasonably prudent case physician would special protective children’s service that procedures.” have followed those Id. (C. community” Henry in the operates Kempe, Syndrome, The Battered Child Here, important it is to note that our (1962)) J. Am. Med. Ass’n and conclusion that the present- Beckers have [suspected “should cases of mal- a prima ed facie case of malprac- medical to the child protective society treatment] only tice that they means are entitled to community his to the law enforce- present jury. case to a Our conclu- agency appropriate pro- ment action to sion preclude Mayo present- does not from (Vincent Fontana, al., tect the child” J. et ing physicians evidence that its acted with Syndrome” “The Maltreatment in Chil- ordinary skill and carе or Nykkole’s dren, Eng. 269 New J. Med. 1393 injuries biological and her parents’ behav- (1963)).11 ior were such that failure to suspected child not a abuse was deviation foregoing evidence have al- from the standard of care. jury lowed a reasonable to conclude that the accepted required standard of care If the Beckers are entitled to Mayo’s physicians report Nykkole’s sus- present a medical malpractice claim for pected abuse. The evidence relevant was report suspected failure to child abuse to a (b) to the Beckers’ claim in count jury, question arises whether CARA’s appropriately Nyk- failed to treat may mandate be introduced as injuries, kole’s and we conclude that it was evidence of the to report. We have error to exclude this evidence. hospital held that rules are admissible as Flood,
We find Landeros v. 17 Cal.3d evidence of the standard of care in a com *17 (1976), Cal.Rptr. 131 551 P.2d munity. requiring presence “A rule the Landeros, instructive. In an a physician-assistant major operation abused child at a brought emergency was to the room with accepted practice is evidence of medical signs community obvious of abuse. Id at 391. The the adopted which it was hospital did not report staff the abuse to and therefore is relevant and material n * child, authorities and released the malpractice after medical action Bo Garber, which the abuse continued. Id. In a suit land (Minn.1977). against hospital damages, the the dis Such rules are not conclusive (Minn.1973) Syn- (noting 11. We note that also Battered Child that recognized diagnosis, drome is a medical so Syndrome diag- Battered Child was medical malpractice the Beckers' medical claim is not recognized in the late nosis first 1950s premised on a novel or unusual theo- medical 1960s). early Loss, 271, 279, ry. See State v. 295 Minn. Id; injuries. prevented Nykkole’s see also have negligence. the issue of on Carroll, agreed: A.2d 355 Md. district court Bentley v. finding of viola (holding that measures jury knew full well what [T]he the reporting requirements of tion of the Nykkole Beck- protect were available to Maryland Abuse Act would be evi Child Mayo that er from further abuse and rule of negligence). Under the dence of advantage take of them staff did not
Boland, reporting requirement is CARA’s the threshold they because did not reach physician as evidence that admissible August 17 or diagnosing abuse suspects patient that a ordinary skill who That the Plain- September 11. case will the is the victim of abuse try. They were tiffs were entitled to to outside authorities. suspeсted abuse unhampered in their efforts to do so. C. Causation Thus, “only” that excluded thing the was con- analysis Mayo does not end with our the fact that did not alert out- Our was evidence clusion that the was side authorities. a new erroneously require excluded. To negli- If we could certain that the be trial, wrongfully excluded evidence the Mayo’s gence jury the was identified must have had a reasonable likelihood Syn- diagnose failure to Battered Child jury’s the verdict. affecting drome, jury imply this would that the did reporting-related that We believe in- hospitalizing Nykkole not believe that evidence had a reasonable likelihood inju- her definitely prevented would have jury’s in this ease. affecting the verdict ries, and it would be difficult to see how present The Beckers were entitled to Nykkole to her and then returning parents jury picture the full of the alternatives county have more calling authorities would In Mayo Nykkole. to treat available effectively Mayo points protected her. As stead, Mayo they only argue could that out, however, not know what con- we do Nykkole indefi hospitalized should have jury negligent. duct found to be nitely. average juror We believe there Mayo’s expert own conceded no hospital understand that a has negligent Nykkole’s documentation in was authority an infant inherent to confine jury possible records. It is that the found parents’ her consent and that the without aspect Mayo’s care this or some other enforcement au hospital must contact law negligent but it would have found Therefore, theory thorities to do so. differently reporting-related testimo- actually by the Beckers at trial— advanced ny possible and evidence. It is also Mayo negligent failing to hos was jury Nykkole’s symptoms found that Nykkole indefinitely have pitalize —would justify hospitalizing did not her indefinite- appeared implausible.12 somewhat ly, they justified have found that but would county notifying proper authorities. We con-
Mayo argues that did evidence any prevent reporting-related clude greater have resources had, reasonably changed jury’s Nykkole’s might than itself so have *18 analysis; county to the would not standard of care causation reporting and/or higher degree certainly immunity provi- would need a much of 12. We note that CARA’scivil physician good- protects confining protect who makes a sion a child to her from before abuse, report suspected physi- of not a faith reporting suspected than before the abuse cian who confines a child based on mistak- abuse. Thus, physician suspicion en of abuse. therefore, requires our standard of review dence was made known to the by court apparent trial. offer or was from a new the context questions within which were asked.” Mayo argues that the causal connection 103(a)(2). Minn. R. Evid. “Where no offer report inju- between failure to proof of is made so that the reviewing resulting extremely ries from the abuse is may pass court relevancy of the true, may tenuous. this be civil While evidence, proposed the exclusion of such liability failure to abuse in report exists for prejudicial evidence is not error.” State v. contexts, notably other under Vulnera- Educ., Bd. 528 n. 3 of Act, Reporting ble Adults so the issue (Minn.1979). “Even if of testi [exclusion beyond capabili- cannot be said to be mony] discretion, were an abuse of we that, jury. point ties of a Amici also out if would be unable to determine if it was report a cause of action for failure to prejudicial inasmuch no offer proof as permitted, comparative principles fault testimony was made as to what wit [the may joinder result of other manda- Luta, give.” ness] Wozniak v. tory may reporters who have seen the 234, 241, 103 (1960). Minn. true, may abused child. While this also be primary requiring reason for an offer according it is not an issue to the record in proof is so the сourt on can appeal jettison this case and it is not a reason to understand from the record the scope and the Beckers’ of action. entire cause proposed effect of the evidence consid report- We hold that the exclusion of the ering whether its exclusion was proper. ing-related requires evidence reversal and Strong, John William on Evi McCormick grant trial. of a new (4th ed.1992). dence, 195-96 in part, part, Affirmed reversed in argue The Beckers in their brief that remanded. they “were clear from beginning reporting evidence of crucial prove was PAGE, J., part no in the took their negligence common law claim.” I consideration or decision of this case. agree that the Beckers made clear the ANDERSON, BARRY, dissenting. G. case, centrality reporting to their but they I I what did not make clear—and were respectfully agree dissent. with the majority required to—is how earlier that CARA does not create a civil prevented Nykkole’s injuries. would have cause of action for failure to sus- agree majority I with the that the pected require- child abuse and that had no ments for an offer of special relationship Nykkole giving proof high, are not duty protect rise to a harm but Beckers did not meet even their her from the minimal burdеn here. majority, that she suffered. Unlike however, I question would not reach the After the district court struck the three by whether the district court erred exclud- complaint, counts from their the Beckers ing evidence of a common law anticipated submitted affidavit the testi- because the Beckers did not make mony physicians. Carolyn of two Dr. Lev- proof report- sufficient offer of that earlier expected testify itt was that failure to ing prevented Nykkole’s inju- would have report suspected child abuse was a breach ries. care, Mayo’s and that “the standard trial, required report
Where a court excludes evidence at abuse to may predicated upon proper error not be the ex- authorities would have led to imme- clusion unless “the substance of the evi- diate removal of from her birth *19 executed, successfully way proceed one Dr. Allen Walker was custody.” parents’ these circumstances would have expected under testify that the expected also the present the district court with and that been of care was breached standard testimony of an Olmsted Coun- anticipated like- suspected abuse would “reporting the Protection worker as to what investigate ty the Child authorities to ly have led report suspected are taken when a of pending steps protect the child abuse and long the child abuse is made and how subsequent findings of investigation and assert, typically takes. That offer of investigation and The affidavit did not abuse.” established, have been made numerous proof that Drs. could nothing in the record including direct examination of the any knowledge ways, or had Levitt Walker jury presence practices or witness outside County’s resources Olmsted or, here, simply by counsel probably child more investigating allegations of for Indeed, the identified witness would outlining what alleged victims. protecting if called. this informa- anywhere testify in the rec- Without no indication there is tion, presented, this court can and had however that Drs. Levitt Walker ord any fa- only speculate about what witness County on similar worked with Olmsted County Protec- conclusory miliar with Olmsted Child These two statements matters. would have testified to and personal no tion Unit professed who witnesses testimony would have allowed County author- whether this knowledge of how Olmsted jury that earlier re- Nykkole consti- a reasonable to find might protected ities have prevented Nykkole’s have entirety porting of causation would proof tuted the injuries. court before trial. offered to the district assertion, majority’s trial, Contrary attached an affi- to the After the Beckers Nykkole taken from her bio- a new trial in fact that was davit to their motion for after she arrived at the attorney logical parents stated that she had “on which an 15, emergency September room on with employees occasions contacted several injuries not County catastrophic, permanent Protection does Child Unit Olmsted happened what would have if inform us of about their involvement suspected child abuse had been report and that she had “discussed Becker’s case” August Nykkole present- when procedures place filed on policies arm, September a broken or on and how Child ed with Child Protection lethargic. vomiting to when she was likely responded Protection would have anticipated frame light of Some idea of the time Nykkole’s particular situation response by appropriate govern- policies procedures.” Based on for those conversations, attorney agency suspected ment to a these stated Beckers, allowed, particularly important if have abuse is here be- jury Mayo negligent if the found for subpoenaed employees these unidentified cause attorney’s making report August on authori- opinion and thаt in the their that a ties would have had almost a month to testimony would have demonstrated Nykkole, jury if the found protect child abuse would but likely Nykkole’s Mayo negligent September on and not prevented more than have August An authorities would have had injuries. attorney’s opinion, citing con- sources, only days. clusory, unidentified secondhand woefully inadequate proof. offer of is a acknowledge party I that a is not re- many quired actually varieties examine witnesses While there are no doubt State, 644 proof, Santiago that could have been an offer of proof of an offer of *20 (Minn.2002), that a formal PIPPITT, petitioner, Brian Keith unnecessary where proof offer of Appellant, testimony is proposed substance examination, Uhlman cross apparent from Co., Home v. Farm Stock & Minn. Minnesota, Respondent. STATE of (Minn.1914), N.W. required the Beckers were not No. A06-2106. affirmatively causation in their establish Supreme Court of Minnesota. agree I the ma- proof. offer of also already jority that the district court had Aug. 2007. respect
made its intentions clear with
this issue.
Nevertheless, in their preserve order to
right to move for a new trial based on evidence, reporting-related
exclusion of place to somehow required
Beckers were that a suggestion
on the record the witness handling reports
familiar with the County Olmsted prepared testify about the manner
was report may pre- an earlier have which Nykkole’s injuries. The record
vented only conclusory opinions
contains individuals, unsupported
three identified
by any showing that the wit- foundation with, actually experience
nesses had of,
knowledge the relevant Olmsted Coun-
ty proceedings applicable when a I
suspected child abuse is received. would
affirm the district court’s denial of the
Beckers’ motion for a new trial.
GILDEA, (dissenting). J. join
I Barry the dissent of Justice G.
Anderson.