*1 courts suspicion. view them with extreme Aja al., BJERKE, Respondent
26 James Wm. Moore et Moores Fed- (3d ed.2007). eral Practice In 633.05[5][a] courts, federal [a] motion based on a re- JOHNSON, Appellant, Suzette E. ordinarily
cantation is decided without a 633.05[5][b]; hearing. Id. see also 3 al., Wright Charles Alan et Federal Prac- 557.1, (3d
tice and Procedure at 579-80 Bohlman, Kenneth D. Defendant. ed.2004) (explaining judi- the basis for this No. A06-117. cial skepticism). Supreme Court of Minnesota. Minnesota, when witness offers the incriminating withdrawal of trial testimo Dec. ny, evidentiary hearings necessary are purposes evaluating reliability
recantation, justify but to expense
risk of transporting petitioner to an
evidentiary hearing, it seems us that the
petitioner has an obligation to make
greater showing genuine of a recantation See,
than was e.g., made here. Wilson v.
State, 103, 104-05, 107-08
(Minn.2007) (granting hearing jail where
house informant in writing); Op recanted
sahl,
ing recanting based on But see
Ferguson, 645 N.W.2d at (granting
hearing based on notarized statement of a
witness’s father that the witness had con
fessed that he falsely). testified agree We
with the district courts conclusion that the
Grostyan memorandum carries insufficient
indicia of the trustworthiness of the recan
tation to hearing. merit a Accordingly, we
affirm summary Ferguson’s denial of
petition prejudice. but without Ferguson
may petition file new to address this
issue based on a more satisfactory showing genuine recantation of trial testimony.
Affirmed. (N.D.2004) (Courts upon look Cal.Rptr.2d recantation 29 Cal.4th 60 P.3d disfavor.); Roberts, suspicion In re *3 Moriarty, Wetherille,
Dennis P. Kevin J. Jaspers, Moriarty P.A., & Walburg, Shak- MN, opee, for Respondent. Riedy,
John M. Jorun Groe Meierding, Maschka, Riedy Ries, Mankato, MN, & Appellant.
OPINION HANSON, Justice.
The issues presented in appeal are whether a homeowner pro- has tect a child invitee from sexual abuse stay in the and visit Island Farm and for one or two adult resident home another legal capacity During stays, to weeks at the child has a time. these whether the risk of that abuse. Between riding assume children would take lessons and 18, respondent, Aja ages of 14 and learn about In the spring horses. Farm, Bjerke, stayed at Island a horse Aja Bjerke, age began visiting thеn E. appellant farm owned Suzette John- farm, During Island Farm. her time at the son, progressively longer periods. riding performed took lessons and time, Bjerke entered into a During this accompa- basic farm chores. also with Johnson’s adult sexual nied Bohlman Johnson and to horse shows. Mend, D. live-in male Kenneth Bohlman. first visits Island Farm were subsequently convicted of Bohlman relatively short, July 1997 Johnson *4 stemming sexual conduct from criminal permission asked for and received from Bjerke this relationship, brings that Bjerke’s Bjerke parents stay for at Is- action, that negligence asserting Johnson land Farm for two-and-a-half Dur- weeks. from the protect failed to her sexual ing Bjerke the years, next three school granted partial The court abuse.1 district regular visited the farm on a Ini- basis. dismissing summary judgment negli- the tially, Bjerke one or spent two weekends Johnson, against that gence holding claims spent each month at the farm. Then she Bjerke had no Johnson the of 1999 at entire summers 1998 and Bjerke’s assumption of the of that risk September the farm. From of Bjerke’s sexual abuse barred claims 2000, Bjerke through al- spent March of Johnson. The court certified these against Farm every most weekend either at Island appeal. for issues immediate court or with and Bohlman at horse Johnson reversed, granted and we John- appeals Beginning shows. in the spring petition affirm the son’s for review. We Bjerke full-time Farm resided at Island appeals, though slightly court of on differ- in departure until her October of 2001 grounds. ent age 18. presented in Because issues are Johnson admitted she took some motion, summary judgment context Bjerke for when responsibility level glean primarily we from the affi- facts Bjerke stayed Although at Island Farm. in party support davits submitted each Bjerke un- Johnson remained believed But opposition of and motion. control, expected her parents’ der she that, parties agreed have addition to manners, her to tell some- to mind affidavits, in the incorporated the exhibits would one the house whenever she district authorized court was leave, rules ground and to follow Johnson’s rely parties deposition on all of the vulgarity, drinking, and against swearing, transcripts that were filed with the court. boys. said fraternization Johnson limit our Accordingly, descrip- will not we her imposed that she these rules so that specifically tion of the to those re- facts dispar- would reputation name and not be ferred to the affidavits. aged by of those associated the behavior Farm farm Island is a horse owned with her. Johnson, boy- resided with where she friend, acknowledged Bjerke’s Johnson Bohlman. Johnson often invited their keep that she would ages children between the and 18 to believed action, party Bjerke's against were defendant in this is not other claims summary judgment, not addressed and are appeal. on appeal. not at issue in this Bohlman is also daughter injury. safe from partial Johnson also son’s summary judgment dismiss Bjerke’s parents had sign release form ing negligence claims on all three so that she could obtain medical care grounds, but certified the issues for imme necessary. Bjerke’s if mother tes- appeal. diate The court appeals re tified that she relied on Johnson and Bohl- versed, (1) holding that relation man responsible as provide adults to (2) ship shown; had been material fact care she was provide unable to while her precluded issues summary judgment on daughter away. was (3) foreseeability; and the doctrine of as sumption of money paid by apply. Bjerke
No the risk did not family Bjerke’s care, Johnson, v. but Johnson indicated 727 N.W.2d 189-96 money that the was not an issue for (Minn.App.2007). her. perceived Due to what she grant On review of a summary home, family difficult life at Johnson want- judgment, inquire whether there expose ed to her to a “more stable environ- genuine fact; exists a issue of material ment” at Island Farm. Johnson later told (2) whether the district court erred in its Bjerke’s parents that she treated application of law. Lubbers “family.” like Anderson, (Minn. *5 2002, In April Bjerke informed law en- 1995). In reviewing the record for the forcement officials that Bohlman had sexu- genuine existence of a issue of material ally years abused her for several at Island fact, we view the “in light evidence Farm. Following an investigation into most favorable to party against whom Bjerke’s allegations, Bohlman was arrest- summary judgment granted.” O’Mal subsequently ed and convicted of two Bros., ley v. 889, Ulland 549 N.W.2d 892 first-degree counts of criminal sexual con- (Minn.1996). When the relevant material duct and one third-degree count of crimi- facts are not in dispute, the district court’s
nal sexual conduct. interpretation of the law is reviewed de Bjerke admits that she was not forced to novo. Leamington Co. v. Nonprofits’ Ins. engage in sexual conduct with Bohlman at Ass’n, (Minn.2000). 615 N.W.2d any time. She also admits that she never informed Johnson of relationship I. Bohlman, but instead went to “considera- The basic elements a negli of lengths” ble keep the relationship (1) gence claim are: existence duty of a of secret. why When asked she hid the rela- (2) care; (3) breach duty; of that proxi Bjerke tionship, stated that it was because (4) causation; mate injury. and Schman she loved Bohlman and did not want him Wеlls, ski v. Church St. Casimir of of get into trouble. 289, 292, (1954). Minn. 67 N.W.2d Bjerke brought this action alleging, duty existence of a of care is the part, that negligent Johnson was in failing element at appeal. issue Generally, to protect her from Bohlman’s sexual regard existence of a as a abuse. partial Johnson moved for sum- law, question of which we review de novo. mary judgment negligence dismiss all H.B. Whittemore, ex rel. Clark v. claims on grounds that there was no (Minn.1996). N.W.2d special relationship Bjerke between and Johnson, does not assert that the sexual abuse was not foreseeable, negligently Johnson the defense caused the of as- sexual sumption abuse, Bjerke’s the risk barred but that Johnson protect failed to claims. The granted district court result, John- from such abuse. As a spe- (3) the party; to the third or the other play. come into Gener- cial considerations an individual because the other or the imposed on harm is suffered ally, no is harm, when she even undertaking. another from relied on the third protect that action on Inc., realize Taxi, or should “realizes 282 N.W.2d Pagra Air Walsh aid or necessary for another’s (Sec- is part (Minn.1979); [her] 567, 571 Restatement Lohmar, 289 Delgado v. protection.” ond) of Torts 324A Under (Minn.1979). dutyA N.W.2d here, we need consider presented facts (1) however, found, if there will be proteсt types special third only the second and par- relationship between special ais relationships. Er- is foreseeable. ties; and the risk type special relation- As to the second Inv. v. Curtis ickson took cus- ship, Bjerke argues Johnson (Minn.1989). 168-69 tody her under circumstances which Bjerke’s self-protection normal means of Relationship Special A. Although Johnson was were unavailable. to a find prerequisite The first custody Bjerke, there given legal never harm another from ing of a accepted evidence to show Johnson is special the existence of some level of care entrustment A relation parties. special between Bjerke stayed at Johnson’s when under one can be found to exist ship home, par- at a location distant from her arises The first distinct scenarios. three provided Johnson ents’ home.2 parties, such from the status children, adopted rules for and ser with room and board masters “parents and licensees, vants, large had a Bjerke’s of land conduct. possessors welfare, their custom common carriers and over degree of control [and] 483-84; Re Delgado, ers.” indicating that there was a *6 strongly (Second) 314A, §§ 315 of Torts statement the two. See Becker relationship between (1965). an indi The second arises when Found., Mayo 737 N.W.2d required as vidual, voluntarily or whether (Minn.2007) (finding special no law, person “custody of another has hospi- hospital and child because between that other in which circumstances under [the control over tal “did not exercise deprived opportunities of normal person is welfare”); daily Harper, child’s] Herman, Harper v. self-protection.” typical a (noting 474 n. that N.W.2d at (Minn.1993); Restate 499 N.W.2d duty a exists is in which circumstance (Second) § of Torts 314A ment holds “considerable when the defendant as arises when an individual The third welfare”). plaintiffs over the power that duty for a responsibility sumes control that Johnson’s There is evidence par individual to a third by another owed time with the Bjerke increased over over to act ty. example, one has For frequency of length in the increase “undertakes, for gratuitously or he when purposes For Bjerke’s stays at the farm. consideration, services to anoth to render enough it is that summary judgment, necessary recognize he should as er which law, that determine, a matter of as can or his protection of third for the early at least as custody began (1) Johnson’s if liability imposed things,” and will be full for the Bjerke resided when the risk of failure to act increases his farm. summer at the harm; owed he undertook care”) “keeping; guardianship; ''custody” as Dictionary The Random House See added). 1987) (2d (emphasis (defining Language ed. English lutely deprived opportunity rely We also conclude as matter of law that, during at least times parents on her for aid—she could have resided at during full-time the farm and telephoned them from Island Farm or con- 1998, Bjerke after the summer of lacked fided in them when she visited home—the opportunities “normal for self-protection” require op- Restatement does not that all child, because she was a minor living apart portunities self-help for be lost. The Re- parents daily from her and under the care only requires statement have supervision of Johnson. been deprived opportunities of normal for protection, completely not that she have recognize We largely children are lacked dependent parents protection. Only on or other means custodial guardians protection, and that such most extreme of circumstances would ab- dependence is often basis for a solutely deprive ability an individual of her protect. See H.B. ex rel. Clark v. Whitte herself, protect and we do not believe more, (Minn.1996) § that Restatement unduly 314A is so re- (noting that duties to “typically scope. strictive its degree dependence”). involve some argues that our in H.B. decision dependence natural which would forecloses the existence of a rela- have had upon Johnson increased as her tionship under Restatement 314A. stays at the farm progressively became H.B., we determined that manager longer. By 1998, Bjerke the summer of park trailer was not negligent for her fail- long-term was a resident at Island Farm report ure to the sexual abuse of a number consistently and was away family. from her of children a park resident. Although a child who visited Island Farm 706. We based our decision on only sporadically might have been better First, key two facts. we observed that rely able to on parents protection, her “there acceptance by was no manager] [the largely separated was from the entrustment; of the children’s indeed it protection support parents specifically rejected when in- [she] might have provided. otherwise For ex structed the children to tell their ample, parent whose child lives with her about abuse.” [the] Id. at 708-09. Sec- regular on a basis is more able to observe ond, we noted that “the children were not changes various in that child’s behavior *7 in manager’s] custody [the she [and] exer- that signal negative could influence on cised daily no control over their welfare.” the child’swelfare. Id. 709. The court of appeals concluded that no contrast, In Bjerke Johnson took into special relationship existed under Restate- resident, long-term her home as a provid- § Bjerke ment 314A because un- “was not ing place her with a away live from her able to help summon virtue of the cus- family. Additionally, Johnson never dis- tody agreement.” Bjerke, 727 N.W.2d at any responsibility Bjerke claimed for 189-90. The court went on to conclude —to contrary, the Johnson made it clear that “Bjerke had opportunities the same one bringing Bjerke of her motivations for for self-protection under custody Johnson’s stay at Island Farm provide was to her as she did parents’ custody.” under her with a But, more stable environment than above, Id. at 190. could as we noted the Bjerke’s Thus, be found in circumstances of home. residence at Is- substantially dispositive land Farm found in deprived suggest her of a factors H.B. primary child’s protection special source of that a relationship existed between —her parents. Bjerke Although was not Bjerke. abso- Johnson and assumption of custody. into her Johnson’s provides H.B. also note must We Bjerke custody gener- was the care argument for the support little only conclude that self-pro- ous and admirable. We opportunities normal had the H.B., well-meaning, with however assumption, the children resided tection. eventually obligations that they brought legal whom with it John- parents, their had, abuse. 552 N.W.2d have otherwise obli- their sexual son would not reported than summary was older Though prevent sufficient gations at 706-07.3 she was special in H.B. at the time relation- judgment children on the issue abused, her away from sexually ship. she lived of time periods for substantial type Having determined that second Also, it notable is she was abused.
which relationship, as described Re- special perpetrated in H.B. abuse was that the 314A, § has been shown to ex- statement outsider, the same not a member of an ist, it is not clear that we need to address perpetrator of sexu- household. When special relationship as type the third the victim’s inside of al abuse resides § in Restatement 324A and described more home, likely faced with the child is Al- adopted Pagra, 282 N.W.2d report her abuse. pressure not though upon this is the section which influence of subject ongoing to the child is that a based its decision appeals court of her, ability and her who abused existed, do not have special relationship we if be stay jeopardized in the home could majority this court in favor of address- None of these the abuse. reported she 324A, we will and thus ing Restatement implicated were considerations special it. holding concerning make no H.B. Foreseeability B. custody over had Because who, both virtue of Bjerke, special where a relation Even circumstances, age specific and her exists, only imposed if the is ship self-pro- opportunities normal lacked It injury foreseeable. resulting of law tection, as a matter we conclude necessary that a defendant have notice existed from and that a injury occur in which will the exact method of 1998. The decision after the summer clear “if of an accident was possibility court and contrary by the district ordinary prudence.” Con person of to the appeals is reversed.4 court of Hotel, 254 Minn. 381— nolly v. Nicollet it is When Although agree foreseeable, an incident was clear whether shown, we hasten to add been has a matter of the issue as the courts decide com- not mean that Johnson that this does cases, foreseeability is law, but in close by taking Bjerke any wrongdoing mitted *8 special relationship are in dis- op- upon to establish Although briefly touched 3. we H.B., jury. pute be submitted to self-protection present in and should portunities for necessary example, if it were relevant or alrеady that no custodial For determined had special Bjerke establish that a relationship the children and at trial for existed between analy- prior the summer of manager, making any relationship further existed park manager’s duty special dicta. relation- regarding mere conclusion that sis our a matter of law the summer ship N.W.2d at 708-09. existed as See 552 argument preclude the not of 1998 would genuine material fact may be issues of there Although generally stated that the we have law, concerning the earlier existence question existence of is warrant submission of that would possibility that there would foreclose jury. necessary to the issue may in which the facts be situations jury. reserved for the ex rel. believed “very this behavior to be odd.” Whiteford v. Yamaha Motor Corp., 582 This conduct would have occurred around Whiteford (Minn.1998). Bjerke’s seventeenth birthday. Viewing light the evidence in the A most friend of Johnson’s testified that Bjerke, favorable to we conclude that sum- Johnson later saw inap- other instances of mary judgment inappropriate was on propriate behavior between Bohlman and foreseeability. issue of Bjerke. that, This is because early He stated in the win- questions of material fact exist as to spring ter or Johnson came to his foreseeability sexual abuse that oc- home and said that get “she had to out of early 1997, curred Aja between when the house it getting because was too sexual * * * Bjerke Farm, began staying Bjerke], first at between [Bohlman Island and it Bjerke father-daughter and October of when wasn’t a thing, get- left the it was ting farm for the too sexual so last time. she had to leave.” incident, Sometime after this this friend Johnson, The evidence shows that as Bjerke rubbing observed leg Bohlman’s many associates, well as of her friends and kitchen, in full view of Johnson who observed unusual and intimate behavior sitting dining was room. Bjerke between Bohlman and over this Several other acquaintances friends and period. entire inappro- Johnson observed of Johnson observed the priate interaction be- behavior between Bohlman and tween Bjerke Bohlman and suspected Bjerke early as the summer of 1997. something was unusual about their sitting saw Bohlman with his back relationship. One stated that Bohlman couch, up against a Bjerke while sat on the Bjerke “quite were open about a lot of fingers couch and ran her through hair his their emotions.” mother was con- for 10 to 15 minutes. Johnson subsequent- cerned that her daughter’s relationship ly confronted Bohlman to inform him that with Bohlman inappropriate. was That she did not find such conduct aрpropriate. concern was also reinforced the obser- Johnson believed this conduct to be the vations of Johnson’s friends of the interac- “kind of conduct a girlfriend would have tion between Bjerke. Bohlman and opposed exhibited as to a daughter” and may admitted that it have had sexual over- August After the 2000 funeral of John- tones. When Johnson later mentioned this father, son’s another friend saw incident to a friend who county was a child acting and Bohlman in a way that she worker, protection agreed her friend considered to be “too intimate” and that it “inappropriate fourteen-year- for a made her uncomfortable. She also saw * * * girl old to interact with a man in his Bohlman and engage in flirtation way.” fifties that Following her conversa- “many times.” She stated that most of the tion, Johnson felt that she “keep should individuals she spoke to had “observed eyes open.” [her] things” regarding Bjerke-Bohlman re- lationship. Aside from specific these ob- Johnson observed other unusual behav- servations, it also appears that rumors Bjerke. ior between Bohlman gen- generally circulating were regarding eral, she saw that Bohlman and Bjerke and Bohlman. had a “space issue” they when were to- Also, gether. in April of while It particularly notable that even those clinic, judge’s 4-H Johnson saw who spent less time with Bohlman or *9 come around jump her and into Bohlman’s than Johnson had suspicions about lap as he sitting next to Johnson. the nature of their If relationship. those Johnson and a woman seated nearby spent both who little time at Farm Island saw
669 assumption of give “[p]rimary [the] them termed behavior to enough unusual concern, risk,” “only have parties it would be reasonable and arises where cause Johnson, who lived full-time a in voluntarily entered which to infer Farm, well-known, conclu- came to same plaintiff at Island assumes incidental further Hansen, 39, 44, This conclusion is herself. sions risks.” v. 299 Minn. Olson abuse fact that Bohlman’s by the 124, bolstered Primary 216 127 as- N.W.2d short-term, a isolated Bjerke was not of sumption completely negates of the risk a incident, uninterrupted for but continued Id., negligence. defendant’s 216 N.W.2d years. four nearly at 127.5 special relationship a there was
Because
previously
primary
We have
allowed
as-
Bjerke and the evi-
between Johnson
sumption of the risk as a defense to some
of material
genuine issues
presents
dence
involving
actions
minors. See Greaves v.
foreseeability, summary judgment
fact on
Galchutt,
335,
289 Minn.
Minnesota has protecting “depression psychosocial in children from and other disor- strong interest ders, and revictimizatiоn” promiscuity, sexual abuse. This interest is best re- shame, laws, “guilt, phobias, eating criminal which render well as flected our Oberman, prosecutions Regulat- irrelevant in criminal disorders.” Michelle consent See, e.g., ing Sex Minors: for the sexual abuse of child. Consensual With Defin- 609.342, ing Statutory Rape, subd. 1. We have A Role For 48 Buff. Minn.Stat. (2000). 703, can reflecting characterized this law as “the L.Rev. 728-29 Such abuse self-esteem, society higher that feeling general sexual lead to “lower rates of * * * distress, considerably by contact adults with children emotional ele- reprehensible whether or the child vated rates of suicide and self-harm.” Id. consents, ability at that age, plaintiffs because the child at 729. Because incapable giving appreciate danger arising be con- from her should deemed Steinbrink, key component assumption v. 297 sent.” State N.W.2d behavior is (Minn.1980). 291, risk, Supreme Arrigoni 293 The Utah Knutson v. Bros. 408, 413-14, 561, similarly Court has observed child 275 Minn. (1966), contrary commonly sexual abuse is “so 566 we find it difficult to conclude accepted decency meaningfully standards of and morali- that children could assume ty agreement consensual to en- of sexual risks assault.7 gage rejected by in such conduct would be Although might argued it be against public policy the law as and void.” consent, beyond go facts this case mere (Utah Foust, 37, v. Elkington 618 P.2d 40 given Bjerke’s admission that she took ef- 1980). forts to conceal her with Bohl- man,
Beyond strong public in pro- interest we are not convinced that this is a abuse, tecting children from sexual it meaningful distinction. As we noted above, unlikely to us pressures placed seems children can be a number of are comprehend expected to the multitude of on a child to consent to the sexual abuse of long-term presume pressures effects of sexual abuse an an adult. To that such adult. from the dangers, begin simply Aside immediate and end with the child’s con- Int'l, Inc., 441, 810, 1, (7th (1933) (consent
ASSE 233 F.3d 450-51 170 S.E. 3 of minor Cir.2000) (consent pur of minor relevant for mitigation punishment). relevant as fault); pose comparative Harvey Freeman County Orangeburg Doe ex rel. Roe v. Sch. Sons, 233, Stanley, & Inc. v. 259 Ga. 378 2, Dist. No. the South Carolina court held that 857, (1989) (assumption S.E.2d 859 of risk liability may consent was irrelevant to be valid consideration sexual abuse suit 556, damages. relevant 335 S.C. 14-year-old girls against building manager); 259, S.E.2d Reed, 604, (La.Ct.App. L.K. v. 631 So.2d (minor 1994) girl's consent to sex relevant for age 7. Studies have further shown that "as the fault); comparative purpose of Tate v. Bd. of young difference between the woman and her Educ., George’s County, Md.App. Prince * * * increased, partner degree to which 536, 890, (Ct.Spec.App.2004) 843 A.2d participate she 'wanted' tо in the act sexual (teenage girl assumed risk of sexual abuse finding decreased. This indicates the likeli- uncle); Heidrich, Braun 62 N.D. * * * greater power hood of differential (minor girl N.W. violated episode may that the not have been volun- law, barring state fornication thus claim for tary.” Gary Harper, Contextual Factors That Line, Inc., damages); Bee Barton v. 238 A.D. Statutory Perpetuate Rape: The (N.Y.App.Div.1933) 265 N.Y.S. Influence of Roles, Gender Sexual and So- (society adequately protected by Socialization criminal stat Factors, ute, rendering damage ciocultural 50 DePaul L.Rev. award for consensual Parker, (2001) (footnotes omitted). unnecessary); act Parsons v. 160 Va. 912-13 *11 HANSON, J., a concurring opinion of files ignore disparity the would be to sent ANDERSON, A., relationship be- in the which RUSSELL typifies that power C.J., joins. and his victim. tween the abuser procure adult to brought pressures ANDERSON, J„ BARRY, G. files a activity in sexual participation child’s dissenting opinion in which PAGE procure that pressures can be the same GILDEA, JJ., join. impossibility Given the the child’s silence. HANSON, (concurring). Justice give rise pressures separating of that lead consent from those to a victim’s I separately I write because would con- abuse, we do not victim to conceal her type special clude that the third of rela- by a concеalment that even active believe (Sec- in tionship, as described Restatement is sufficient minor victim of sexual abuse ond) (1965), § be of Torts 324A should assump- primary of establish the defense The district court ruled that addressed. tion of the risk. could not type special relationship of ruling might be shown and become expressed concern courts have
Some
Further,
I
material
in the trial.
would
“al
evidence of consent
prohibiting
* * *
type
special
conclude that
the third
of
a one-sided
a victim to
tell
low[s]
relationship has been shown under
events,
subject to
being
of
without
version
presented.
facts
impeach
or
any real cross-examination
damages actually suffered.”
ment as to the
Restatement
324A and our de-
Under
County Sch.
Orangeburg
Doe
rel. Roe v.
ex
Taxi, Inc.,
Pagra
cision in Walsh v.
Air
No.
335 S.C.
518 S.E.2d
Dist.
type
special
the third
today does not
disposition
Our
(1)
if it is shown that Johnson
would exist
concern for three reasons.
implicate this
undertook,
gratuitously or for
whether
First,
posture of this
given
procedural
consideration,
to render
services
case,
only
assumption
primary
we address
Bjerke’s parents
which Johnson should
absolute defense to liabili
of the risk —an
recognized
being necessary for
have
as
plain
not consider whether the
ty
do
—and
Bjerke’s
proteсtion. See
under the
might
claims
be considered
tiffs
(Minn.1979).
secondary assumption of the
doctrine of
element, I
to the first
would conclude
As
Second,
opinion
no
on
express
risk.
that,
early
of law
at least as
as a matter
victim’s actions
the extent to which a child
gratuitously
Johnson
the summer of
jury
analyzing
in
can be considered
provide
large portion
undertook to
Third, we simi
negligence.
a defendant’s
Bjerke’s parents
were other-
services
on the relevance
larly express
opinion
no
provide
Bjerke.
Be-
obligated
wise
on issues
of evidence of the child’s conduct
unemancipated
an
minor
cause
damages.
brought
into her
at the time Johnson
her
primary
hold that
the defense of
We
home,
ne-
Bjerke’s
basic
provision
as a
assumption of the risk is unavailable
responsibility
was the
cessities
concerning
law in
the sexu-
matter of
cases
By providing Bjerke with such
parents.
Accordingly,
we affirm
al abuse of child.
necessities,
effectively rendered
to reverse
appeals’
the court of
decision
Bjerke’s parents, similar
kind
service to
summary judgment
grant
partial
by baby-sitter, though
provided
those
court for
and we remand to the district
greater
much
services were
Johnson’s
proceedings.
further
baby-sitter
that even a
scope. Givеn
some basic services
expected
provide
Affirmed.
food,
actually played
distinction
a deter-
supervision,
the child
This
care—
on
protection
from harm —a homeowner minative role
our decision
*12
Inv.
brings
relationships
who
a minor child to live
Erickson
Curtis
(Minn.1989).
naturally
In that
long-term
household
would
be
jecting
argument
defendant’s
that it could
however,
posing
liability,
tort
a court is
plaintiff was not
not be held liable because
only
appro
concerned with whether it is
with whom defendant
party
customer of
priate
policy
liability
to
public
impose
State,
contracted);
had
Williams v.
34
conduct;
particular
it does not usual
233,
137,
18,
Cal.Rptr.
192
664 P.2d
Cal.3d
ly
parties
consider whether the
involved
(1983)
that “a
and
(concluding
promise
* * *
liability
believed
to exist.
el
indispensable
reliance thereon are [not]
Although
appropriate
considerations
relationship”);
Smith
ements of
may
in a
context
contractual
also be
Co.,
685,
410 Mich.
v. Allendale Mut. Ins.
context,
relevant in the tort
differences
(1981) (de
718-19,
702,
n. 49
public policies,
in the relevant
extent of
undertaking may arise
termining that an
liability,
relationships
the nature of the
explicit promise or
either from defendant’s
expectations
persons
and the
in-
representations).1
from defendant’s
volved, suggest
question
Further,
interpreta-
adopt
Johnson’s
undertaking
what conduct amounts to an
effectively
the distinction
tion would
blur
negligent performance
for the
which
contract and tort law.
If an ex-
between
impose
liability
the law will
tort
should
press promise
required
were
on behalf
by principles
not
of contract
be confined
every
time a
was to be
parties
both
law.
imposed,
impossible
it would be all but
Allendale,
n. 24.
I The dissent. ship” duty protect to a exists giving rise room, provision holds that Johnson’s “custody person where a has of another board, and a stable home environment to person under circumstances which that Bjerke gave for an entire rise to a summer deprived of normal oppor- other is special relationship imposed on John- self-protection.” Harper tunities of duty protеct Bjerke from Bohl- son (Minn.1993) Herman, 472, 474 Notwithstanding the 499 N.W.2d man’s sexual abuse. (Second) (citing Restatement of Torts disturbing litiga- events that underlie this 314A) (1965).1 tion, majority § special relationship I conclude that a concludes (Second) (b) pro- give them aid after it knows or 1. Restatement of Torts 314A first they vides: are ill or has reason to know they injured, for them until (1) and to care A common carrier is under to its by can be cared for others. passengers to take action reasonable (a) innkeeper An is under a similar protect against them unreasonable harm, physical guests. risk of his protect Bjerke the victims that case resided with their that Johnson’s and section 314A be- Harper arose under an parents sexually and were abused accepted entrustment of cause “Johnson outsider, Bjerke apart from her resided Bjerke” of care for which de- some level much of the abuse occurred parents when parents’ protection. of her prived perpetrated and the abuse was a mem- I of the court of agree with the conclusion of her de facto household. But ber did not appeals special relationship that a Bjerke’s living arrangement does not ne- Bjerke under exist between Johnson and she, teenager, the fact that as a had a gate ar- “the custodial section 314A because greater capacity self-protection than Bjerke of nor- rangement deprive did not young children in H.B. did the opportunities self-protection.” mal protected by disclosing could have herself Johnson, Bjerke v. her with Bohlman to num- (Minn.App.2007). only parents, people ber of but —not H.B., girls ages four between teachers, counselors, also or even Johnson. park four and seven who lived at a trailer Additionally, just as the victims in H.B. park manager informed the another protection by availed themselves of inform- resident had molested them. 552 N.W.2d abuse, ing parents their of the ulti- manager girls at 707. The instructed the mately informed her of Bohlman’s parents, to tell their but the abuse contin abuse as well.2 approximately ued for three weeks before the children did so. Id. We held no H.B., “requiring As we stated in [the special relationship existed because the park manager] protective to take measures chil manager custody did not have emotionally ap- on behalf is [the victims’] dren, 708-09, id. at and we noted that “the pealing, is based on a factual well as dissent’s assertion that the children were a legal misapprehension of the circum- protect questiona unable themselves stances here.” Id. Becаuse best, undisputed ble at for it is that some deprived opportunities of normal they three weeks later did indeed self-protection, I would hold that a * * * reporting] themselves the abuse *16 relationship did not exist between Johnson parents,” to them at id. 709. under section 314A.3 young girls ages If of four between the capable self-protection and seven are of for II. 314A,
purposes teenager of section then a recognized Pagra We Walsh v. Air capable such as is also of self- Taxi, Inc., (Minn. 567, 570-71 protection. majority attempts The to dis- 1979), duty tinguish protect may H.B. on the basis that whereas that a also arise (3) possessor open changes A of land who holds it able to observe various in that child's signal public duty negative is under a similar to mem- behavior could influ- purposes public response ence on the child’s welfare.” For of bers of the who enter in however, 314A, only section we are con- invitation. his availability oppor- cerned with the required by of normal One who is law to take or self-protection, tunities of not whether a voluntarily custody who takes the of anoth- being child's circumstances are conducive to deprive er under circumstances such as to protected by another. opportunities the other of his normal proteсtion duty is under a similar to the imposition liability 3. of section 314A The other. complicated this case is further because the parent occurring prior majority that “a whose abuse was resi- *17 by limited the extent of the undertak The concurrence notes that “Johnson ing.); Chalfant, McGee ex rel. v. gratuitously provide large undertook to a McGee 434, 980, of the 248 Kan. 806 P.2d portion par- services that (“The obligated provide undertaking ents were otherwise to extent of the should Bjerke.” observation, scope duty.”). From this the define the 604, Inc., Although Pagra, Coming Cal.Rptr.2d we 4. did not note the error in 18 Cal.4th reporter 479, 1313, (1998); the "[t]he this edition of Restate- P.2d n. 4 Smith * * * pro- Co., 685, ment has verified that the word v. Allendale Mut. Ins. 410 Mich. appears point typo- tect’ which at this is a 702, (1981); N.W.2d 706 n. 4 Miller v. Bris- ” graphical ‘perform.’ error and should read Co., tol-Myers 168 Wis.2d 485 N.W.2d Hill v. Fid. U.S. & Guar. F.2d 38 n. 7 (5th Cir.1970); Artiglio 115 n. 5 see also relationship parent and child Therefore, special parent a rela- in order for * * * * * * child providing between Johnson tionship to have existed includ[e] 324A, food, shelter, section Johnson Bjerke clothing, and under edu necessary with to pro- undertaken specifically must have cation, neces and other care and control Bjerke parties third at Island tect from mental, or sary 'physical, the child’s Bjerke that But the record reflects Farm. development.” emotional health at the responsible for herself while was 1(b)(2) (2006) 260C.301, subd. Minn.Stat. farm, never transferred that her “[rjeluc- added). as we are (emphasis Just * * * Johnson, and over her to primary control parental rights tant to terminate Bjerke spent little time with Johnson cases,” In re egregious all but the most fact, believed the farm. In Johnson at C.K., (Minn.1989), 434 N.W.2d authority over she had no more paren to transfer should also be reluctant farm man- Bjerke than did Bohlman or the parent’s A parties. tal duties to third undertaking The extent of Johnsons ager. parental duties abdication of his or room, board, Bjerke with provide was to those not effectuate the transfer of does very degree supervision. limited and a duties to another. duty a under section may have had She scope any duty assumed John- these services with rea- perform 324A to Bjerke respect did not encom- son care, in this present an issue not sonable Bjerke duty protect from third pass duty litigation, but she did not assume Farm; therefore, at I would parties Island Bjerke parties third at protecting from a did not special hold that Island Farm. under exist between Johnson duty a under imposed have never We section 324A. scope section 324A exceeded Erickson, In we held undertaking. 32lA(a) Section security firm hired the оwner of Even if I were to concede that Johnson duty parking ramp owed a of reasonable Bjerke from third protect undertook to ramp lessee care to a customer of Farm, at Island I would conclude parties protect firm undertook to because the special relationship that a did not exist by actively patrolling lessee’s customers Bjerke under section between Johnson and ramp. 447 at 170-71. (c). 324A(a), (b), or Similarly, Pagra, we concluded that city pilot plane special relationship to a whose not have a under owed did 324A(a) destroyed by city because, because the “volun- although fire John- section protection fire tarily undertook to render prevented intervention could have or son’s at airport services to users.” 282 N.W.2d Bjerke, the harm to her failure mitigated contrast, Johnson, in did not volun- the risk of to intervene did increase tarily protect from undertake Bjerke. Cracraft, harm we set forth at Farm. parties third Island determining the factors be considered municipality owes a whether Johnson did not assume Because public. to a member of the parties from third 324A(a), Citing *18 we stated 806-07. section Farm, duty that remained with at Island care municipality that “the must use due Bjerke’s parents. The Minnesota statute harm.” Id. at incrеasing avoid the risk of parental the termination of governing v. Assessing 807. this factor Andrade exemplifies principle par- the rights Anoka Ellefson, explained that “[i]f for their responsibility ents have ultimate alleged existing imposed upon County had discovered the [a] children: duties “[T]he
679 home, that, may 324A(a), it danger (concluding in the Ellefson be under section harmed, not have “the plaintiffs would been actor’s failure to exercise reasonable decrease, not increase care in performing undertaking that is failure must 836, harm.” 391 N.W.2d 843 harm the risk of increase risk of over that which (Minn.1986). would have existed had the defendant not engaged all”), in the undertaking at aff'd Likewise, the of United States Court grounds, 397, on other 294 Wis.2d 717 Appeals explained Sixth Circuit (2006). N.W.2d 760 assuming Even 324A(a) that the under section “is not test actually protect undertook to the risk was increased over whether what Farm, from third parties at Island it would have been if the defendant had nothing Johnson’s inaction did to increase Rather, negligent. duty not been is the risk of harm to over what it imposed only if the risk is over increased would have been had Johnson not engaged it have had the defendant what would been undertaking. Johnson’s interven undertaking.”5 not in the engaged Myers might tion prevented Bjerke have from States, (6th 890, v. 17 United F.3d 903 but, harm, suffering as we stated An- Cir.1994); Canipe see also v. Natl. Loss drade, decrease, “this is a failure to 1055, Corp., 736 F.2d 1062 Control Serv. increase the risk of harm.” 391 N.W.2d (5th Cir.1984) (This [324A(a)J subsection requires change some conditions that harm plaintiff
increases the risk of
to the
32lA(b)
Section
over
level
risk that existed before
A special relationship also did not exist
involved.);
the defendant became
Deines
between Johnson and
under section
Co.,
989,
Mfg.
F.Supp.
Vermeer
324A(b).
(“[M]ere
(D.Kan.1990)
concurrence concludes that
negligence in failing
relationship existed under section
danger
part
to discover a
on the
* * *
324A(b) because “Johnson undertook a
subject
defendant
would not
the de-
normally
number of the duties
324A(a).”);
owed
liability
fendant
under
children,”
parents to their
such
“pro-
as
Liberty
Derosia v.
Mut. Ins.
155 Vt.
board,
178,
viding] Bjerke
881,
with room and
as
(interpreting
583 A.2d
324A(a)
Indeed,
as a level
guidance.”
section
“as a section
to well
“[a]
intended
(b)
superficial reading of
negligent
directly
describe
conduct that
in-
subsection
would
harm”);
creases risk of
Butler v. Ad-
lead one to believe that
endeavor to
Inc.,
Drainage Sys.,
help
performance
vanced
another in
Wis.2d
of its
117,
(Ct.App.2005)
a third
would lead direct-
interpretation
application
5. The Sixth Circuits
of section
all three
to limit
subsections
324A(a)
compelled by
language
illusory.
the section would be
provision:
States,
(6th
Myers v. United
17 F.3d
preliminary
Cir.1994);
Patentas,
This must be so because the
also
687 F.2d
see
at 716-
verbiage
negli-
in Section 324A assumes
324A(a)
(describing
language
of section
gence
part
on the
defendant
assuming]
injuries
as
that the
result in fact
negligence
further assumes that this
caused
negligent performance
from the defendants
plaintiffs injury.
If we were to read
undertaking
his or her
before it reaches the
i.e.,
(a)
plaintiffs suggest,
subsection
risk);
issue of increased
Butler v. Advanced
negligence
exists where the
in-
Inc.,
Drainage Sys.,
282 Wis.2d
creased the
what it
risk over
would have
(quoting
(Ct.App.2005)
126-27
care,
been had the defendant exercised due
Myers
interpretation
court’s
of section
every
would exist in
case. Such a
324A(a)),
grounds, 294
on other
Wis.2d
aff'd
(b)
reading would render subsections
ly to Cir.1990) (8th 316, (emphasis (Mo.Ct.App.1995). F.2d 317 899 S.W.2d added). Likewise, in- the United States interpretation an “was not But such Circuit, Appeals the Re- for the Eleventh by the drafters of Second Court of tended law, Georgia those who ruled that for liabili “punish applying and would statement” 324A(b), even where the under section a voluntarily ty imposed assist others to be by off duty was not made worse assume a person completely third “must party acts,” “discourage many be- person].” volunteer third by the to [another] [thе owed assistance,” a revo- of and “work nign Progressive Corp., acts 984 F.2d Hutcherson v. (11th Cir.1993); in tort Id. lution law.” see also Ricci Inc., Coop. Am. Quality v. Bakers of accompa- comment and illustrations (D.Del.1983) (“In order to F.Supp. 324A(b) suggest spe- that a nying section 324A(b), plaintiff under section a prevail between Johnson relationship cial existed that the who undertook must establish one if, in provision only Bjerke and under not mere duty inspect supplanted a undertaking protect addition to in duty another’s ly supplemented Farm, at Island John- parties from third Goodyear v. Tire Rub spect.”); Heinrich completely assume son also intended (D.Md. Co., F.Supp. ber that otherwise rest- duty protection 324A(b) 1982) (“Liability section under d Bjerke’s parents. Comment ed with only if workplace setting in the arises managing agent who takes states that “a undertaking intended to be in actor’s was owner, and charge building for the to, of, supplement a lieu rather than as keep proper him it in re- agrees with em duty own of care to the per- employer’s responsibility assumes the pair, duty in that Even if Johnson did undertake forming ployees.”). the owner’s to others (Second) parties of Torts from third respect.” Restatement duty 2 describes a to do § 324A cmt. d. Illustration Island Farm and assumed by employed so, negligent inspection person assumption of that was not poles, inspect employer’s telephone no evidence that absolute. There is negligent illustration 3 describes Bjerke’s parents relinquished sig such a conditions inspection Bjerke. work degree authority nificant over of construc- employed superintendent 321pA(c) Section Id., In each of these tion work. illus. 2-3. scenarios, only scope not is the three Finally, relationship did not scope duty imposed limited under exist between Johnson complete- undertaking, 324A(c) harm section because the Plank, ly by the actor. See assumed by her reliance or suffered not caused at 131. S.W.2d reliance of her on Johnson’s Reliance under section undertaking. recognized spe- that a Other courts have 324A(c) Rather, cannot be assumed. cial exists under section liability imposed to be under section 324A(b) only when a is assumed its 324A(c), of actual proof “there must be Liberty Mut. entirety. Obenauer undertaking on a contractual or reliance Co., Ap- Court of Ins. the United States that re- representations by the defendant affirmed the peals Eighth for the Circuit party or omissions sulted acts District Court of North Dakota’s determi- undertaking.” relying on the defendant’s nation that there could be no section 324A Ins. in- v. Universal Underwriters liability company’s an insurance Smith where Cir.1984) (11th (quoting manufactur- 732 F.2d replace” spections “did *20 F.2d from Corp., v. Bechtel Bohlman’s sexual Trosclair Cir.1981)) omitted); (5th (emphasis Therefore, I would abuse. hold that the Deines, at As noted F.Supp. 996. properly granted partial district court Appeals, “case law the Wisconsin Court summary judgment Johnson’s favor. generally focuses applying this subsection I respectfully dissent. altering in the form of on reliance might otherwise have precautions PAGE, (dissenting). J. under- been taken without defendant’s join I in the Barry dissent of Justice G. Butler, taking.” 129. Anderson. support record the conclu- does Bjerke’s the concurrence that sion of GILDEA, (dissenting). J. part “harm in some because was suffered join Barry I in the dissent of Justice G. Bjerke’s parents upon relied Johnson to Anderson. daughter.” explained after their As look earlier, it was understood that par- for herself and that her
responsible authority ultimate over her. The
ents had Bjerke’s telling
most indicator that failure of rely
did not on Johnson is the alert of her
Bjerke’s mother to and Bohlman had an
suspicion If inappropriate relationship. OLSON, al., Appellants, Alec G. et parents actually pro- relied on Johnson to daughter, Bjerke’s their mother would tect certainly have voiced her concerns Minnesota, et STATE Johnson. al., Respondents. No. A06-2324.
III. is, many respects, a difficult This Appeals of Minnesota. Court It undisputed case. abhorrent con- Dec. here, presence duct occurred and the undoubtedly triggers such conduct the de- responsible.
sire to hold someone But dif- facts, victim, sympathetic
ficult and even public policy protecting
the sound chil- from sexual
dren abuse should not obscure significant expansion party of third
liability majority today. undertaken agree majority’s
I conclusions genuine
that there are issues of material
fact as to whether Bohlman’s sexual abuse pri- was foreseeable and that
mary assumption apply of risk does not But, case. a special because relation-
ship did not exist between Johnson
Bjerke under either section 314A or sec- 324A,
tion Johnson did not have a The notes regular child lives on a basis is more dence at Island Farm. with her (Second) leaps Restatement of Torts concurrence to the under conclusion that (1965), provides: preliminary language which 324A section 324A assessing scope is satisfied without undertakes, gratuitously or for One who duty by assumed Johnson. The prop- consideration, to render services to an- 324A, application however, er of section nec- recognize other which he should as us, matter, requires as a threshold per- de- essary protection for the third subject liability scope duty to termine the of the assumed things, son or his is physical harm re- the third Johnson. failure to exercise rea- sulting from his “An specific undertaking actor’s of the his undertak- [perform]4 sonable care to allegedly performed services without rea if ing, care requirement sonable is threshold (a) his failure to exercise reasonable liability.” section 324A Temрoro re harm, care increases the risk of such (TMJ) mandibular Implants Joint Prods. or (8th Litig., Liab. 113 F.3d Cir. (b) perform he has undertaken to 1997); States, see also Patentas v. United owed the other to the third (3d Cir.1982) (“The 687 F.2d foun person, or good dation of the rule [S]amaritan [found (c) the harm because of is suffered in sections 323 and is that the defen 324A] per- reliance of the other or the third specifically dant per has undertaken to upon undertaking. son form the task that he or she charged having performed negligently.”); with majority The does not address whether States, Blessing v. 447 F.Supp. United relationship existed between (E.D.Pa.1978) (“The 1160, 1188-89 founda 324A, Johnson and under section requirement good tional Samaritan spe- but the concurrence concludes that a liability rule is that in order for to be cial did exist under section actor, imposed upon specifical he must I 324A. Because do not believe that a ly perform have undertaken to the task special relationship existed under section 314A, charged having performed that he is necessary it is to address section * * *.”). Or, negligently A stated 324A. careful assessment of section 324A case, appeals court of in this “The extent application by and its this court and other special relationship courts reveals that no of the owed under section 324A is by the extent the undertaking.” existed between Johnson and un- defined 190; provision. Bjerke, der that see also Ho Brewing mer v. Pabst 806 F.2d Scope Duty Johnsons (7th Cir.1986) ([T]he scope