STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0713
Jane Doe 175, a minor,
by her mother and natural guardian, Mother Doe 175,
Appellant,
vs.
Columbia Heights School District, ISD No. 13,
Respondent,
Christopher Lloyd Warnke,
Defendant.
Filed January 4, 2016
Affirmed
Hooten, Judge
Anoka County District Court
File No. 02-CV-11-7667
Jeffrey R. Anderson, Sarah G. Odegaard, Jeff Anderson & Associates, P.A., St. Paul,
Minnesota (for appellant)
Margaret A. Skelton, Christian R. Shafer, Ratwik, Roszak & Maloney, P.A., Minneapolis,
Minnesota (for respondent)
Susan L. Naughton, League of Minnesota Cities and Association of Minnesota Counties,
St. Paul, Minnesota (for amici curiae League of Minnesota Cities and Association of
Minnesota Counties)
Paul D. Peterson, Lori L. Barton, Harper & Peterson, P.L.L.P., Woodbury, Minnesota (for
amicus curiae Minnesota Association for Justice)
Michelle D. Kenney, Knutson, Flynn & Deans, P.A., Mendota Heights, Minnesota (for
amicus curiae Minnesota School Boards Association)
Considered and decided by Kirk, Presiding Judge; Chutich, Judge; and Hooten,
Judge.
SYLLABUS
Under Minnesota Statutes section 466.03, subdivision 15 (2014), a school district is
not vicariously liable for the torts of its employees committed while acting outside the
“scope of office or employment,” as that phrase is used in Minnesota Statutes section 3.736,
subdivision 1 (2014), and defined in Minnesota Statutes section 3.732, subdivision 1(3)
(2014).
OPINION
HOOTEN, Judge
In this second appeal, appellant challenges the district court’s summary judgment
dismissal of her claims against respondent school district for vicarious liability, negligence,
and negligent supervision arising out of the sexual abuse of appellant by respondent’s
employee. We affirm.
FACTS
The material facts in this case are largely undisputed. In the fall of 2009, defendant
Christopher Lloyd Warnke was an employee of respondent Columbia Heights School
District, ISD No. 13, working as a football coach and weight room supervisor. Before
hiring Warnke, the school district interviewed him, checked his references, and conducted
a criminal background check on him. During the hiring process, the school district did not
discover anything about Warnke that suggested he posed a risk to students.
When Warnke was hired by the school district in 2008, he received a copy of the
school district’s employee handbook, which contained policies regarding how employees
should interact with students. The handbook referenced the Columbia Heights School
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Board Policy Manual, which was available on the Internet. Policy #423 of the policy
manual stated, “Sexual relationships between school district employees and students,
without regard to the age of the student, are strictly forbidden and may subject the employee
to criminal liability.” The policy also prohibited employees from dating students, having
sexual interactions with students, and committing or inducing students to commit immoral
or illegal acts. The policy directed employees to “employ safeguards against improper
relationships with students and/or claims of such improper relationships.” Warnke testified
that he knew during the fall of 2009 that the policy prohibited school district employees
from dating or having sexual interactions with students.
In the fall of 2009, appellant Jane Doe 175 was fourteen years old and in the ninth
grade in the Columbia Heights School District. Doe had first met Warnke when she was
in the eighth grade and Warnke was coaching the eighth-grade football team. At that time,
Doe was friends with football players on Warnke’s team and would stop by and say hello
to her friends at football games. Doe and Warnke got to know each other better at the start
of her ninth-grade year, as she continued to visit her friends on the ninth-grade football
team that Warnke then coached.
After a football game in the fall of 2009, Doe borrowed Warnke’s cell phone to call
her parents for a ride home. When she got home, she used the caller ID feature of her home
telephone to acquire Warnke’s cell phone number and proceeded to initiate correspondence
with Warnke under a false identity. Doe used her personal cell phone to send Warnke text
messages, pretending to be an adult woman interested in having a sexual relationship with
him. After a week of exchanging text messages with Warnke, Doe admitted to him that
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she was the person who was sending the text messages. Warnke was initially angry with
Doe, but he soon resumed texting with her, even though he knew that she was a ninth-grade
student. Over the following weeks, Warnke and Doe exchanged hundreds of text
messages, many of which contained graphic sexual content. Warnke also e-mailed Doe
two photographs of his penis.
During this time period, Warnke and Doe saw each other in person mainly in the
weight room that Warnke supervised. Doe testified that, with the exception of one incident
of sexual contact, her visits to the weight room to see Warnke were limited to conversation,
although the subject matter of these conversations was at times sexually explicit. Doe
testified that other people were nearly always in the weight room when Warnke and Doe
interacted, but that there were no other school district employees present when she visited
Warnke in the weight room. Warnke testified that he was alone with Doe in the weight
room on only two occasions. Once when Warnke was alone with Doe in the weight room
office, he either placed Doe’s hand on his penis or coerced her to touch his penis.1 After
this incident of sexual contact, Warnke and Doe continued to exchange sexual text
messages.
On November 17, 2009, another student’s mother contacted Doe’s mother and told
her that Warnke and Doe had been exchanging sexually explicit text messages. On
November 18, 2009, that student told a school official about Warnke’s inappropriate
1
While Doe and Warnke disputed whether Warnke placed Doe’s hand on his penis or
coerced her to touch his penis, this fact dispute did not affect the district court’s analysis
of the issues on summary judgment and does not affect our analysis.
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relationship with Doe. The district court stated that “[i]t is undisputed that the first time
any [other] employees of the [school district] knew about the relationship between Warnke
and [Doe] was November 18, 2009.” The school district called the police the same day to
report Warnke’s sexual abuse. Warnke was arrested, and his employment was terminated
shortly thereafter. In 2011, Warnke pleaded guilty to one count of fourth-degree criminal
sexual conduct and two counts of solicitation of a minor to engage in sexual conduct.
In October 2011, Doe filed a complaint against Warnke and the school district,
alleging sexual battery against Warnke and vicarious liability, negligence, and negligent
supervision against the school district. The school district moved for summary judgment
on the three claims against it. In February 2013, the district court granted summary
judgment to the school district on Doe’s negligence and negligent supervision claims, but
denied summary judgment on the vicarious liability claim. In March 2013, the district
court certified two questions to this court, and the school district filed a notice of appeal to
obtain answers to the certified questions, but this court dismissed the appeal on procedural
grounds in January 2014. Doe 175 by Doe 175 v. Columbia Heights Sch. Dist., 842 N.W.2d
38, 40–41, 49 (Minn. App. 2014).
In March 2014, the school district moved for summary judgment for a second time
on the vicarious liability claim, raising for the first time an immunity defense. The district
court granted summary judgment to the school district on Doe’s vicarious liability claim.
In this second appeal, Doe challenges the district court’s grant of summary judgment to the
school district on all three claims.
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ISSUES
I. Is the school district’s mootness argument properly before this court?
II. Did the district court err in granting the school district’s motion for summary
judgment on Doe’s vicarious liability claim?
III. Did the district court err in granting the school district’s motion for summary
judgment on Doe’s negligence and negligent supervision claims?
ANALYSIS
I.
As a preliminary matter, the school district argues that Doe’s vicarious liability
claim is moot. Four months after the district court granted summary judgment to the school
district on Doe’s vicarious liability claim, but before Doe’s current appeal to this court,
Doe and Warnke stipulated that Doe’s sexual battery claim against Warnke “shall be
dismissed with prejudice.” The district court dismissed the claim with prejudice by order
dated October 31, 2014. On appeal, the school district argues for the first time that the
October 2014 order renders moot Doe’s vicarious liability claim. Specifically, the school
district contends that its vicarious liability can be no greater than Warnke’s direct liability
and that the October 2014 order prevents Doe from establishing Warnke’s direct liability.
The only issues appealed by Doe are whether the district court properly granted
summary judgment to the school district on her vicarious liability, negligence, and
negligent supervision claims. In response, the school district argues that the district court
correctly granted summary judgment on Doe’s vicarious liability claim on the basis of
statutory immunity, but alternatively argues that we should not even review this summary
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judgment on appeal because the claim is now moot in light of the subsequent stipulated
dismissal of Doe’s claim against Warnke. However, in order to reach the issue of whether
Doe’s vicarious liability claim is moot, we would necessarily be required to determine as
a matter of law whether a stipulated dismissal with prejudice is the equivalent of a release,
such that the common law rule that “the release of the agent releases the principal from
vicarious liability” would apply in this case. See Booth v. Gades, 788 N.W.2d 701, 707
(Minn. 2010). The legal effect of the stipulated dismissal of Doe’s claim against Warnke
was not raised before the district court as an alternative ground for summary judgment and
was not adequately briefed to this court. Rather, the only defense asserted by the school
district in its second motion for summary judgment, ruled upon by the district court, and
appealed by Doe relative to the school district’s vicarious liability was statutory immunity.
Therefore, we decline to consider the school district’s mootness argument and proceed to
the substance of the issues raised in this appeal.2
II.
Doe argues that the district court erred by granting the school district’s motion for
summary judgment on her vicarious liability claim. She contends that the district court
2
If we were to reverse the district court’s grant of summary judgment on Doe’s vicarious
liability claim—which we are not doing—the school district would then have the
opportunity to argue about the effect of the stipulated dismissal before the district court.
But, because we are affirming on this issue, the school district’s alternative argument
(mootness) need not be addressed. Even if we were to agree that the vicarious liability
claim is moot, a discretionary exception to the mootness doctrine would allow us to reach
the merits of this issue. See Dean v. City of Winona, 868 N.W.2d 1, 6 (Minn. 2015) (“We
have the discretion to consider a case that is technically moot when the case is functionally
justiciable and presents an important question of statewide significance that should be
decided immediately.” (quotations omitted)).
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erred in interpreting and applying the Minnesota municipal tort claims act, Minn. Stat.
§§ 466.01–.15 (2014), and the Minnesota state tort claims act, Minn. Stat. § 3.736 (2014),
to her claim. In its order granting the school district’s second motion for summary
judgment, the district court did not analyze whether the school district was subject to
vicarious liability under Minn. Stat. § 466.02. Instead, the district court determined that
the school district was immune from vicarious liability under Minn. Stat. § 466.03, subd.
15. We agree that even if the school district would otherwise be subject to vicarious
liability under section 466.02, it would be immune from vicarious liability under section
466.03, subdivision 15.
On appeal from summary judgment, we review de novo whether there are any
genuine issues of material fact and whether the district court erred in applying the law.
STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76–77 (Minn. 2002). We
view the evidence in the light most favorable to the nonmoving party. Id. Whether
immunity applies is a question of law, which we review de novo. Schroeder v. St. Louis
Cty., 708 N.W.2d 497, 503 (Minn. 2006). “The party claiming statutory immunity has the
burden of proof.” S.W. & J.W. ex rel. A.M.W. v. Spring Lake Park Sch. Dist. No. 16, 580
N.W.2d 19, 22 (Minn. 1998).
The interpretation of a statute presents a question of law, which we review de novo.
Weston v. McWilliams & Assocs., Inc., 716 N.W.2d 634, 638 (Minn. 2006). “The object
of all interpretation and construction of laws is to ascertain and effectuate the intention of
the legislature.” Minn. Stat. § 645.16 (2014). The interpretation of section 466.03,
subdivision 15, is an issue of first impression. “The first step in statutory interpretation is
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to determine whether the statute’s language, on its face, is ambiguous.” Christianson v.
Henke, 831 N.W.2d 532, 536 (Minn. 2013) (quotations omitted).
In determining whether a statute is ambiguous, we will
construe the statute’s words and phrases according to their
plain and ordinary meaning. A statute is only ambiguous if its
language is subject to more than one reasonable interpretation.
Multiple parts of a statute may be read together so as to
ascertain whether the statute is ambiguous. When we conclude
that a statute is unambiguous, our role is to enforce the
language of the statute and not explore the spirit or purpose of
the law. Alternatively, if we conclude that the language in a
statute is ambiguous, then we may consider the factors set forth
by the [l]egislature for interpreting a statute.
Id. at 536–37 (quotations and citations omitted). The parties offer conflicting
interpretations of the language of the statute at issue here. But, because there is only one
reasonable interpretation—the school district’s—we conclude that the statute’s language
is unambiguous.
Section 466.02 provides: “Subject to the limitations of sections 466.01 to 466.15,
every municipality is subject to liability for its torts and those of its officers, employees
and agents acting within the scope of their employment or duties whether arising out of a
governmental or proprietary function.” The term “municipality” includes school districts.
Minn. Stat. § 466.01, subd. 1. But, the term “scope of their employment or duties” is not
defined in the municipal tort claims act. Section 466.03 details numerous “limitations and
exceptions” to municipal vicarious liability. Hansen v. City of St. Paul, 298 Minn. 205,
211, 214 N.W.2d 346, 350 (1974). In relevant part, this section provides that every
municipality shall be immune from liability for “[a]ny claim against a municipality, if the
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same claim would be excluded under [Minn. Stat. § 3.736], if brought against the state.”
Minn. Stat. § 466.03, subd. 15.
Section 3.736, subdivision 1, provides that, with some exceptions, the state can be
held liable only for losses caused by the torts of its employees “while acting within the
scope of office or employment.” For purposes of section 3.736, “scope of office or
employment” means “that the employee was acting on behalf of the state in the
performance of duties or tasks lawfully assigned by competent authority.” Minn. Stat.
§ 3.732, subd. 1(3). By limiting the state’s vicarious liability to the torts of employees
“acting within the scope of office or employment,” section 3.736 plainly excludes from
vicarious liability torts committed by a state employee who was not “acting on behalf of
the state in the performance of duties or tasks lawfully assigned by competent authority.”
See Minn. Stat. § 645.19 (2014) (codifying the interpretive canon expressio unius est
exclusio alterius). In addition to this implicit exclusion, the state tort claims act details
numerous other exclusions from the state’s vicarious liability, none of which are relevant
here. See Minn. Stat. § 3.736, subd. 3.
There is no dispute that Warnke engaged in sexual misconduct for his own personal
reasons, not “on behalf of” the school district “in the performance of duties or tasks
lawfully assigned by competent authority.” See Minn. Stat. § 3.732, subd. 1(3). Therefore,
if Warnke had been employed by the state rather than the school district, Doe’s vicarious
liability claim would have been “excluded under section 3.736.” See Minn. Stat. § 466.03,
subd. 15. Thus, in its summary judgment ruling, the district court correctly concluded that
the school district was immune from liability under section 466.03, subdivision 15.
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Doe offers a different interpretation of the statute, but her interpretation is
unreasonable. Doe claims that because section 466.03, subdivision 15, uses the word
“excluded,” it refers only to the “[e]xclusions” of section 3.736, subdivision 3. See Minn.
Stat. § 466.03, subd. 15 (“Any claim against a municipality, if the same claim would be
excluded under section 3.736, if brought against the state.” (emphasis added)). Doe then
points out that none of the enumerated exclusions in the state tort claims act provides for
immunity for claims of child sexual abuse and therefore argues that section 466.03,
subdivision 15, does not confer immunity upon the school district. Doe’s interpretation is
flawed because section 466.03, subdivision 15, provides immunity to a municipality if the
state would be immune “under section 3.736”—not if the state would be immune “under
section 3.736, subdivision 3.” This court cannot “add words to the statute that the
[l]egislature did not supply.” Graphic Commc’ns Local 1B Health & Welfare Fund “A”
v. CVS Caremark Corp., 850 N.W.2d 682, 691 (Minn. 2014). And, section 3.736,
subdivision 1, specifically provides that the state may be vicariously liable only for injury
“caused by an act or omission of an employee of the state while acting within the scope of
office or employment.”
The school district persuasively argues that section 3.736, subdivision 1, creates a
general rule that the state is immune from vicarious liability for the torts of its employees
unless they were committed “within the scope of office or employment.” Subdivision 3
expands this general rule by providing additional circumstances (“[e]xclusions”) under
which the state is immune, even if an employee’s tort was committed “within the scope of
office or employment.” On the other hand, Doe’s narrow, formalistic interpretation of
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section 466.03, subdivision 15, ignores the general rule of immunity set forth in section
3.736, subdivision 1.
Based upon our interpretation of the interplay between the municipal tort claims act
and the state tort claims act, we hold that the school district is immune from vicarious
liability under Minn. Stat. § 466.03, subd. 15. The district court did not err in granting
summary judgment to the school district on Doe’s vicarious liability claim.
III.
Doe next argues that the district court erred by granting summary judgment to the
school district on her negligence and negligent supervision claims because the existence of
alleged “red flags” should have put the school district on notice that Warnke’s sexual abuse
of Doe was foreseeable. The school district counters that Doe mischaracterizes the record
to exaggerate the significance of the alleged red flags and contends that Warnke’s sexual
abuse of Doe was not foreseeable. To defeat summary judgment, the nonmoving party
must do more than “merely create[] a metaphysical doubt as to a factual issue” or “rest on
mere averments.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). Rather, the
nonmoving party must offer “substantial evidence” to support each essential element of its
cause of action. See id. at 70–71 (quotation omitted). Speculation and innuendo are not
sufficient. Johnson v. Van Blaricom, 480 N.W.2d 138, 140 (Minn. App. 1992).
The elements of a negligence claim are the existence of a duty of care, breach of
that duty, proximate causation, and injury. Bjerke v. Johnson, 742 N.W.2d 660, 664 (Minn.
2007). For purposes of a negligence claim, there is no general duty to protect another from
harm, but a duty to protect arises if there is a special relationship between the parties and
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the risk is foreseeable. Id. at 665. Similarly, “[t]o make out a successful claim for negligent
supervision, the plaintiff must prove (1) the employee’s conduct was foreseeable; and (2)
the employer failed to exercise ordinary care when supervising the employee.” C.B. by
L.B. v. Evangelical Lutheran Church in Am., 726 N.W.2d 127, 136 (Minn. App. 2007)
(quotations omitted). Therefore, to succeed on a claim of either negligence or negligent
supervision, a plaintiff must prove that the risk in question was foreseeable.
Whether a risk is foreseeable is a legal question that must be decided by the district
court before submitting a case to a jury. Alholm v. Wilt, 394 N.W.2d 488, 491 (Minn.
1986). In the context of negligence and negligent supervision claims, foreseeability means
“a level of probability which would lead a prudent person to take effective precautions.”
Fahrendorff by Fahrendorff v. N. Homes, Inc., 597 N.W.2d 905, 912 (Minn. 1999)
(quotation omitted). “In determining whether a danger is foreseeable, courts look at
whether the specific danger was objectively reasonable to expect, not simply whether it
was within the realm of any conceivable possibility.” Whiteford by Whiteford v. Yamaha
Motor Corp., U.S.A., 582 N.W.2d 916, 918 (Minn. 1998). Sexual abuse “will rarely be
deemed foreseeable in the absence of prior similar incidents.” K.L. v. Riverside Med. Ctr.,
524 N.W.2d 300, 302 (Minn. App. 1994), review denied (Minn. Feb. 3, 1995).
The district court granted the school district’s motion for summary judgment on
these claims because it concluded that Warnke’s sexual abuse of Doe was not foreseeable.
The district court relied heavily on P.L. v. Aubert, 545 N.W.2d 666 (Minn. 1996), in
reaching this conclusion. In P.L., the supreme court held that the sexual abuse of a student
by a teacher did not impose liability on the school district because the teacher and student
13
concealed their relationship, such that “closer vigilance would not have uncovered the
relationship.” Id. at 668. Doe argues that the existence of the following red flags is
sufficient, when construed most favorably to her, to raise a genuine issue of material fact
as to whether Warnke’s sexual abuse of Doe was foreseeable and whether the school
district had reason to know that Warnke posed a danger to Doe.
Doe yelling at Warnke at a football practice
Doe watched Warnke’s football practice during the fall of 2009 on one or two
occasions. On one of these occasions, Doe yelled to Warnke, “Chris, I love you.” In
response to Doe yelling this, L.S., another football coach, told Warnke, “[T]hat’s trouble.”
Warnke did not respond to Doe, and L.S. asked Doe to leave the practice.
Doe and Warnke talking in a school parking lot
In late September or early October 2009, L.S. saw Warnke and Doe talking in a
school parking lot after football practice. Several other students and coaches were in the
parking lot at the time. In her appellate brief, Doe states that the conversation took place
while she and Warnke were “alone” in the parking lot, but this mischaracterizes the record.
L.S. testified that “[t]hey weren’t alone. They were talking to each other, but there [were]
lots of people in the parking lot.” L.S. further testified that he did not find it odd to see
Doe and Warnke talking in the parking lot, as “it wasn’t uncommon for coaches, male or
female, to be talking to students.”
Doe using the weight room office computer
Sometime in the fall of 2009, L.S. and another football coach saw Doe using a
computer in the weight room office while Warnke was supervising the weight room.
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Warnke was not in the office at the time, as he was lifting weights with football players in
the weight room. L.S. or the other coach said to Warnke something like, “[S]he needs to
leave,” to which Warnke responded, “She’s not my problem.” L.S. testified that, while he
had seen Doe in the weight room from time to time, he did not recall ever seeing Doe
interacting with Warnke in the weight room. L.S. indicated that both female and male
athletes used the weight room. Doe testified that she was an athlete and that she often
visited the weight room with her brother, who was on the junior varsity football team. L.S.
testified that the weight room office, which was located near the entryway of the weight
room, was shared by several coaches who supervised the weight room. When asked about
the weight room office, Doe stated: “It’s just open. Anybody [could] go in there.” Doe
testified that she had accessed the computer “probably a couple of times” using her student
login. L.S. testified that he was unaware of any policies related to students using the
computer in the weight room office.
Warnke alone in the weight room with a young girl on a Saturday
Another weight room supervisor saw Warnke alone with an unknown “young girl”
in the weight room on a Saturday morning when Warnke was supervising the weight room.
The weight room supervisor did not report this observation to school officials until the
school district conducted its internal investigation of Warnke’s sexual abuse. When asked
about this incident, Warnke testified that he had never been confronted about being alone
in the weight room with a young girl. He also testified that his daughter would occasionally
accompany him to the weight room on Saturdays when his wife was working.
15
Even viewing the record in the light most favorable to Doe, these alleged red flags
were insufficient to raise a genuine issue of material fact as to whether Warnke’s sexual
abuse of Doe was foreseeable. Taken in context, the incidents Doe cites are not sufficiently
similar to or indicative of sexual abuse as to give the school district notice that an
inappropriate relationship existed between Warnke and Doe. First, Doe’s “Chris, I love
you” shout was a single statement by a teenage girl at a football practice, Warnke did not
react to the shout, and Doe was instructed to leave the practice after she shouted. Second,
as to the observation of Doe talking to Warnke in the school parking lot, the record
indicates that Doe and Warnke were not alone and that it was common to see coaches
talking with students in the parking lot after sports practices. Third, the observation of Doe
using a computer in the weight room office while Warnke was supervising other students
in the weight room is not an objectively reasonable indicator of a potentially inappropriate
relationship between Warnke and Doe. Fourth, observations of Warnke and an
unidentified young female alone in the weight room on a Saturday do not raise any
reasonable inferences of potential or ongoing sexual abuse. Furthermore, there is no
evidence that any school district employee observed physical contact or sexual conduct of
any kind between Warnke and Doe.
Doe alternatively argues that foreseeability in this case is a “close call,” presenting
a jury question. See Whiteford, 582 N.W.2d at 918 (“In close cases, the question of
foreseeability is for the jury.”). Even viewing the evidence in the light most favorable to
Doe, however, these incidents gave no “objectively reasonable” indication of a “specific
16
danger” of potential or ongoing sexual abuse. Id. Our review of these facts shows that
foreseeability was not a “close call” that should be decided by a jury.
Doe contends that inadequate training by the school district might be the reason why
the school district’s employees failed to discern the significance of the alleged red flags.
But, Doe does not identify any additional training that would have caused school district
employees to view the benign interactions she characterizes as red flags as indicators of
possible sexual abuse. The mere assertion that additional training might have affected
observers’ perceptions is not sufficient to defeat summary judgment. See DLH, Inc., 566
N.W.2d at 70–71 (requiring substantial evidence and not mere averments to defeat
summary judgment).
Based on the undisputed facts in the record, we agree with the district court that
Warnke’s sexual abuse of Doe was not foreseeable. The district court did not err in
granting summary judgment to the school district on Doe’s negligence and negligent
supervision claims.
DECISION
Because the school district is immune from vicarious liability under the municipal
tort claims act, we affirm the district court’s grant of summary judgment to the school
district on Doe’s vicarious liability claim. And, because Warnke’s sexual abuse of Doe
was not foreseeable, we affirm the district court’s grant of summary judgment to the school
district on Doe’s negligence and negligent supervision claims.
Affirmed.
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