Bjerke v. Johnson

ANDERSON, G. BARRY, Justice

(dissenting).

I respectfully dissent. The majority holds that Johnson’s provision of room, board, and a stable home environment to Bjerke for an entire summer gave rise to a special relationship that imposed on Johnson the duty to protect Bjerke from Bohl-man’s sexual abuse. Notwithstanding the disturbing events that underlie this litigation, I conclude that a special relationship did not exist between Johnson and Bjerke and that Johnson thus had no duty to protect Bjerke from Bohlman. I would therefore reverse the decision of the court of appeals and reinstate the district court’s order of partial summary judgment.

We have previously recognized “the general common law rule that a person does not have a duty to give aid or protection to another or to warn or protect others from harm caused by a third party’s conduct.” H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn.1996); see also Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn.1979); Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 804 (Minn.1979) (citing Restatement (Second) of Torts § 315 (1965)). But “[a]n exception to this general rule arises where the harm is foreseeable and a special relationship exists between the actor and the person seeking protection.” H.B., 552 N.W.2d at 707; see also Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168 (Minn.1989); Delgado, 289 N.W.2d at 483; Cracraft, 279 N.W.2d at 804 (citing Restatement (Second) of Torts § 315). I do not agree with either the majority’s interpretation of the Restatement or the majority’s characterization of the record.

I.

We have held that a “special relationship” giving rise to a duty to protect exists where a person has “custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection.” Harper v. Herman, 499 N.W.2d 472, 474 (Minn.1993) (citing Restatement (Second) of Torts § 314A) (1965).1 The majority concludes *676that Johnson’s duty to protect Bjerke arose under Harper and section 314A because “Johnson accepted entrustment of some level of care for Bjerke” which deprived Bjerke of her parents’ protection. I agree with the conclusion of the court of appeals that a special relationship did not exist between Johnson and Bjerke under section 314A because “the custodial arrangement did not deprive Bjerke of normal opportunities of self-protection.” Bjerke v. Johnson, 727 N.W.2d 183, 189 (Minn.App.2007).

In H.B., four girls between the ages of four and seven who lived at a trailer park informed the park manager that another resident had molested them. 552 N.W.2d at 707. The manager instructed the girls to tell their parents, but the abuse continued for approximately three weeks before the children did so. Id. We held that no special relationship existed because the manager did not have custody of the children, id. at 708-09, and we noted that “the dissent’s assertion that the children were unable to protect themselves is questionable at best, for it is undisputed that some three weeks later they did indeed protect themselves by * * * reporting] the abuse to them parents,” id. at 709.

If young girls between the ages of four and seven are capable of self-protection for purposes of section 314A, then a teenager such as Bjerke is also capable of self-protection. The majority attempts to distinguish H.B. on the basis that whereas the victims in that case resided with their parents and were sexually abused by an outsider, Bjerke resided apart from her parents when much of the abuse occurred and the abuse was perpetrated by a member of her de facto household. But Bjerke’s living arrangement does not negate the fact that she, as a teenager, had a greater capacity for self-protection than did the young children in H.B. Bjerke could have protected herself by disclosing her relationship with Bohlman to any number of people — not only her parents, but also teachers, counselors, or even Johnson. Additionally, just as the victims in H.B. availed themselves of protection by informing their parents of the abuse, Bjerke ultimately informed her parents of Bohlman’s abuse as well.2

As we stated in H.B., “requiring [the park manager] to take protective measures on [the victims’] behalf is emotionally appealing, but is based on a factual as well as a legal misapprehension of the circumstances here.” Id. Because Bjerke was not deprived of normal opportunities of self-protection, I would hold that a special relationship did not exist between Johnson and Bjerke under section 314A.3

II.

We recognized in Walsh v. Pagra Air Taxi, Inc., 282 N.W.2d 567, 570-71 (Minn.1979), that a duty to protect may also arise *677under Restatement (Second) of Torts § 324A (1965), which provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform]4 his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

The majority does not address whether a special relationship existed between Johnson and Bjerke under section 324A, but the concurrence concludes that a special relationship did exist under section 324A. Because I do not believe that a special relationship existed under section 314A, it is necessary to address section 324A. A careful assessment of section 324A and its application by this court and other courts reveals that no special relationship existed between Johnson and Bjerke under that provision.

The Scope of Johnsons Duty

The concurrence notes that “Johnson gratuitously undertook to provide a large portion of the services that Bjerke’s parents were otherwise obligated to provide to Bjerke.” From this observation, the concurrence leaps to the conclusion that the preliminary language of section 324A is satisfied without assessing the scope of the duty assumed by Johnson. The proper application of section 324A, however, requires us, as a threshold matter, to determine the scope of the duty assumed by Johnson.

“An actor’s specific undertaking of the services allegedly performed without reasonable care is a threshold requirement to section 324A liability.” In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1493 (8th Cir.1997); see also Patentas v. United States, 687 F.2d 707, 716 (3d Cir.1982) (“The foundation of the good [S]amaritan rule [found in sections 323 and 324A] is that the defendant specifically has undertaken to perform the task that he or she is charged with having performed negligently.”); Blessing v. United States, 447 F.Supp. 1160, 1188-89 (E.D.Pa.1978) (“The foundational requirement of the good Samaritan rule is that in order for liability to be imposed upon the actor, he must specifically have undertaken to perform the task that he is charged with having performed negligently * * *.”). Or, as stated by the court of appeals in this case, “The extent of the duty owed under section 324A is defined by the extent of the undertaking.” Bjerke, 727 N.W.2d at 190; see also Homer v. Pabst Brewing Co., 806 F.2d 119, 121 (7th Cir.1986) ([T]he scope of the duty is limited by the extent of the undertaking.); McGee ex rel. McGee v. Chalfant, 248 Kan. 434, 806 P.2d 980, 985 (1991) (“The extent of the undertaking should define the scope of the duty.”).

*678Therefore, in order for a special relationship to have existed between Johnson and Bjerke under section 324A, Johnson must have specifically undertaken to protect Bjerke from third parties at Island Farm. But the record reflects that Bjerke was responsible for herself while at the farm, that her parents never transferred primary control over her to Johnson, and that Bjerke spent little time with Johnson at the farm. In fact, Johnson believed that she had no more authority over Bjerke than did Bohlman or the farm manager. The extent of Johnsons undertaking was to provide Bjerke with room, board, and a very limited degree of supervision. She may have had a duty under section 324A to perform these services with reasonable care, an issue not present in this litigation, but she did not assume the duty of protecting Bjerke from third parties at Island Farm.

We have never imposed a duty under section 324A that exceeded the scope of the undertaking. In Erickson, we held that a security firm hired by the owner of a parking ramp owed a duty of reasonable care to a customer of the ramp lessee because the firm undertook to protect the lessee’s customers by actively patrolling the ramp. 447 N.W.2d at 167, 170-71. Similarly, in Pagra, we concluded that a city owed a duty to a pilot whose plane was destroyed by fire because the city “voluntarily undertook to render fire protection services to airport users.” 282 N.W.2d at 570. Johnson, in contrast, did not voluntarily undertake to protect Bjerke from third parties at Island Farm.

Because Johnson did not assume the duty to protect Bjerke from third parties at Island Farm, that duty remained with Bjerke’s parents. The Minnesota statute governing the termination of parental rights exemplifies the principle that parents have ultimate responsibility for their children: “[T]he duties imposed upon [a] parent by the parent and child relationship * * * includ[e] * * * providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the child’s 'physical, mental, or emotional health and development.” Minn.Stat. § 260C.301, subd. 1(b)(2) (2006) (emphasis added). Just as we are “[rjeluc-tant * * * to terminate parental rights in all but the most egregious of cases,” In re C.K., 434 N.W.2d 925, 926 (Minn.1989), we should also be reluctant to transfer parental duties to third parties. A parent’s abdication of his or her parental duties does not effectuate the transfer of those duties to another.

The scope of any duty assumed by Johnson with respect to Bjerke did not encompass the duty to protect Bjerke from third parties at Island Farm; therefore, I would hold that a special relationship did not exist between Johnson and Bjerke under section 324A.

Section 32lA(a)

Even if I were to concede that Johnson undertook to protect Bjerke from third parties at Island Farm, I would conclude that a special relationship did not exist between Johnson and Bjerke under section 324A(a), (b), or (c). Johnson and Bjerke did not have a special relationship under section 324A(a) because, although Johnson’s intervention could have prevented or mitigated the harm to Bjerke, her failure to intervene did not increase the risk of harm to Bjerke. In Cracraft, we set forth the factors to be considered in determining whether a municipality owes a special duty to a member of the public. 279 N.W.2d at 806-07. Citing section 324A(a), we stated that “the municipality must use due care to avoid increasing the risk of harm.” Id. at 807. Assessing this factor in Andrade v. Ellefson, we explained that “[i]f Anoka County had discovered the alleged existing *679danger in the Ellefson home, it may be plaintiffs would not have been harmed, but that is a failure to decrease, not increase the risk of harm.” 391 N.W.2d 836, 843 (Minn.1986).

Likewise, the United States Court of Appeals for the Sixth Circuit explained that the test under section 324A(a) “is not whether the risk was increased over what it would have been if the defendant had not been negligent. Rather, a duty is imposed only if the risk is increased over what it would have been had the defendant not engaged in the undertaking.”5 Myers v. United States, 17 F.3d 890, 903 (6th Cir.1994); see also Canipe v. Natl. Loss Control Serv. Corp., 736 F.2d 1055, 1062 (5th Cir.1984) (This subsection [324A(a)J requires some change in conditions that increases the risk of harm to the plaintiff over the level of risk that existed before the defendant became involved.); Deines v. Vermeer Mfg. Co., 752 F.Supp. 989, 995 (D.Kan.1990) (“[M]ere negligence in failing to discover a danger on the part of a defendant * * * would not subject the defendant to liability under § 324A(a).”); Derosia v. Liberty Mut. Ins. Co., 155 Vt. 178, 583 A.2d 881, 887 (1990) (interpreting section 324A(a) “as a section intended to describe negligent conduct that directly increases risk of harm”); Butler v. Advanced Drainage Sys., Inc., 282 Wis.2d 776, 698 N.W.2d 117, 127 (Ct.App.2005) (concluding that, under section 324A(a), “the actor’s failure to exercise reasonable care in performing the undertaking must increase the risk of harm over that which would have existed had the defendant not engaged in the undertaking at all”), aff'd on other grounds, 294 Wis.2d 397, 717 N.W.2d 760 (2006). Even assuming that Johnson actually undertook to protect Bjerke from third parties at Island Farm, Johnson’s inaction did nothing to increase the risk of harm to Bjerke over what it would have been had Johnson not engaged in that undertaking. Johnson’s intervention might have prevented Bjerke from suffering harm, but, as we stated in An-drade, “this is a failure to decrease, not increase the risk of harm.” 391 N.W.2d at 843.

Section 32lA(b)

A special relationship also did not exist between Johnson and Bjerke under section 324A(b). The concurrence concludes that a special relationship existed under section 324A(b) because “Johnson undertook a number of the duties normally owed by parents to their children,” such as “providing] Bjerke with room and board, as well as a level of guidance.” Indeed, “[a] superficial reading of subsection (b) would lead one to believe that any endeavor to help another in the performance of its duty to protect a third person would lead direct*680ly to liability.” Plank v. Union Elec. Co., 899 S.W.2d 129, 131 (Mo.Ct.App.1995). But such an interpretation “was not intended by the drafters of the Second Restatement” and would “punish those who voluntarily assist others even where the third person was not made worse off by the volunteer acts,” “discourage many benign acts of assistance,” and “work a revolution in tort law.” Id.

The comment and illustrations accompanying section 324A(b) suggest that a special relationship existed between Johnson and Bjerke under that provision only if, in addition to undertaking to protect Bjerke from third parties at Island Farm, Johnson also intended to completely assume this duty of protection that otherwise rested with Bjerke’s parents. Comment d states that “a managing agent who takes charge of a building for the owner, and agrees with him to keep it in proper repair, assumes the responsibility of performing the owner’s duty to others in that respect.” Restatement (Second) of Torts § 324A cmt. d. Illustration 2 describes a negligent inspection by a person employed to inspect the employer’s telephone poles, and illustration 3 describes a negligent inspection of work conditions by a person employed as superintendent of construction work. Id., illus. 2-3. In each of these three scenarios, not only is the scope of the duty imposed limited by the scope of the undertaking, but the duty is completely assumed by the actor. See Plank, 899 S.W.2d at 131.

Other courts have recognized that a special relationship exists under section 324A(b) only when a duty is assumed in its entirety. In Obenauer v. Liberty Mut. Ins. Co., the United States Court of Appeals for the Eighth Circuit affirmed the District Court of North Dakota’s determination that there could be no section 324A liability where an insurance company’s inspections “did not replace” a manufacturer’s duty to “design a safe product.” 908 F.2d 316, 317 (8th Cir.1990) (emphasis added). Likewise, the United States Court of Appeals for the Eleventh Circuit, applying Georgia law, ruled that for liability to be imposed under section 324A(b), a party “must completely assume a duty owed by [another] to [the third person].” Hutcherson v. Progressive Corp., 984 F.2d 1152, 1156 (11th Cir.1993); see also Ricci v. Quality Bakers of Am. Coop. Inc., 556 F.Supp. 716, 721 (D.Del.1983) (“In order to prevail under section 324A(b), a plaintiff must establish that the one who undertook a duty to inspect supplanted and not merely supplemented another’s duty to inspect.”); Heinrich v. Goodyear Tire Rubber Co., 532 F.Supp. 1348, 1355 (D.Md.1982) (“Liability under section 324A(b) arises in the workplace setting only if the actor’s undertaking was intended to be in lieu of, rather than as a supplement to, the employer’s own duty of care to the employees.”). Even if Johnson did undertake to protect Bjerke from third parties at Island Farm and assumed the duty to do so, her assumption of that duty was not absolute. There is no evidence that Bjerke’s parents relinquished such a significant degree of authority over Bjerke.

Section 321pA(c)

Finally, a special relationship did not exist between Johnson and Bjerke under section 324A(c) because the harm Bjerke suffered was not caused by her reliance or the reliance of her parents on Johnson’s undertaking. Reliance under section 324A(c) cannot be assumed. Rather, for liability to be imposed under section 324A(c), “there must be proof of actual reliance on a contractual undertaking or representations by the defendant that resulted in acts or omissions by the party relying on the defendant’s undertaking.” Smith v. Universal Underwriters Ins. Co., 732 F.2d 129, 131 (11th Cir.1984) (quoting *681Trosclair v. Bechtel Corp., 653 F.2d 162, 165 (5th Cir.1981)) (emphasis omitted); Deines, 752 F.Supp. at 996. As noted by the Wisconsin Court of Appeals, “case law applying this subsection generally focuses on reliance in the form of altering the precautions that might otherwise have been taken without the defendant’s undertaking.” Butler, 698 N.W.2d at 129.

The record does not support the conclusion of the concurrence that Bjerke’s “harm was suffered in some part because Bjerke’s parents relied upon Johnson to look after their daughter.” As explained earlier, it was understood that Bjerke was responsible for herself and that her parents had ultimate authority over her. The most telling indicator that Bjerke’s parents did not rely on Johnson is the failure of Bjerke’s mother to alert Johnson of her suspicion that Bjerke and Bohlman had an inappropriate relationship. If Bjerke’s parents actually relied on Johnson to protect their daughter, Bjerke’s mother would have certainly voiced her concerns to Johnson.

III.

This is, in many respects, a difficult case. It is undisputed that abhorrent conduct occurred here, and the presence of such conduct undoubtedly triggers the desire to hold someone responsible. But difficult facts, a sympathetic victim, and even the sound public policy of protecting children from sexual abuse should not obscure the significant expansion of third party liability undertaken by the majority today.

I agree with the majority’s conclusions that there are genuine issues of material fact as to whether Bohlman’s sexual abuse of Bjerke was foreseeable and that primary assumption of risk does not apply in this case. But, because a special relationship did not exist between Johnson and Bjerke under either section 314A or section 324A, Johnson did not have a duty to protect Bjerke from Bohlman’s sexual abuse. Therefore, I would hold that the district court properly granted partial summary judgment in Johnson’s favor.

I respectfully dissent.

. Restatement (Second) of Torts § 314A provides:

(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
*676(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

. The majority notes that “a parent whose child lives with her on a regular basis is more able to observe various changes in that child's behavior that could signal a negative influence on the child’s welfare.” For purposes of section 314A, however, we are only concerned with the availability of normal opportunities of self-protection, not whether a child's circumstances are conducive to being protected by another.

. The imposition of section 314A liability in this case is further complicated because the abuse was occurring prior to Bjerke’s residence at Island Farm.

. Although we did not note the error in Pagra, "[t]he reporter for this edition of the Restatement * * * has verified that the word protect’ which appears at this point is a typographical error and should read ‘perform.’ ” Hill v. U.S. Fid. & Guar. Co., 428 F.2d 112, 115 n. 5 (5th Cir.1970); see also Artiglio v. Coming Inc., 18 Cal.4th 604, 76 Cal.Rptr.2d 479, 957 P.2d 1313, 1317 n. 4 (1998); Smith v. Allendale Mut. Ins. Co., 410 Mich. 685, 303 N.W.2d 702, 706 n. 4 (1981); Miller v. Bristol-Myers Co., 168 Wis.2d 863, 485 N.W.2d 31, 38 n. 7 (1992).

. The Sixth Circuits interpretation of section 324A(a) is compelled by the language of the provision:

This must be so because the preliminary verbiage in Section 324A assumes negligence on the part of the defendant and further assumes that this negligence caused the plaintiffs injury. If we were to read subsection (a) as plaintiffs suggest, i.e., that a duty exists where the negligence increased the risk over what it would have been had the defendant exercised due care, a duty would exist in every case. Such a reading would render subsections (b) and (c) surplusage and the apparent purpose of all three subsections to limit application of the section would be illusory.

Myers v. United States, 17 F.3d 890, 903 (6th Cir.1994); see also Patentas, 687 F.2d at 716-17 (describing the language of section 324A(a) as assuming] that the injuries result in fact from the defendants negligent performance of his or her undertaking before it reaches the issue of increased risk); Butler v. Advanced Drainage Sys., Inc., 282 Wis.2d 776, 698 N.W.2d 117, 126-27 (Ct.App.2005) (quoting the Myers court’s interpretation of section 324A(a)), aff'd on other grounds, 294 Wis.2d 397, 717 N.W.2d 760 (2006).