Jane B. K. Doe, Appellant, vs. Centennial Independent School District No. 12, et al., Respondents, John O'Brien, Defendant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-413

 

Jane B. K. Doe,
Appellant,

vs.

Centennial Independent School District No. 12, et al.,
Respondents,
John O'Brien,

Defendant

 

Filed December 21, 2004

Affirmed in part, reversed in part, and remanded

Stoneburner, Judge

 

Anoka County District Court

File No. C50210740

 

Jeffrey R. Anderson, Robin R. LeDonne, Patrick W. Noaker, Jeff Anderson & Associates, P.A., E-1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)

 

Marie C. Skinner, Kimberly H. Boyd, Rider Bennett, L.L.P., Suite 4900, 33 South Seventh Street, Minneapolis, MN 55402 (for respondents)

 

Peter J. Horejsi, McCloud & Boedigheimer, P.A., Southgate Office Plaza, Suite 201, 5001 West 80th Street, Bloomington, MN 55437 (for defendant)

 

            Considered and decided by Schumacher, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

Appellant Jane B.K. Doe challenges summary judgment granted to respondents Centennial Independent School District No. 12 and Centennial Senior High School on appellant's claims of respondeat superior, negligence, negligent supervision, and negligent retention arising out of a teacher's sexual abuse of appellant.  Summary judgment was based on the district court's conclusion that, as a matter of law, the teacher's conduct was not foreseeable or known to respondents.  Because appellant failed to present evidence that the teacher's conduct was a well-known risk in the teaching profession and therefore within the scope of the teacher's employment, we affirm summary judgment dismissing appellant's respondeat superior and negligent supervision claims.  But because appellant presented sufficient evidence to create a genuine issue of material fact about whether respondents knew or should have known that the teacher was sexually abusing appellant, we reverse summary judgment granted on appellant's negligence and negligent-retention claims and remand for further proceedings on those claims.

FACTS

 

During the 1991-92 school year, when appellant was a 16-year-old-high-school junior, a 52-year-old teacher employed by respondents began to touch her inappropriately.  Some of the touching occurred at school during regular school hours.  By December 1991, the teacher had initiated a sexual relationship with appellant that lasted until 1998. 

In 2000, appellant sued the teacher for sexual battery and sued respondents for respondeat superior, negligence, negligent retention, and negligent supervision.  Respondents moved for summary judgment asserting immunity[1] and lack of foreseeability.  The district court granted summary judgment to respondents based on its conclusion that as a matter of law the teacher's acts were not foreseeable or known to respondents.  This appeal followed.

  D E C I S I O N

 

On appeal from summary judgment, we ask: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Summary judgment is properly granted if the pleadings, depositions, answers, admissions, and affidavits show that there are "no genuine issue[s] as to any material fact and that either party is entitled to a judgment as a matter of law."  Minn. R. Civ. P. 56.03.  The evidence is viewed "in the light most favorable to the party against whom judgment was granted."  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).  "[T]he party resisting summary judgment must do more than rest on mere averments."  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  "[A] ‘genuine issue' of material fact for trial ‘must be established by substantial evidence.'"  Id. at 70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).  "An affidavit supporting a motion inopposition to summary judgment must ‘be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.'"  Farendorff v. North Homes, Inc., 597 N.W.2d 905, 912 (Minn. 1999), quoting Minn. R. Civ. P. 56.05.

I.          Respondeat superior

            Under the principle of respondeat superior, an employer is vicariously liable for an employee's torts committed within the course and scope of employment.  Farendorff, 597 N.W.2d at 910.  "Such liability stems not from any fault of the employer, but from a public policy determination that liability for acts committed within the scope of employment should be allocated to the employer as a cost of engaging in that business."  Id.  The supreme court has interpreted the doctrine in Minnesota to hold an employer liable for even the intentional misconduct of its employees when "(1) the source of the attack is related to the duties of the employee, and (2) the assault occurs within work-related limits of time and place."  Id., citing Lange v. Nat'l Biscuit Co., 297 Minn. 399, 404, 211 N.W.2d 783, 786 (1973).  An "important consideration in determining whether an act is related to the duties of employment is whether the act was foreseeable."  Hagen v. Burmeister & Assoc., 633 N.W.2d 497, 504 (Minn. 2001). 

            In Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., the supreme court held that there was a fact issue as to whether the sexual advances made by a psychologist to patients during and immediately after therapy sessions in his office "were foreseeable, related to and connected with acts otherwise within the scope of employment."  329 N.W.2d 306, 311 (Minn. 1982).  In Marston, there was testimony that sexual relationships between a psychologist and a patient are a well-known hazard, therefore, to a degree, foreseeable and a risk of employment.  Id.  Even though teachers have power and authority over students, without evidence "that such [sexual] relationships between teacher and student are a ‘well-known hazard,' foreseeability [of such relationships] is absent." P.L. v. Aubert, 545 N.W.2d 666, 668 (Minn. 1996) (reinstating summary judgment to school district on student's claims based on sexual conduct by teacher, which supreme court concluded was not foreseeable and could not be considered an "indivisible" act directly related to teaching duties).

            At oral argument, counsel for appellant candidly admitted that appellant has failed to present evidence that sexual relationships between teachers and students are a "well-known hazard."  Counsel conceded that appellant is, therefore, not entitled to "implied foreseeability," as imposed in Marston, to create a question of fact sufficient to withstand summary judgment on the issue of whether the teacher's acts occurred within the scope of his employment.  But appellant asserts that, in this case, there are facts that the school district had actual notice that this particular teacher was sexually involved with appellant and that this actual knowledge establishes the requisite fact question on foreseeability to preclude summary judgment on her claim of respondeat superior.  We disagree.

            The supreme court has distinguished between the type of foreseeability required in direct negligence casesa level of probability which would lead a prudent person to take effective precautionsfrom the type of foreseeability necessary for respondeat superiorevidence that in the context of a particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.  Fahrendorff, 597 N.W.2d at 912. "[L]iability based on respondeat superior stems from public policy rather than from any fault of the employer . . . If we were to predicate liability in respondeat superior cases upon a showing that the employer should have reasonably anticipated the employee's specific misconduct, this distinction would be lost."  Id. (citation omitted.)

            We conclude, therefore, that because appellant in this case did not present evidence of the type of foreseeability essential to a claim of respondeat superior, the district court did not err in dismissing appellant's respondeat superior claim, despite the existence of evidence that respondents knew or should have known that the teacher was abusing appellant.

 

II.        Negligence claims

Minnesota recognizes three negligence causes of action against an employer for injuries caused by one of its employees: negligent hiring,[2] negligent retention, and negligent supervision.  M.L. v. Magnuson, 531 N.W.2d 849, 856 (Minn. App. 1995), review denied (Minn. July 20, 1995).  Appellant asserted claims of negligence, negligent retention, and negligent supervision against respondents.  The district court dismissed all of appellant's negligence-based claims on the grounds that appellant did not present sufficient evidence that the teacher's conduct was foreseeable or known to the district.

"Negligent supervision derives from the doctrine of respondeat superior so the claimant must prove that the employee's actions occurred within the scope of employment in order to succeed on this claim."  M.L., 531 N.W.2d at 858.  "Negligent supervision is the failure of an employer to exercise ordinary care in supervising the employment relationship so as to prevent foreseeable misconduct of an employee from causing harm to others."  Olson v. First Church of Nazarene, 661 N.W.2d 254, 264-65 (Minn. App. 2003).  Because negligent supervision requires the same type of foreseeability necessary to sustain an action under respondeat superior, we conclude that the district court did not err by granting summary judgment on appellant's negligent supervision claim for failure to present evidence sufficient to raise a fact question that the teacher's acts were a foreseeable risk of the student-teacher relationship.

Negligent retention, however, arises "when an employer becomes aware or should have become aware that an employee poses a threat and fails to take remedial measures to ensure the safety of others."  Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 540 (Minn. App. 1997), review denied (Minn. June 11, 1997).  The focus in a negligent-retention claim is

what the [employer] knew or should have known about [the employee's] propensity to engage [in improper sexual conduct] and if there was such knowledge, whether the [employer] acted reasonably to prevent such conduct toward [the plaintiff]. . . [t]he issue for the district court is whether the [employer] acted reasonably after it became aware or should have become aware of any problems with [the employee].

 

Olson, 661 N.W.2d at 264.

Respondents argue that they cannot be held liable for negligent retention because they did not have actual notice of an improper relationship between the teacher and appellant.  But actual knowledge is not required for liability under a negligent-retention theory.  Case law establishes that being "reasonably . . . on notice" of a problem with an employee such that the employer "should have been aware" of an employee's propensities is sufficient.  M.L., 531 N.W.2d at 857-858, (holding that either actual knowledge of employer or being "on notice" creates basis for negligent-retention liability).

Appellant relies extensively on her own testimony about what she believes other teachers and students at the high school knew and her assertions that there was general gossip about her relationship with the teacher.  The district court did not err by concluding that this testimony was in the nature of "mere averments," insufficient to create a genuine issue of material fact with regard to whether the district knew or should have known the teacher was abusing her.  See DLH, Inc., 566 N.W.2d at 71.  But appellant also submitted the teacher's deposition testimony, not addressed by the district court, that at the beginning of the 1993 school year he was called to the office of the high school's human resources director (Jablinski) and was told that there had been complaints that the teacher might be in an intimate relationship with one of his aides.  The teacher asked "what should I do," and Jablinski said it would be a good idea not to have her as an aide.  The teacher then dismissed appellant as his aide.  And, Jablinski testified in his deposition that he had dealt with approximately five instances of sexual relationships between teachers and students in his career and that staff was generally aware that such relationships were a potential problem.

Evaluating this evidence in the light most favorable to appellant, as we must on review of a summary judgment, we conclude that it is sufficient to raise a genuine dispute of material fact about respondents' awareness of the teacher's relationship with appellant sufficient to make summary judgment on the appellant's claim of negligence[3] and negligent retention inappropriate.

Affirmed in part, reversed in part, and remanded. 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Respondent's claims based on immunity were not addressed by the district court and were not raised in this appeal.

[2] Negligent hiring, not involved in this case, is "the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position which, because of the circumstances of employment, it should have been foreseeable that the hired individual posed a threat of injury to others.  M.L. v. Magnuson, 531 N.W.2d 849, 857 (Minn. App. 1995), review denied (Minn. July 20, 1995).

[3] There is no discussion of appellant's negligence claim by the district court or by the parties on appeal.  Our opinion only relates to the type of forseeability required, which is the same as for a negligent-retention claim.