Andrade v. Ellefson
| Decision Date | 15 August 1986 |
| Docket Number | No. C4-85-554,C4-85-554 |
| Parties | John ANDRADE, individually and as parent and natural guardian for Joseph J. Andrade, and Dennis W. Aasen, individually and as parent and natural guardian for Jerrett J. Aasen, Respondents, v. Elizabeth ELLEFSON, et al., Defendants, County of Anoka, Petitioner, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. A county, acting on behalf of the state in inspecting day care facilities for state licensure, is immune from tort liability under Minn.Stat. § 3.736, subd. 3 (1984), but the county waives its defense of governmental immunity by procuring liability insurance to the extent stated in the insurance policy.
2. A special relation exists between a county investigating day care facilities for licensure and the small children in the facilities giving rise to a tort duty of care owed by the county to the children who constitute a protected class under the analysis set out in Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn.1979).
3. It is premature in this motion for summary judgment to consider issues of causation.
Robert M.A. Johnson, Anoka Co. Atty., Thomas G. Haluska, Asst. Co. Atty., Anoka, for appellant.
F. Dean Lawson, John F. Laue, Minneapolis, for respondents.
Heard, considered, and decided by the court en banc.
This case raises issues of tort liability and governmental immunity for a county's role in state licensure of day care facilities. We conclude a tort duty of care is owed the plaintiffs and that the county has governmental immunity which, however, has been waived to the extent of the county's liability insurance. For the reasons set out, we affirm in part and reverse in part the court of appeals' decision.
Plaintiffs are two infants, Joseph J. Andrade and Jerrett J. Aasen, who by their fathers bring this action for personal injuries against defendants Elizabeth Ellefson and her husband, operators of a day care center in Anoka County, and against defendant County of Anoka. On December 12, 1982, Joseph Andrade, age 7 months, was injured while at the Ellefson day care center, apparently sustaining a skull fracture and developing epilepsy. On May 26, 1983, Jerrett Aasen, age 7 months, sustained serious injuries while at the Ellefson home, apparently consisting of a subarachnoid hemorrhage, consistent with either a fall or a violent shaking. The child was found to also have a 2- to 4-week-old arm fracture.
Plaintiffs allege a special relation between themselves and Anoka County giving rise to a special duty on the part of the county to perform its governmental function of license inspection and supervision of the Ellefson day care home with due care, and that this duty was negligently performed, causing the children's injuries. The trial court granted the county's motion for summary judgment and, to permit immediate appeal, found no just reason for delay and directed entry of judgment. Minn.R.Civ.P. 54.02; Minn.R.Civ.App.P 104.01. The trial court felt there was a fact issue on whether a special relation existed, but dismissed the action on the grounds of governmental immunity. The court of appeals ruled a special duty existed as a matter of law on this record and, further, that there was no immunity. Andrade v. Ellefson, 375 N.W.2d 828 (Minn.Ct.App.1985). We granted the county's petition for further review.
Licenses for day care centers are issued by the Commissioner of Human Services for the State of Minnesota, with the assistance of local county welfare agencies in conducting on-site evaluations and inspections. See Minn.Stat. § 245.804 (1984). Ellefson was originally licensed in December 1974 to care for a maximum of five children in her home. 1 From 1975 through 1979, personnel from the Anoka County Community Health and Social Services Department conducted an annual relicensing inspection, and each year recommended license renewal. The initial 1974 report said Leslie Ansleigh, 21, who came from a foster home for retarded teenagers, was living in the home; 2 however, Terry Nagel, the county investigator from 1974 to 1980, testified she did not recall Leslie Ansleigh residing there during those years. The 1975 inspection report noted Ellefson sometimes took care of eight or nine children, but not always at the same time. In April 1979, Ellefson voluntarily stopped providing day care, informing the county she wanted to work outside the home. In January 1980, Ellefson applied for reissuance of her license, which was granted on the county's recommendation. Annual inspections were conducted each year thereafter, except for 1981 when the county apparently forgot to do one.
The annual inspections were always scheduled with the home operators. James Eyer, who was the county inspector from 1980 on, conducted two unannounced inspections of the Ellefson home in response to complaints of overcrowding. In January 1982, Eyer made a surprise visit and found six children, one over the maximum, but was told it was one child's last day. Eyer concedes he only checked the main floor of the house. Another time Eyer drove by the Ellefson home to check a complaint that the Ellefsons' backyard was full of children but Eyer did not see any children in the yard. In making his January 1982 annual inspection, Eyer says he probably met Leslie Ansleigh and was aware Leslie was partly involved in taking care of the children.
When Joseph Andrade was injured in December 1982, an investigation of the home was conducted by Barbara Ingrassia of the Anoka County Child Protection Unit to determine if the child had been abused. By the time of this lawsuit, the file had been destroyed pursuant to statute, indicating any report of physical abuse could not be substantiated. 3
In January 1983, Ellefson was again inspected for license renewal, and Eyer says Ellefson told him Leslie was no longer living in the home. As part of the inspection, the county had also sent out evaluation forms to some of the parents. There were no negative responses; Joseph Andrade's mother returned a very favorable evaluation with no mention of her infant's injury. (Indeed, at no time apparently did any of the parents ever complain to the county about overcrowding or other problems.) Again the Ellefson license, on the county's recommendation, was renewed. About 5 months later, on May 26, 1983, plaintiff Jerrett Aasen sustained his injuries.
On Friday, May 27, 1983, the day after the Aasen incident, Eyer and Ingrassia went to the Ellefson home and found 13 children in the home, all on the main floor. Ingrassia reported the house was hot, dark, and overcrowded, and that the children were all strangely silent. The following Monday, Eyer went to the home but was denied entrance. On June 2, Ellefson's day care license was suspended. Subsequently, the license was revoked on the county's recommendation which was based on the circumstances of the Aasen injury, the presence of 13 children in the home on May 27, the fact the inspector had been denied entrance, and because the county had since learned of alleged incidents of sexual abuse by Leslie Ansleigh several years before. As to this last item, the county discovered that Ellefson had stopped providing day care in April 1979, not because she wanted to work outside the home as she had stated, but because two mothers had discovered their daughters had been molested by Leslie. The mothers had agreed not to report the incidents in return for Ellefson's promise to stop providing day care and to seek professional help for Leslie.
In claiming the county's inspections were inadequate and negligently performed, plaintiffs rely heavily on the deposition testimony of Jane Wedlund. From 1971 to 1984, Mrs. Wedlund was Ellefson's next-door neighbor and, for about the last 4 years, operated a licensed day care center in her home, too. Wedlund testified she made numerous complaints to Anoka County welfare authorities about overcrowding in the Ellefson home, but her complaints were ignored and, at least once, she was told she was a troublemaker and should mind her own business. It is unclear if Wedlund ever complained to the county about physical child abuse in the Ellefson home.
Inspector Terry Nagel testified she recalled conversations with Wedlund in early 1979, possibly on overcrowding, but does not remember if the complaints were investigated. Inspector James Eyer concedes Wedlund made several calls, but apparently he did not give much credence to the complaints because they seemed, in part, bizarre (e.g., Leslie Ansleigh was being held as a slave by Betty Ellefson and the Ellefsons had a secret tunnel between their house and garage), and because he felt Wedlund's motives, as a competing day care provider, were suspect. Another county employee, Sandra English, testified Wedlund made several "far-fetched" accusations. Nonetheless, it was because of Wedlund's complaints that Eyer made the two previously mentioned nonscheduled visits to the Ellefson home.
For there to be a claim of tort liability, the county, as a governmental unit, must owe the plaintiffs a duty different from that owed the general public. This issue involves Cracraft v. St. Louis Park, 279 N.W.2d 801 (Minn.1979), where we discussed the factors involved in determining whether a special duty exists. If, however, the county is immune from tort liability, as the trial court found, we need not reach the special duty issue, so we will discuss governmental immunity first.
1. Under Minn.Stat. § 466.03, subd. 6 (1984), a political subdivision is not liable for "discretionary acts." Contrary to its contention, we hold the defense of discretionary act tort immunity is not available to Anoka County here. The license inspections conducted by the county were not at the planning or policy level where discretionary immunity usually applies. See Wilson v. Ramacher, 352 N.W.2d 389 (Minn.1984). 4
2. Anoka County, however, raises a further...
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