Bjerke v. Johnson

Decision Date27 December 2007
Docket NumberNo. A06-117.,A06-117.
PartiesAja BJERKE, Respondent v. Suzette E. JOHNSON, Appellant, and Kenneth D. Bohlman, Defendant.
CourtMinnesota Supreme Court

Dennis P. Moriarty, Kevin J. Wetherille, Jaspers, Moriarty & Walburg, P.A., Shakopee, MN, for Respondent.

John M. Riedy, Jorun Groe Meierding, Maschka, Riedy & Ries, Mankato, MN, for Appellant.

Heard, considered, and decided by the court en banc.


HANSON, Justice.

The issues presented in this appeal are whether a homeowner has a duty to protect a child invitee from sexual abuse by another adult resident in the home and whether the child has the legal capacity to assume the risk of that abuse. Between the ages of 14 and 18, respondent, Aja Bjerke, stayed at Island Farm, a horse farm owned by appellant Suzette E. Johnson, for progressively longer periods. During this time, Bjerke entered into a sexual relationship with Johnson's adult live-in male friend, Kenneth D. Bohlman. Bohlman was subsequently convicted of criminal sexual conduct stemming from that relationship, and Bjerke brings this negligence action, asserting that Johnson failed to protect her from the sexual abuse.1 The district court granted partial summary judgment dismissing the negligence claims against Johnson, holding that Johnson had no duty to protect Bjerke and that Bjerke's assumption of the risk of sexual abuse barred Bjerke's claims against Johnson. The court certified these issues for immediate appeal. The court of appeals reversed, and we granted Johnson's petition for review. We affirm the court of appeals, though on slightly different grounds.

Because the issues are presented in the context of a summary judgment motion, we glean the facts primarily from the affidavits submitted by each party in support of and in opposition to that motion. But the parties have agreed that, in addition to the exhibits incorporated in the affidavits, the district court was authorized by the parties to rely on all of the deposition transcripts that were filed with the court. Accordingly, we will not limit our description of the facts to those specifically referred to in the affidavits.

Island Farm is a horse farm owned by Johnson, where she resided with her boyfriend, Bohlman. Johnson often invited children between the ages of 13 and 18 to visit Island Farm and stay for one or two weeks at a time. During these stays, the children would take riding lessons and learn about horses. In the spring of 1997, Aja Bjerke, then age 14, began visiting Island Farm. During her time at the farm, Bjerke took riding lessons and performed basic farm chores. Bjerke also accompanied Johnson and Bohlman to horse shows.

Bjerke's first visits to Island Farm were relatively short, but in July 1997 Johnson asked for and received permission from Bjerke's parents for Bjerke to stay at Island Farm for two-and-a-half weeks. During the next three school years, Bjerke visited the farm on a regular basis. Initially, Bjerke spent one or two weekends each month at the farm. Then she spent the entire summers of 1998 and 1999 at the farm. From September of 1999 through March of 2000, Bjerke spent almost every weekend either at Island Farm or with Johnson and Bohlman at horse shows. Beginning in the spring of 2000, Bjerke resided full-time at Island Farm until her departure in October of 2001 at age 18.

Johnson admitted that she took some level of responsibility for Bjerke when Bjerke stayed at Island Farm. Although Johnson believed that Bjerke remained under her parents' control, she expected Bjerke to mind her manners, to tell someone in the house whenever she would leave, and to follow Johnson's ground rules against swearing, vulgarity, drinking, and fraternization with boys. Johnson said that she imposed these rules so that her name and reputation would not be disparaged by the behavior of those associated with her.

Johnson acknowledged that Bjerke's parents believed that she would keep their daughter safe from injury. Johnson also had Bjerke's parents sign a release form so that she could obtain medical care for Bjerke if necessary. Bjerke's mother testified that she relied on Johnson and Bohlman as responsible adults to provide the care she was unable to provide while her daughter was away.

No money was paid by the Bjerke family for Bjerke's care, but Johnson indicated that the money was not an issue for her. Due to what she perceived as Bjerke's difficult family life at home, Johnson wanted to expose her to a "more stable environment" at Island Farm. Johnson later told Bjerke's parents that she treated Bjerke like "family."

In April 2002, Bjerke informed law enforcement officials that Bohlman had sexually abused her for several years at Island Farm. Following an investigation into Bjerke's allegations, Bohlman was arrested and subsequently convicted of two counts of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct.

Bjerke admits that she was not forced to engage in sexual conduct with Bohlman at any time. She also admits that she never informed Johnson of her relationship with Bohlman, but instead went to "considerable lengths" to keep the relationship a secret. When asked why she hid the relationship, Bjerke stated that it was because she loved Bohlman and did not want him to get into trouble.

Bjerke brought this action alleging, in part, that Johnson was negligent in failing to protect her from Bohlman's sexual abuse. Johnson moved for partial summary judgment to dismiss all negligence claims on the grounds that there was no special relationship between Bjerke and Johnson, that the sexual abuse was not foreseeable, and that the defense of assumption of the risk barred Bjerke's claims. The district court granted Johnson's partial summary judgment dismissing the negligence claims on all three grounds, but certified the issues for immediate appeal. The court of appeals reversed, holding that (1) a special relationship had been shown; (2) material fact issues precluded summary judgment on foreseeability; and (3) the doctrine of assumption of the risk did not apply. Bjerke v. Johnson, 727 N.W.2d 183, 189-96 (Minn. App.2007).

On review of a grant of summary judgment, we inquire (1) whether there exists a genuine issue of material fact; and (2) whether the district court erred in its application of the law. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). In reviewing the record for the existence of a genuine issue of material fact, we view the evidence "in the light most favorable to the party against whom summary judgment was granted." O'Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). When the relevant material facts are not in dispute, the district court's interpretation of the law is reviewed de novo. Leamington Co. v. Nonprofits' Ins. Ass'n, 615 N.W.2d 349, 353 (Minn.2000).


The basic elements of a negligence claim are: (1) existence of a duty of care; (2) breach of that duty; (3) proximate causation; and (4) injury. Schmanski v. Church of St. Casimir of Wells, 243 Minn. 289, 292, 67 N.W.2d 644, 646 (1954). The existence of a duty of care is the element at issue in this appeal. Generally, we regard the existence of a duty as a question of law, which we review de novo. H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn.1996).

Bjerke does not assert that Johnson negligently caused the sexual abuse, but that Johnson failed to protect Bjerke from such abuse. As a result, special considerations come into play. Generally, no duty is imposed on an individual to protect another from harm, even when she "realizes or should realize that action on [her] part is necessary for another's aid or protection." Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn.1979). A duty to protect will be found, however, if (1) there is a special relationship between the parties; and (2) the risk is foreseeable. Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn.1989).

A. Special Relationship

The first prerequisite to a finding of a duty to protect another from harm is the existence of a special relationship between the parties. A special relationship can be found to exist under any one of three distinct scenarios. The first arises from the status of the parties, such as "parents and children, masters and servants, possessors of land and licensees, [and] common carriers and their customers." Delgado, 289 N.W.2d at 483-84; Restatement (Second) of Torts §§ 314A, 315 (1965). The second arises when an individual, whether voluntarily or as required by law, 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); Restatement (Second) of Torts § 314A (1965). The third arises when an individual assumes responsibility for a duty that is owed by another individual to a third party. For example, one has a duty to act when he "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," and liability will be imposed if (1) his failure to act increases the risk of harm; (2) he undertook a duty owed by the other to the third party; or (3) the harm is suffered because the other or the third person relied on the undertaking. Walsh v. Pagra Air Taxi, Inc., 282 N.W.2d 567, 571 (Minn.1979); Restatement (Second) of Torts § 324A (1965). Under the facts presented here, we need consider only the second and third types of special relationships.

As to the second type of special relationship, Bjerke argues that Johnson took custody of her under circumstances in which Bjerke's normal means of self-protection were unavailable. Although Johnson was never given legal custody of Bjerke, there is evidence to show that Johnson accepted entrustment of some level of care for Bjerke when Bjerke stayed at Johnson's home, at a location distant from her...

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