Doe v. Brainerd Intern. Raceway, Inc., No. C4-93-1734

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: GARDEBRING; COYNE
• Citation: 533 N.W.2d 617
• Parties: Jane DOE, Respondent, v. BRAINERD INTERNATIONAL RACEWAY, INC., North Country Security, Inc., Petitioners, Appellants.
• Docket Number: No. C4-93-1734
• Decision Date: 30 June 1995

Page 617

533 N.W.2d 617 Jane DOE, Respondent,
v.
BRAINERD INTERNATIONAL RACEWAY, INC., North Country
Security, Inc., Petitioners, Appellants. No. C4-93-1734. Supreme Court of Minnesota. June 30, 1995.

Page 618

Syllabus by the Court

1. Minn.Stat. § 617.246 (1988) does not provide a statutory basis for a civil cause of action.

2. A landowner does not owe a duty of care to warn or protect a known trespasser from risks which the trespasser helped to create and knew or, from the facts, should have known.

James M. Sherburne, Sherburne Law Offices, Minneapolis, for respondent.

Robert G. Haugen, Johnson & Lindberg, Minneapolis, for appellant Brainerd Intern. Raceway, Inc.

Richard L. Pemberton, Jr., W.C. Flaskamp, Meagher & Geer, Minneapolis, for appellant North Country Sec., Inc.

OPINION

GARDEBRING, Justice.

This appeal arises out of an action brought by Jane Doe ("plaintiff"), a minor at the time of the events at issue, alleging that Brainerd International Raceway ("BIR") and its security

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firm, North Country Security ("NCS"), breached their duty to her by failing to prevent the harm to her which occurred as a result of her involvement in a wet T-shirt contest. The contest turned into a sexual performance in which the plaintiff participated. The outcome of the case turns on the extent of the duty owed by a landowner and operator of a place of amusement to a trespasser in a civil cause of action for injuries resulting from the criminal activity of third parties. We reverse the court of appeals and hold that a landowner does not have a duty of care to a trespasser when the trespasser knows or should be aware of the risks involved and helped create the risks.

In 1988 the annual Quaker State Northstar National Drag Race was held at BIR from August 17 through August 20. BIR contracted with NCS to perform security activities at the event. Management of BIR and NCS met on several occasions to discuss security plans for the 1988 event. NCS president Keith Emerson (Emerson) testified that at the security planning meetings, everyone was aware of the 1987 wet T-shirt contest, which involved complete nudity. BIR and NCS agreed upon a security plan which called for preventing a wet T-shirt contest from taking place on the premises.

The wet T-shirt contest was planned and organized by Jeffrey Borden and Gregory Peterson, spectators at the drag racing event, neither of whom was employed by BIR or NCS. Borden stated that he arrived at the raceway on August 16, 1988, and spoke with Emerson about having the contest. Borden claimed that Emerson approved the holding of the wet T-shirt contest. In preparation for the contest, Borden distributed printed fliers with the time and location of the contest, rented a scaffolding to construct a stage, placed an ice cream bucket with a sign to solicit donations for the contest and hung a banner in the trees which announced that at 8 p.m. on Saturday, August 20, there would be a wet T-shirt contest on the premises.

Emerson learned on Saturday afternoon that the wet T-shirt contest was planned for 8 p.m. in "the zoo," the general camping area at BIR. ¹ When Emerson received a message over his portable radio that the contest had begun, he told his security officers to observe the area until he got there. By the time Emerson assembled additional security guards and arrived at the scene, the crowd was disbursing and no action was taken.

At the time of the event, plaintiff was one month away from her seventeenth birthday. A couple of months earlier, in June of 1988, she had participated in a bikini contest and a wet T-shirt contest in Fountain City, Wisconsin. Neither of these contests involved any nudity. Plaintiff ran away from her home in Winona to attend the Brainerd races with three friends, arriving in Brainerd on Friday, August 19, 1988. Without paying the admission fee, she obtained a pass and entered BIR's premises. NCS and BIR knew that it was common for people to enter the premises without paying for an admission pass.

Plaintiff spent Friday evening drinking and partying. On Saturday, plaintiff began drinking vodka and orange juice at 11 a.m. and continued drinking one drink every half hour until 7 p.m. Plaintiff also inhaled an unknown amount of cocaine throughout the day. Sometime on Saturday, plaintiff learned about a wet T-shirt contest to be held that evening on the BIR premises. She was told that winners of the contest would be awarded a trophy and cash prizes.

Plaintiff voluntarily entered the wet T-shirt contest which began with water being poured over the front of the contestants' shirts. Within fifteen minutes contestants began stripping. At that point, most of the contestants left the stage, but the four or five women remaining on stage continued a sexual performance which included complete nudity and oral sex. The crowd, predominantly men, was estimated at more than two thousand. The contest lasted approximately one hour.

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While on stage plaintiff exposed her breasts to the crowd, lifted her dress, took her shirt off, took her skirt off and dropped her G-string. Plaintiff also accepted beer from the audience and periodically blew kisses and waved to the crowd. Peterson lifted plaintiff into the air several times. The sexual performance on stage between Peterson and plaintiff included digital penetration and oral sex. Plaintiff testified that although she was not forced into her actions on stage, Peterson encouraged her to continue with the sexual display so that she could win the contest. She testified that she was drunk and high on cocaine during the contest, but was aware that she was on stage in front of an audience.

Borden and Peterson were criminally prosecuted and convicted of using minors in a sexual performance in violation of Minn.Stat. § 617.246, subd. 2 (1988). Plaintiff brought a negligence action against BIR and NCS resulting from the wet T-shirt contest. The trial court granted summary judgment for defendants, concluding that defendants owed no duty to plaintiff and that the proximate cause of any injury was her own voluntary action. The court of appeals reversed, finding both a common law duty and a statutory duty arising out of Minn.Stat. § 617.246.

In order to prevail on her negligence claim, plaintiff must show: (1) a duty; (2) a breach of that duty; (3) causation; and (4) compensable injury. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn.1982). We begin with the question of whether a duty exists at all under these facts. ² Such a duty may be a matter of common law or may arise under a statute. We consider first whether the criminal statute, Minn.Stat. § 617.246, subd. (2) (1988), imposes any duty of care upon defendants. Minn.Stat. § 617.246 provides, in relevant part:

Subd. 2. Use of minor...