Fahrendorff v. North Homes

• Decision Date: 05 August 1999
• Docket Number: No. C0-98-129.,C0-98-129.
• Citation: 597 N.W.2d 905
• Parties: Michelle FAHRENDORFF, By and Through her parent and natural guardian, Russell FAHRENDORFF, petitioner, Appellant, v. NORTH HOMES, INC., d/b/a I.T.A.S.K.I.N. House, Respondent.
• Court: Minnesota Supreme Court

597 N.W.2d 905

Michelle FAHRENDORFF, By and Through her parent and natural guardian, Russell FAHRENDORFF, petitioner, Appellant, v. NORTH HOMES, INC., d/b/a I.T.A.S.K.I.N. House, Respondent.

No. C0-98-129.

Supreme Court of Minnesota.

August 5, 1999.

Gerald W. VonKorff, Rinke-Noonan, St. Cloud, for appellant.

Patricia Kuderer, Hoff, Barry & Kuderer, Eden Prairie, for respondent.

Children's Law Center of MN, Gail Chang Bohr, Samantha Gemberling, St. Paul, Laurie J. Miller, Cynthia Jokela, Fredrikson & Bryon, P.A., Minneapolis, for amicus curiae, Children's Law Center of Minnesota.

Bruce A. Beneke, Janet C. Werness, Southern MN Reg. Legal Serv., St. Paul, for amicus curiae Southern Minnesota Regional Legal Services and the Minnesota Coalition for Battered Women.

Ellen G. Sampson, Daniel L. Palmquist, Leonard Street & Deinard, P.A., Minneapolis, for amicus curiae NonProfit Insurance Ass'n.

Samuel E. Orbovich, Orbovich & Gartner Chartered, St. Paul, for amicus curiae Minnesota Council of Child Caring Agencies.

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

OPINION

GILBERT, Justice.

This is an appeal from a court of appeals decision affirming summary judgment in favor of respondent. We must determine whether there exist any genuine issues of material fact or errors in the application of the law with respect to appellant's claim that the sexual assault committed by an employee of respondent fell within the scope of his employment. When viewed in the light most favorable to the appellant, the evidence suggests that the source of the assault was related to the employment duties of the assailant-employee. Accordingly, we reverse and remand for trial.

Respondent North Homes, Inc. is a nonprofit corporation that owns and operates the I.T.A.S.K.I.N. House, a temporary crisis shelter, i.e., group home. I.T.A.S.K.I.N. House is licensed by the Minnesota Department of Corrections and the Minnesota Department of Human Services to provide 24-hour residential care for up to seven persons under the age of 18. On April 10, 1995, Michelle Fahrendorff, then 15 years old, was placed in I.T.A.S.K.I.N. House on a 72-hour hold after she reported an argument she had with her parents to the Aitkin County Sheriff's Department. See Minn.Stat. § 260.165, subd. 1(c)(2) (1998). After a hearing on April 13, 1995, Fahrendorff's stay was extended to April 18. See Minn.Stat. § 260.172, subd. 1 (1998). While at I.T.A.S.K.I.N. House, Fahrendorff was sexually assaulted by David Kist, a program counselor at the home. Her claims against North Homes stem from that assault.

Kist was hired as a program counselor at I.T.A.S.K.I.N. House in December 1993. North Homes conducted a criminal background check as required by the Department of Human Services. See Minn.Stat. § 245A.04, subd. 3 (1998); Minn. R. 9543.0040, subp. 3 (1997). These checks revealed that Kist had no criminal history. North Homes also contacted several of Kist's former employers and personal references, none of whom gave any indication that Kist was unfit for the program counselor position.

Program counselors at I.T.A.S.K.I.N. House fulfilled the role of "group home parents" as defined in Minn. R. 9545.1420, subp. 4 (1997). According to North Homes' policy manual, counselors were responsible "for the management, supervision and attention of youth placed in the shelter's care" and were to help "provide a safe and secure environment for shelter residents." Counselors working the midnight shift were required to perform multiple "bed checks" of residents each night and had complete access to the residents' bedrooms for that purpose. Counselors, however, were instructed to avoid physical contact with residents whenever possible to prevent questions of inappropriate contact. North Homes also instructed counselors to avoid relationships that "might increase risk of client/resident exploitation in any form," and counselors were required to report any physical or sexual abuse of residents.

At Kist's six-month review, his supervisor rated Kist's performance as "satisfactory." In the summer and fall of 1994, however, two complaints were lodged against Kist alleging improper conduct toward female residents. North Homes spoke to Kist about the incidents and noted them in Kist's personnel file, but determined that no disciplinary action was necessary.

On April 15, 1995, Kist was scheduled to work the midnight to 8:00 a.m. shift at I.T.A.S.K.I.N. House. At that time, Fahrendorff and two juvenile males were the only residents of I.T.A.S.K.I.N. House. Consistent with I.T.A.S.K.I.N. House's policy of maintaining a ratio of one counselor for every four residents, Kist was the only program counselor on duty that morning.

Shortly after he came on duty, Kist let an unauthorized male friend into I.T.A.S.K.I.N. House. The two began drinking beer and making a lot of noise. Eventually, Fahrendorff, who had gone to bed, went upstairs to where Kist and his friend were and asked the men to be quiet so she could sleep. Fahrendorff then returned to her room. Kist later went to Fahrendorff's bedroom, offered her a cigarette, and asked her not to say anything about his behavior. He told her that he would shut off the smoke alarms so that she could smoke the cigarette. Fahrendorff accepted the cigarette, went to the bathroom to smoke it, and then returned to bed.

Either shortly after Fahrendorff first asked Kist and his friend to be quiet or shortly after Kist gave Fahrendorff the cigarette, Kist's friend left. At that point, Kist was the only employee and the only adult in I.T.A.S.K.I.N. House. Fahrendorff was alone in her room and the two juvenile male residents were upstairs in a separate bedroom.

Sometime during the early morning hours of April 15, Kist returned to Fahrendorff's room carrying two cans of beer. Kist offered one of the beers to Fahrendorff who accepted it. Kist then sat on Fahrendorff's bed and began talking with her. He told Fahrendorff that he would help her to get released from I.T.A.S.K.I.N. House, that he could help her get emancipated from her parents, and that he would take care of her. Eventually the nature of the conversation changed and Kist began telling Fahrendorff that she was "pretty" and "hard to resist." Kist then kissed Fahrendorff and began making other sexual advances towards her.

Kist left Fahrendorff's room several times thereafter to answer the house phone but each time returned and continued to make sexual advances towards Fahrendorff. Fahrendorff tried to refuse Kist's advances and at one point went upstairs to the room of the two juvenile male residents for help, but the male residents refused to let her stay in their room. Over the course of his shift, Kist repeatedly kissed Fahrendorff, touched her breasts with his hands and mouth, and touched her genitals over her clothes. In I.T.A.S.K.I.N. House's daily shift log, however, Kist reported that Fahrendorff had "slept all night."

Fahrendorff did not report the incident to the female counselor who was on duty from 8:00 a.m. to 4:00 p.m. on April 15. Kist again came on duty at approximately 4:00 p.m. According to Fahrendorff's original statement to the police, Kist asked her several times during this shift if he could "hold" her again that evening but there was no further sexual contact. In a subsequent deposition, however, Fahrendorff said that Kist kissed her on her cheek on the evening of April 15.

On April 16, 1995, Easter Sunday, Fahrendorff was permitted to leave I.T.A.S.K.I.N. House to have dinner with her family. She told her family about Kist's actions and her parents took her to the Itasca County Sheriff's Department where Fahrendorff reported the incident. Kist was immediately suspended from duty. North Homes and the sheriff's department investigated the incident. North Homes terminated Kist on May 26, 1995. Kist subsequently pled guilty to charges of introducing contraband into a correctional facility in violation of Minn.Stat. § 641.165, subd. 2(a) (1998), and second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subds. 1(b), 2 (1998).

On December 30, 1996, Fahrendorff served a civil complaint against North Homes. In the complaint, Fahrendorff alleged that North Homes was liable for assault and battery, sexual abuse, and infliction of emotional distress under doctrines of respondeat superior and aiding and abetting. Fahrendorff also asserted a general claim of negligence and claims of negligent supervision, training, retention, and hiring.

North Homes moved for summary judgment on all counts. In response, Fahrendorff submitted an affidavit from John Krueger, the director of the St. Cloud Children's Home and a licensed psychologist and social worker, who had worked in the area of juvenile residential care since 1974. Among the statements set forth in Krueger's affidavit was his conclusion that, "inappropriate sexual contact or abuse of power in these situations, although infrequent, is a well known hazard in this field."

The trial court granted summary judgment in favor of North Homes, concluding that Fahrendorff had failed to raise any issue of material fact with respect to any of her claims and that North Homes was entitled to judgment as a matter of law. With respect to Fahrendorff's respondeat superior claim, the court concluded that "[t]he sexual contact was for Kist's personal sexual gratification and was not in furtherance of his employment duties." Thus, the court concluded Kist was not acting within the scope of his employment when he committed the assault, and North Homes could not be held liable for Kist's acts. The court also ruled that Krueger's affidavit was insufficient to create a factual question as to whether Kist's abuse was foreseeable by North Homes because it "state[d] no opinion on whether it was foreseeable that David Kist would commit an act of sexual abuse."

The Minnesota Court of Appeals affirmed the summary judgment order of the...