Larson v. Larson, C4-83-470

• Decision Date: 23 August 1985
• Docket Number: No. C4-83-470,C4-83-470
• Citation: 373 N.W.2d 287
• Parties: Bruce LARSON, Respondent, v. Richard A. LARSON, Appellant.
• Court: Minnesota Supreme Court

Page 287

373 N.W.2d 287

Bruce LARSON, Respondent, v. Richard A. LARSON, Appellant.

No. C4-83-470.

Supreme Court of Minnesota.

Aug. 23, 1985.

Syllabus by the Court

A possessor of land has no duty to warn an entrant of threats received concerning his property when any risk that the threat will mature into harm is speculative and not reasonably foreseeable.

John D. Kelly, Richard J. Leighton, Duluth, for appellant.

Gerald W. Murphy, James D. Robinson, Jr., Duluth, for respondent.

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

KELLEY, Justice.

The issue in this case is whether a police officer who, during the course of an arrest of an intoxicated driver, received a vague threat that the offender might "get" his house, had a duty to warn his brother of that threat when he left the house in the care of that brother two months later. Based on the circumstances of this case, we hold that he had no duty to warn.

Appellant Richard Larson was an officer with the Two Harbors' Police Department. On April 26, 1981, as part of his official duties, he stopped a speeding vehicle. The driver was intoxicated. Marijuana as well as open intoxicating liquor containers were found in the vehicle. During the course of the stop and subsequent arrest, the driver threatened appellant's property. ¹ The threat was recorded by appellant in his police report. He had, however, received previous threats during the course of his duties as a police officer from persons he had sought to arrest.

Approximately two months later, near the end of June, appellant was designated by the City of Two Harbors to attend the Minnesota Police and Peace Officers' Association Convention in Grand Rapids. The fact that he was so delegated appeared in the local newspaper a few days before the commencement of the convention. Appellant never saw or learned of the newspaper article until after the explosion giving rise to this case occurred.

Prior to leaving for the convention, appellant asked his brother, respondent Bruce Larson, who lived across the street, to look after his home while he was away. This arrangement had been utilized by the brothers on numerous previous occasions, and, as before, respondent agreed. Appellant left the house unlocked, as he had left it on previous occasions, and informed respondent that his two younger children would be staying with neighbors, and that the oldest child, his daughter Patty, was with in-laws but had permission to return home to pick up clothing, toys, and other needed items. On other occasions when appellant had left home he left his dog at home, and the dog was cared for by the respondent. On this occasion, however, appellant took his dog with him but neglected to so inform his brother. He did not tell respondent about the threat from the intoxicated person made approximately two months previously.

During the afternoon on the first day of appellant's absence, respondent, while working in his yard, heard the sound of breaking glass at appellant's home. Assuming that appellant's dog had gotten into trouble, respondent went to investigate. As he opened the door to enter appellant's house, he was blown out the door by an explosion and blast of flame and sustained personal injuries. An ensuing investigation revealed that the explosion had been caused by an amateur arsonist. The identity of that arsonist was never ascertained.

Respondent commenced this action alleging that appellant was negligent in failing to warn him of the threat to his house received two months before. The trial judge submitted the duty/foreseeability issue to the jury. In doing so the judge relied in essence on the landowner's duty toward an entrant found in JIG II, 331 G-S. ² The jury found both appellant and respondent negligent, finding appellant 75 percent negligent and respondent 25 percent negligent.

Appellant contends on appeal that the trial court erred in submitting the instruction, and that as a matter of law, under the circumstances of this case, he had no duty to warn his brother of the vague threat received some two months previous to the time of the explosion.

Generally, the existence of a legal duty is an issue for the court to determine as a matter of law. W. Prosser, Handbook of the Law of Torts Sec. 45 (4th ed. 1971). In this case, the issue is whether the criminal act of arson was sufficiently foreseeable to impose the duty to warn on appellant. See Pietila v. Congdon, 362 N.W.2d 328, 333 (Minn.1985); Lundgren v. Fultz, 354 N.W.2d 25, 28 (Minn.1984); Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928). ³ Although we have stated that in close cases foreseeability may be for jury resolution, see Lundgren, 354 N.W.2d at 28, the foreseeability issue in the instant case was clear and should have been decided by the court as a matter of law.

The facts of this case support our conclusion. Here almost two months had elapsed since appellant received a vague threat from a drunk. The intoxicated driver evidenced no intent to carry out the threat. The threat was extremely nonspecific. Cf. Cairl v. State, 323 N.W.2d 20, 26 (Minn.1982) ("It...