Opinion
No. C0-95-2609.
Filed May 14, 1996.
Appeal from the District Court, Hennepin County, File No. PI93019244.
Stephen W. Cooper, Kathryn J. Cima, Stacey R. Everson, (for Appellant)
Surell Brady, City Attorney, Timothy S. Skarda, Assistant City Attorney, (for Respondents City of Minneapolis, et al.)
Steve Hanson, (Respondent Pro Se)
Bill Kenow, (Respondent Pro Se)
Michael R. Quinlivan, Elizabeth Truesdell Smith, (for Respondents Steve Warian, et al.)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
Unpublished Opinion
Appellant Lesli Wiita brought claims against the City of Minneapolis and its police department, Officer Steve Hanson, Officer Bill Kenow, Steve Warian, and John Warian as a result of alleged physical and sexual assaults by Hanson. The district court granted summary judgment on all claims except those against Hanson. We affirm.
Decision
On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). This court views the evidence in a light most favorable to the party against whom judgment was granted. Id.
I.
The district court granted summary judgment on Wiita's negligence claim against Steve and John Warian. The Warians hosted the party at which Wiita, an invitee, alleges Hanson, an off-duty police officer, assaulted her.
Generally, a homeowner has no duty to protect against third-party criminal activity. Erickson v. Curtis Inv. Co, 447 N.W.2d 165, 168 (Minn. 1989) (citing Pietila v. Congdon, 362 N.W.2d 328, 333 (Minn. 1985)). A duty to protect is imposed only where a special relationship arises between the parties and the risk of harm is foreseeable. Erickson, 447 N.W.2d at 168-69. A special relationship exists where an individual has entrusted his or her safety to another, and the other has accepted that entrustment. Id. at 168; Errico v. Southland Corp., 509 N.W.2d 585, 587 (Minn.App. 1993), review denied (Minn. Jan.27, 1994).
Taking the facts in a light most favorable to Wiita, John Warian made vulgar remarks to Wiita and was present when Hanson physically assaulted Wiita. Wiita has not, however, alleged facts indicating that a special relationship arose between herself and the Warians. While Wiita claims she expected John Warian to protect her, there is no evidence to indicate Warian accepted such entrustment.
Wiita, in arguing the Warians owed her a duty, cites Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972). However, as the supreme court has stated in distinguishing Peterson we know of no case which imposes upon a
homeowner the duty to protect persons invited to his residential premises from the criminal activities of third persons.
Pietila, 362 N.W.2d at 333.
Because no special relationship existed between the Warians and Wiita, the district court properly granted summary judgment. Further, even if a special relationship existed, Wiita has not alleged facts indicating there was a foreseeable harm.
II.
The district court granted summary judgment to Officer Kenow. Kenow, while off-duty, witnessed the alleged physical assault. Wiita argues that Kenow's failure to prevent the assault and failure to provide medical care support claims for negligent and intentional infliction of emotional distress.
A person owes no duty to protect another person from the criminal acts of a third person unless a special relationship exists. Erickson, 447 N.W.2d at 168. Mere status as a police officer does not give rise to an affirmative duty to protect. Leaon v. Washington County, 397 N.W.2d 867, 873 (Minn. 1986). Wiita has not alleged facts indicating a special relationship between herself and Kenow. Even assuming a special relationship, there is no evidence to suggest Kenow could have prevented the alleged physical assault, which ended immediately after it occurred.
With respect to intentional infliction of emotional distress, Wiita must show extreme and reckless conduct. See id. Her claim, however, is not that Kenow did something, but that he did nothing. While Kenow perhaps should have sought medical help for Wiita, under these facts he cannot be held civilly liable for such inaction. Therefore, the district court properly granted summary judgment to Kenow.
III.
The district court granted summary judgment in favor of the city, reasoning that the officers acted as private citizens. Wiita claims the city is liable based on respondeat superior and that the city and its officers are liable under 42 U.S.C. § 1983.
1. Respondeat superior
A city is liable for the torts of employees acting within the scope of employment. Minn. Stat. § 466.02 (1994). "Scope of employment" refers to employee conduct in furtherance of an employer's interests. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 15 (Minn. 1979). Relevant factors include whether the employee intended to act on behalf of the employer, whether the conduct is of the type authorized by the employer, and whether the conduct occurs within authorized time and space restrictions. Id. Intentional torts are "almost invariably outside the scope of employment." Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn.App. 1993), review denied (Minn. Apr. 20, 1993).
Further, an employer is not legally responsible for employee actions in an off-duty social setting. Leaon, 397 N.W.2d at 874. Here, the officers were not acting within the scope of employment. They attended a social party as private citizens, furthering no interests of the city. They were off-duty and not in uniform. They did not display badges or wear guns. The party was not organized or sponsored by the city. The assaults were not the type of conduct authorized by the city. Accordingly, the city cannot be liable under respondeat superior.
2. Section 1983
A person acting under color of state law is liable for depriving another of constitutional rights. 42 U.S.C. § 1983. "A public employee acts under color of state law" while acting in an official capacity. West v. Atkins, 487 U.S. 42, 50, 108 S.Ct. 2250, 2255 (1988). Here, the officers were at a party acting as private citizens rather than in an official capacity. Accordingly, Kenow cannot be individually liable under section 1983.
In order for a city to incur section 1983 liability, the city must be the "moving force" behind the deprivation of a right. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105 (1985). Thus, there must be an affirmative link between a custom or policy of the city and the alleged deprivation. City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 n. 8, 105 S.Ct. 2427, 2436 n. 8 (1985).
Here, Wiita argues the customs that caused her harm include the city's failure to control off-duty officers and a "code of silence" under which officers refuse to report fellow officers for violations of law. Wiita cites cases from other jurisdictions holding cities liable under section 1983 for allowing a code of silence and for not punishing offending officers. See Parrish v. Luckie, 963 F.2d 201 (8th Cir. 1992); Czajkowski v. City of Chicago, Ill., 810 F. Supp. 1428 (N.D. Ill. 1992); Sherrell v. City of Longview, 683 F. Supp. 1108 (E.D. Tex. 1987). In those cases, however, the cities repeatedly failed to discipline or control the conduct of the assaulting officer. Wiita presents no facts demonstrating Hanson had violent propensities about which the city knew or could control. Similarly, Wiita presents no facts demonstrating that the alleged "code of silence" caused the assaults against her or otherwise caused her harm.
Wiita also alleges the city failed to train officers not to assault the public. A city is liable for the failure to train where not training amounts to a "deliberate indifference" to citizen rights. City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204 (1989). Here, Wiita has not shown the city engaged in deliberate indifference. As the district court stated
[h]opefully the day has not come when the supervision and training of police officers will require indoctrination against committing felonies such as rape.
Accordingly, we conclude the city cannot be liable under section 1983.