Bjerke v. Johnson

OPINION

The issues presented in this appeal are whether a homeowner has a duty to protect a child invitee from sexual abuse by *663another 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 Mend, 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 *664daughter 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 Bohl-man 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).

I.

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, spe*665cial 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 parents’ home.2 Johnson provided Bjerke with room and board and adopted rules for Bjerke’s conduct. Johnson had a large degree of control over Bjerke’s welfare, strongly indicating that there was a special relationship between the two. See Becker v. Mayo Found., 737 N.W.2d 200, 213 (Minn.2007) (finding no special relationship between hospital and child because hospital “did not exercise control over [the child’s] daily welfare”); Harper, 499 N.W.2d at 474 n. 2 (noting that a typical circumstance in which a duty exists is when the defendant holds “considerable power over the plaintiffs welfare”).

There is evidence that Johnson’s control over Bjerke increased over time with the increase in the length and frequency of Bjerke’s stays at the farm. For purposes of summary judgment, it is enough that we can determine, as a matter of law, that Johnson’s custody began at least as early as 1998, when Bjerke resided for the full summer at the farm.

*666We also conclude as a matter of law that, at least during the times that Bjerke resided full-time at the farm during and after the summer of 1998, Bjerke lacked “normal opportunities for self-protection” because she was a minor child, living apart from her parents and under the daily care and supervision of Johnson.

We recognize that children are largely dependent on parents or other custodial guardians for protection, and that such dependence is often the basis for a duty to protect. See H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 708 (Minn.1996) (noting that duties to protect “typically involve some degree of dependence”). The natural dependence which Bjerke would have had upon Johnson increased as her stays at the farm became progressively longer. By the summer of 1998, Bjerke was a long-term resident at Island Farm and was consistently away from her family. Although a child who visited Island Farm only sporadically might have been better able to rely on her parents for protection, Bjerke was largely separated from the protection and support that her parents might have otherwise provided. For example, a parent whose child lives with her on a regular basis is more able to observe various changes in that child’s behavior that could signal a negative influence on the child’s welfare.

The court of appeals concluded that no special relationship existed under Restatement § 314A because Bjerke “was not unable to summon help by virtue of the custody agreement.” Bjerke, 727 N.W.2d at 189-90. The court went on to conclude that “Bjerke had the same opportunities for self-protection under Johnson’s custody as she did under her parents’ custody.” Id. at 190. But, as we noted above, the circumstances of Bjerke’s residence at Island Farm substantially deprived her of a child’s primary source of protection — her parents. Although Bjerke was not absolutely deprived of the opportunity to rely on her parents for aid — she could have telephoned them from Island Farm or confided in them when she visited home — the Restatement does not require that all opportunities for self-help be lost. The Restatement only requires that Bjerke have been deprived of normal opportunities for protection, not that she have completely lacked any means of protection. Only the most extreme of circumstances would absolutely deprive an individual of her ability to protect herself, and we do not believe that Restatement § 314A is so unduly restrictive in its scope.

Johnson argues that our decision in H.B. forecloses the existence of a special relationship under Restatement § 314A. In H.B., we determined that the manager of a trailer park was not negligent for her failure to report the sexual abuse of a number of children by a park resident. 552 N.W.2d at 706. We based our decision on two key facts. First, we observed that “there was no acceptance by [the manager] of the children’s entrustment; indeed it was specifically rejected when [she] instructed the children to tell their parents about [the] abuse.” Id. at 708-09. Second, we noted that “the children were not in [the manager’s] custody [and] she exercised no control over their daily welfare.” Id. at 709.

In contrast, Johnson took Bjerke into her home as a long-term resident, providing her with a place to live away from her family. Additionally, Johnson never disclaimed any responsibility for Bjerke — to the contrary, Johnson made it clear that one of her motivations for bringing Bjerke to stay at Island Farm was to provide her with a more stable environment than could be found in Bjerke’s home. Thus, the factors found dispositive in H.B. suggest that a special relationship existed between Johnson and Bjerke.

*667We must also note that H.B. provides little support for the argument that Bjerke had the normal opportunities for self-protection. In H.B., the children resided with their parents, to whom they eventually reported their sexual abuse. 552 N.W.2d at 706-07.3 Though Bjerke was older than the children in H.B. at the time she was sexually abused, she lived away from her parents for substantial periods of time in which she was abused. Also, it is notable that the abuse in H.B. was perpetrated by an outsider, not a member of the same household. When the perpetrator of sexual abuse resides inside of the victim’s home, the child is likely faced with more pressure not to report her abuse. The child is subject to the ongoing influence of the person who abused her, and her ability to stay in the home could be jeopardized if she reported the abuse. None of these special considerations were implicated in H.B.

Because Johnson had custody over Bjerke and Bjerke, who, both by virtue of her age and her specific circumstances, lacked normal opportunities for self-protection, we conclude as a matter of law that a special relationship existed from and after the summer of 1998. The decision to the contrary by the district court and the court of appeals is reversed.4

Although we agree with Bjerke that a duty has been shown, we hasten to add that this does not mean that Johnson committed any wrongdoing by taking Bjerke into her custody. Johnson’s assumption of the care and custody of Bjerke was generous and admirable. We only conclude that the assumption, however well-meaning, brought with it legal obligations that Johnson would not have otherwise had, obligations sufficient to prevent summary judgment on the issue of a special relationship.

Having determined that the second type of special relationship, as described in Restatement § 314A, has been shown to exist, it is not clear that we need to address the third type of special relationship as described in Restatement § 324A and adopted in Pagra, 282 N.W.2d 567. Although this is the section upon which the court of appeals based its decision that a special relationship existed, we do not have a majority of this court in favor of addressing Restatement § 324A, and thus we will make no holding concerning it.

B. Foreseeability

Even where a special relationship exists, a duty is only imposed if the resulting injury was foreseeable. It is not necessary that a defendant have notice of the exact method in which injury will occur “if the possibility of an accident was clear to the person of ordinary prudence.” Connolly v. Nicollet Hotel, 254 Minn. 373, 381—82, 95 N.W.2d 657, 664 (1959). When it is clear whether an incident was foreseeable, the courts decide the issue as a matter of law, but in close cases, foreseeability is *668reserved for the jury. Whiteford ex rel. Whiteford v. Yamaha Motor Corp., 582 N.W.2d 916, 918 (Minn.1998).

Viewing the evidence in the light most favorable to Bjerke, we conclude that summary judgment was inappropriate on the issue of foreseeability. This is because questions of material fact exist as to the foreseeability of any sexual abuse that occurred between early 1997, when Aja Bjerke first began staying at Island Farm, and October of 2001, when Bjerke left the farm for the last time.

The evidence shows that Johnson, as well as many of her friends and associates, observed unusual and intimate behavior between Bohlman and Bjerke over this entire period. Johnson observed inappropriate behavior between Bohlman and Bjerke as early as the summer of 1997. Johnson saw Bohlman sitting with his back up against a couch, while Bjerke sat on the couch and ran her fingers through his hair for 10 to 15 minutes. Johnson subsequently confronted Bohlman to inform him that she did not find such conduct appropriate. Johnson believed this conduct to be the “kind of conduct a girlfriend would have exhibited as opposed to a daughter” and admitted that it may have had sexual overtones. When Johnson later mentioned this incident to a friend who was a county child protection worker, her friend agreed that it was “inappropriate for a fourteen-year-old girl to interact with a man * * * in his fifties that way.” Following her conversation, Johnson felt that she should “keep [her] eyes open.”

Johnson observed other unusual behavior between Bohlman and Bjerke. In general, she saw that Bohlman and Bjerke had a “space issue” when they were together. Also, in April of 2000, while at a 4-H judge’s clinic, Johnson saw Bjerke come around her and jump into Bohlman’s lap as he was sitting next to Johnson. Johnson and a woman seated nearby both believed this behavior to be “very odd.” This conduct would have occurred around Bjerke’s seventeenth birthday.

A friend of Johnson’s testified that Johnson later saw other instances of inappropriate behavior between Bohlman and Bjerke. He stated that, in the early winter or spring of 2000, Johnson came to his home and said that “she had to get out of the house because it was getting too sexual between [Bohlman and Bjerke], it * * * wasn’t a father-daughter thing, it was getting too sexual so she had to leave.” Sometime after this incident, this friend observed Bjerke rubbing Bohlman’s leg in the kitchen, in full view of Johnson who was sitting in the dining room.

Several other friends and acquaintances of Johnson observed the interaction between Bohlman and Bjerke and suspected that something was unusual about their relationship. One stated that Bohlman and Bjerke were “quite open about a lot of their emotions.” Bjerke’s mother was concerned that her daughter’s relationship with Bohlman was inappropriate. That concern was also reinforced by the observations of Johnson’s friends of the interaction between Bohlman and Bjerke.

After the August 2000 funeral of Johnson’s father, another friend saw Bjerke and Bohlman acting in a way that she considered to be “too intimate” and that made her uncomfortable. She also saw Bohlman and Bjerke engage in flirtation “many times.” She stated that most of the individuals she spoke to had “observed things” regarding the Bjerke-Bohlman relationship. Aside from these specific observations, it also appears that rumors generally were circulating regarding Bjerke and Bohlman.

It is particularly notable that even those who spent less time with Bohlman or Bjerke than Johnson had suspicions about the nature of their relationship. If those who spent little time at Island Farm saw *669enough unusual behavior to give them cause for concern, it would be reasonable to infer that Johnson, who lived full-time at Island Farm, came to the same conclusions herself. This conclusion is further bolstered by the fact that Bohlman’s abuse of Bjerke was not a short-term, isolated incident, but continued uninterrupted for nearly four years.

Because there was a special relationship between Johnson and Bjerke and the evidence presents genuine issues of material fact on foreseeability, summary judgment for Johnson on the issue of duty was erroneous and is reversed.

II.

We turn next to Johnson’s argument that, even if she was under a duty to protect Bjerke, Bjerke assumed the risk of her sexual abuse. Johnson bases this argument on Bjerke’s admission that she was never forced to have sex with Bohl-man and that she took affirmative steps to conceal their sexual relationship.

Two varieties of assumption of the risk are recognized in this state, each with its own effect on a defendant’s liability. The variety at issue in this appeal is termed “[p]rimary assumption of [the] risk,” and arises “only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.” Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974). Primary assumption of the risk completely negates a defendant’s negligence. Id., 216 N.W.2d at 127.5

We have previously allowed primary assumption of the risk as a defense to some actions involving minors. See Greaves v. Galchutt, 289 Minn. 335, 184 N.W.2d 26 (1971) (barring recovery in accidental shooting death of 11-year-old child). On the other hand, the consent of a minor has been firmly rejected as a defense to a criminal prosecution for the sexual abuse of a child. See Minn.Stat. § 609.342, subd. 1 (2006); Minn.Stat. § 609.343, subd. 1 (2006); Minn.Stat. § 609.344, subd. 1 (2006) (stating that “consent to the act by the complainant shall [not] be a defense” to criminal sexual conduct involving a minor). Whether consent can form the basis of an affirmative defense of assumption of the risk in a civil suit concerning the sexual abuse of a child, however, is an issue of first impression in this state.6

*670Minnesota has expressed a particularly strong interest in protecting children from sexual abuse. This interest is best reflected in our criminal laws, which render consent irrelevant in criminal prosecutions for the sexual abuse of a child. See, e.g., Minn.Stat. § 609.342, subd. 1. We have characterized this law as reflecting “the feeling of society in general that sexual contact by adults with children * * * is reprehensible whether or not the child consents, because at that age, the child should be deemed incapable of giving consent.” State v. Steinbrink, 297 N.W.2d 291, 293 (Minn.1980). The Utah Supreme Court has similarly observed that child sexual abuse is “so contrary to commonly accepted standards of decency and morality that any consensual agreement to engage in such conduct would be rejected by the law as against public policy and void.” Elkington v. Foust, 618 P.2d 37, 40 (Utah 1980).

Beyond the strong public interest in protecting children from sexual abuse, it seems to us unlikely that children can be expected to comprehend the multitude of long-term effects of sexual abuse by an adult. Aside from the immediate dangers, a victim of sexual abuse faces the risk of “depression and other psychosocial disorders, promiscuity, and revictimization” as well as “guilt, shame, phobias, and eating disorders.” Michelle Oberman, Regulating Consensual Sex With Minors: Defining A Role For Statutory Rape, 48 Buff. L.Rev. 703, 728-29 (2000). Such abuse can lead to “lower self-esteem, higher rates of emotional distress, and considerably elevated rates of suicide and self-harm.” Id. at 729. Because a plaintiffs ability to appreciate the danger arising from her behavior is a key component of assumption of the risk, Knutson v. Arrigoni Bros. Co., 275 Minn. 408, 413-14, 147 N.W.2d 561, 566 (1966), we find it difficult to conclude that children could meaningfully assume the risks of sexual assault.7

Although it might be argued that the facts in this case go beyond mere consent, given Bjerke’s admission that she took efforts to conceal her relationship with Bohl-man, we are not convinced that this is a meaningful distinction. As we noted above, a number of pressures are placed on a child to consent to the sexual abuse of an adult. To presume that such pressures begin and end simply with the child’s con*671sent would be to ignore the disparity of power that typifies the relationship between the abuser and his victim. The pressures brought by the adult to procure the child’s participation in sexual activity can be the same pressures that procure the child’s silence. Given the impossibility of separating the pressures that give rise to a victim’s consent from those that lead the victim to conceal her abuse, we do not believe that even active concealment by a minor victim of sexual abuse is sufficient to establish the defense of primary assumption of the risk.

Some courts have expressed concern that prohibiting evidence of consent “allow[s] a victim to * * * tell a one-sided version of events, without being subject to any real cross-examination or impeachment as to the damages actually suffered.” Doe ex rel. Roe v. Orangeburg County Sch. Dist. No. 2, 335 S.C. 556, 518 S.E.2d 259, 261 (1999). Our disposition today does not implicate this concern for three reasons. First, given the procedural posture of this case, we address only primary assumption of the risk — an absolute defense to liability — and do not consider whether the plaintiffs claims might be considered under the doctrine of secondary assumption of the risk. Second, we express no opinion on the extent to which a child victim’s actions can be considered by the jury in analyzing a defendant’s negligence. Third, we similarly express no opinion on the relevance of evidence of the child’s conduct on issues of damages.

We hold that the defense of primary assumption of the risk is unavailable as a matter of law in cases concerning the sexual abuse of a child. Accordingly, we affirm the court of appeals’ decision to reverse the grant of partial summary judgment and we remand to the district court for further proceedings.

Affirmed.