Susannah Mellett, Appellant, vs. Fairview Health Services, et al., Respondents, David Lee Johnson, M.D., Respondent, Dr. Davis, Defendant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-608

P. F., a minor,

by her mother and natural guardian, Deborah Frane,

and Deborah Frane, individually,

Appellants,

vs.

Hennepin County, et al.,

Respondents.

 

Filed August 24, 1999

Affirmed

Harten, Judge

Hennepin County District Court

File No. 986893

Richard A. Enga, Daniel R. Peterson, Taylor Law Firm, P.A., 3032 Radisson Plaza VII, 45 South Seventh Street, Minneapolis, MN 55402 (for appellants)

Amy Klobuchar, Hennepin County Attorney, Michael B. Miller, Assistant County Attorney, A-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondents)

Considered and decided by Short, Presiding Judge, Harten, Judge, and Parker, Judge.[*]

 

U N P U B L I S H E D   O P I N I O N

HARTEN

, Judge

Appellants challenge summary judgment finding that respondent Hennepin County was not negligent in its retention of an employee.[1] Because we conclude that it was not foreseeable that respondent's employee would threaten or cause injury to others, we affirm.

 

FACTS

On January 7, 1995, appellant P.F., age 15, accompanied by her mother, went to the emergency room of respondent Hennepin County Medical Center (HCMC). There she met Raymond Doss, respondent's 26-year-old food service employee; they kissed, and he gave her his beeper number.

P.F. and Doss began a three-month telephonic relationship. Doss knew appellant was 15 years old; he often spoke with her over the telephone at work. His supervisor also spoke with appellant over the telephone and knew her age.

On April 1, 1995, P.F. had a friend drive her to HCMC where she found Doss away from his work station on a dinner break.[2] Neither Doss nor his supervisor knew of her plans, which she developed privately. P.F. and Doss went to an empty room in the hospital where they had sexual intercourse. P.F. testified that although Doss was persistent, he did not use force, and she could have left at any time.

The next day appellant's parents learned of the incident and took P.F. to a different hospital for a physical examination and rape counseling. They also lodged a complaint against Doss, which led to his arrest and conviction of third-degree criminal sexual conduct, Minn. Stat. § 609.344, subd. 1 (1994). Appellant became pregnant as a result of this incident.

 

D E C I S I O N

1. Standard of Review

We ask two questions on an appeal from summary judgment: whether there are any genuine issues of material fact, and whether the district court erred in its application of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We view evidence in a light most favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

 

2. Failure to State Claim

Respondents claim that P.F. failed to state a claim for which relief can be granted because P.F. consented to sexual intercourse. For purposes of this opinion, we assume without deciding that P.F. has stated a valid claim.

 

3.

 Negligent Retention

In order to prevail on her claim of negligent retention, P.F. must show that respondents had a duty to her, that respondents breached this duty by retaining Doss in their employ, that the breach of the duty proximately caused P.F.'s injuries, and that she suffered harm. See Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996). P.F. argues that respondents had a duty to end the relationship between Doss and P.F. because they knew of it and it was foreseeable that Doss would pursue the relationship and have sex with a minor.

Negligent retention occurs when

[t]he employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.

Yunker v. Honeywell, Inc.

, 496 N.W.2d 419, 423 (Minn. App. 1993) (citation omitted), review denied (Minn. Apr. 20, 1993). A negligent retention claim must involve actual physical injury or a threat thereof; a plaintiff must show that the employer knew, or should have known, the employee's propensities to cause injury. Thus it must be foreseeable to the employer that the employee posed a threat of injury to those around him. See Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 540 (Minn. App. 1997) (negligent retention claim properly dismissed due to lack of evidence of propensities for violence and foreseeability), review denied (Minn. June 11, 1997).

P.F. argues that the district court erred in finding it unforeseeable that Doss's actions and phone calls would lead to the statutory rape of P.F. There is evidence that Doss's supervisor knew of the telephone calls and their content and that P.F. was a minor. But the district court found that there was no evidence that Doss was a danger to others because he "simply made and was allowed to accept personal calls while at work." And there was no evidence from which the supervisor or anyone else could foresee that Doss was likely to threaten to injure or actually injure others. Neither Doss nor his supervisor knew that P.F. would come to the hospital seeking Doss or that Doss was likely to engage in sexual intercourse with P.F. on hospital grounds.

We agree with the district court that there was no genuine issue of material fact as to whether it was unforeseeable that Doss had a propensity to engage in threatening or injurious behavior toward others. Accordingly, respondent did not negligently retain Doss.

 

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant initially challenged the district court's findings on claims of negligent supervision and negligent retention. At oral argument appellant withdrew the appeal of the negligent supervision claim, leaving only the negligent retention claim before us.

[2] The district court found, and the parties agreed, that although there was no specific indication in the record, Doss was away from his workstation and on his mealtime break.