Jeremiah Robb, Appellant, vs. Funorama, Inc., d/b/a Cheap Skate, Respondent.

Jeremiah Robb, Appellant, vs. Funorama, Inc., d/b/a Cheap Skate, Respondent. A04-1711, Court of Appeals Unpublished, June 7, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1711

 

Jeremiah Robb,

Appellant,

 

vs.

 

Funorama, Inc.,

d/b/a Cheap Skate,

Respondent.

 

Filed June 7, 2005

Affirmed

Dietzen, Judge

 

Anoka County District Court

File No. C2-03-2038

 

Christopher J. Hoffer, Kelly A. Boyd, David M. Cox, Soucie & Bolt, P.A., 2150 Third Avenue North, Suite 100, Anoka, MN 55303 (for appellant)

 

Byron M. Peterson, Jeanette P. Cogelow, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Minneapolis, MN 55422 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

 

DIETZEN, Judge

            In this negligence case, appellant Jeremiah Robb challenges the district court's grant of summary judgment in favor of respondent Funorama, Inc., d/b/a Cheap Skate.  Because we conclude there are no genuine issues of material fact and respondent did not owe appellant a duty of reasonable care as a matter of law, we affirm. 

FACTS

On May 12, 2000, a Friday night, appellant was seriously injured while fighting with Joshua Grimley at a roller skating rink owned by respondent (Cheap Skate).  At the time of the incident, Cheap Skate's security policy required that Friday night patrons be "wanded"searched with a metal detectorfrom the opening of the rink at 7:00 p.m. until 9:00 p.m., when the majority of patrons had entered.  Thereafter, additional patrons were wanded only if they raised suspicion. When Grimley arrived at approximately 10:00 p.m.,he was carrying his work knife that had a three- to four-inch blade, but Cheap Skate employees did not find him suspicious and did not wand him.

On Friday nights, Cheap Skate also employed off-duty police officers for security, but none were available on the night of the assault, so a manager oversaw security on the floor.  Other aspects of Cheap Skate's security policy prohibited inappropriate attire, such as baseball caps, as well as foul language, arguing, and the possession of drugs, alcohol, cigarettes, and gum.      

Deposition testimony revealed that fights have occurred at Cheap Skate in the past.  For example, a friend of Grimley's testified that he was assaulted when he attempted to break up a fight, and Cheap Skate owner Richard Lund subsequently told him that it was management's job to stop altercations.  The friend also testified that he believed some Cheap Skate employees were aware of the "bad blood" between appellant and Grimley, but the friend admitted that he had not talked to any employees about the feud. 

One Cheap Skate manager testified that parents have thanked him "for doing a good job and watching their kids."  Another manager described the rink as a "baby sitting service."  And Lund testified that it went "without saying" that he held the rink out to be a safe place to visit.

The origin of the fight at Cheap Skate began months before, when appellant told Grimley that he had a sexual encounter with Grimley's girlfriend.  On the night of the assault, Grimley, his girlfriend, and appellant arrived at Cheap Skate at different times.  When Grimley saw appellant, he became agitated, and punched and kicked a set of lockers adjacent to the roller rink.  But there is no evidence that any Cheap Skate employees heard the noise or were made aware of the incident.  Grimley eventually put on his skates and went on the rink's surface with a friend.  Appellant then walked over and spoke to Grimley's girlfriend, but she demanded that appellant leave her alone.  Grimley observed the event, skated towards appellant, and brandished his work knife.  Appellant threw a punch and knocked Grimley to the floor, but apparently was not aware that he was repeatedly stabbed by Grimley during the fight.  After the fight ended, appellant released Grimley and realized that he was bleeding and injured.

In February 2003, appellant filed a complaint against Cheap Skate for his injuries, alleging that Cheap Skate and its employees were negligent in failing to protect him from the assault.  Cheap Skate brought a motion for summary judgment, which the district court granted.  Specifically, the district court concluded that Cheap Skate did not owe a duty of reasonable care to appellant because (1) there was no special relationship between the parties; (2) Cheap Skate did not voluntarily assume a duty to protect appellant; and (3) Cheap Skate did not have knowledge of Grimley's disruptive behavior before the stabbing and could not foresee that Grimley would assault appellant.  This appeal follows. 

D E C I S I O N

            Summary judgment may be granted if the pleadings, depositions, interrogatory answers, admissions, and affidavits reveal that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  In an appeal from a grant of summary judgment, appellate courts determine if there are any genuine issues of material fact and if the lower court erred in its application of the law.  N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn. 2004).  This court must "view the evidence in the light most favorable to the party against whom summary judgment was granted."  Westrom v. Minn. Dep't of Labor & Indus., 686 N.W.2d 27, 32 (Minn. 2004).  "The party opposing summary judgment may not establish genuine issues of material fact by relying upon unverified and conclusory allegations, or postulated evidence that might be developed at trial, or metaphysical doubt about the facts."  Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn. 2004). 

I.

Special Relationship Between Parties

            Appellant argues that Cheap Skate was negligent because it did not protect him from Grimley's criminal actions.  A party defending against a negligence claim is entitled to summary judgment if there is a lack of proof on the existence of a duty of care.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  "Any legal analysis of an action brought against a [defendant] alleging negligence must begin with an inquiry into whether the [defendant] owed the [plaintiff] a duty."  Id.  "The existence of a legal duty is an issue of law for the court to determine."  Errico v. Southland Corp., 509 N.W.2d 585, 587 (Minn. App. 1993), review denied (Minn. Jan. 27, 1994). 

A defendant generally does not owe a duty to "protect strangers from being harmed by others."  Delgado v. Lohmar, 289 N.W.2d 479, 484 (Minn. 1979).  The exception to the rule is if there is a special relationship between the parties, giving rise to a duty for the defendant to control the actions of the third party, or giving rise to a duty for the defendant to give the plaintiff protection.  Id. at 483.  If there is a special relationship between the parties, a duty is imposed only if there is a "foreseeable risk involved."  Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn. 1989).  Consequently, we will address whether a special relationship existed between the parties and whether there was a foreseeable risk involved.        

            Courts have been reluctant to impose a "duty to protect" based on special relationships between parties.  Id. at 168.  For example, "[a] mere merchant-customer relationship is not enough to impose a duty on the merchant to protect his customers."  Id.  Special relationships are typically found between parents and children, common carriers and customers, and custodians of people with dangerous propensities and their patients.  Delgado, 289 N.W.2d at 483-84 (citing Restatement (Second) of Torts § 315 (1965)).  Special relationships are also found "when one individual has in some way entrusted her safety to another, and the other has accepted that entrustment."  Errico, 509 N.W.2d at 587; see also Laska v. Anoka County, ___ N.W.2d ___, ___, 2005 WL 1154265, at * 6 (Minn. App. May 17, 2005) (concluding special relationship exists between day-care provider and infants).  Additionally, the party that accepts the entrustment of safety must be in a position to protect against any dangers represented by third parties.  Errico, 509 N.W.2d at 587.  "Typically, the plaintiff is in some respect particularly vulnerable and dependent on the defendant, who in turn holds considerable power over the plaintiff's welfare."  Donaldson v. Young Women's Christian Ass'n of Duluth, 539 N.W.2d 789, 792 (Minn. 1995). 

            Appellant argues that there is a special relationship between the parties because Cheap Skate held itself out as accepting the entrustment of patrons' safety.  Appellant relies on deposition testimony of one manager stating that parents would thank him for watching their kids, another manager referring to the rink as a "baby sitting service," and Lund's testimony that he held the rink out as a safe place to visit.  But the deposition testimony upon which appellant relies consists of very general statements by Cheap Skate employees that do not rise to the level of creating a legal obligation by Cheap Skate to be responsible for the safety of appellant.  See Gilbertson v. Leininger, 599 N.W.2d 127, 131 (Minn. 1999) (concluding social hosts did not have special relationship with overnight guest); Molock v. Dorchester County Family YMCA, Inc., 779 A.2d 963, 968 (Md. Ct. Spec. App. 2001) ("The mere fact that the activities of the young patrons are monitored does not, standing alone, create a duty to act in loco parentis for those children.").  But see Laska, ___ N.W.2d ___, 2005 WL 1154265, at * 4 (concluding day-care provider accepted entrustment of every child at facility). 

We find no evidence in the record indicating that appellant, explicitly or implicitly, entrusted his safety to Cheap Skate.  When Grimley skated over to appellant with his knife drawn, appellant did not retreat or summon an employee to quell the possible fight, but instead threw the first punch.  Appellant's conduct supports the conclusion that he retained responsibility for his own safety and did not entrust it to Cheap Skate.  Finally, there is no indication that appellant, a high school football player, was particularly vulnerable or dependent on Cheap Skate, nor is there any indication that Cheap Skate, a roller skating rink, held considerable power over appellant's welfare.    

            Appellant cites Erickson for the proposition that although courts have historically been cautious, the supreme court "established a new class of businesses which may have a duty to protect their patrons from the criminal acts of third parties."  In Erickson, the victim had just started her car, which was parked in a dimly-lit, multi-level parking ramp, when she was accosted and raped by a lurking criminal.  447 N.W.2d at 167.  The parking ramp's security guard allegedly patrolled the ramp around the time of the assault but did not notice the physical altercation in the victim's car.  Id.  The supreme court held that the parking ramp's owner had a duty to deter criminal activity on its premises, primarily because of the physical structure of the parking ramp.  Id. at 169-70.  The supreme court added that the "general characteristics of a parking ramp facility . . . present a particular focus or unique opportunity for criminals and their criminal activities, an opportunity which to some degree is different from that presented out on the street and in the neighborhood generally."  Id. at 169. 

            Although the supreme court imposed a duty to protect on the business owner in Erickson, other cases have consistently held that a business has no such duty.  See, e.g., Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 674 (Minn. 2001) (holding no special relationship existed between landlord and tenant); Anders v. Trester, 562 N.W.2d 45, 48 (Minn. App. 1997) (concluding Taco John's restaurant had no duty to protect assault victim because, unlike parking ramp in Erickson, "Taco John's was an open building that did not provide places for criminals to hide or lurk"); Errico, 509 N.W.2d at 588 (concluding convenience store owed no duty to victim assaulted in parking lot because, unlike parking ramp in Erickson, parking lot was open, well-lit, and next to busy public street); Molock, 779 A.2d at 967-68 (holding YMCA owed no duty to victim of deadly assault because, although YMCA employees monitored patrons' activities, they were not responsible for completely repelling criminal attack). 

Here, appellant was assaulted in a well-lit and crowded roller rink, so none of the unique characteristics of the dimly-lit and confined parking lot in Erickson apply.  Appellant invites us to extend Erickson based on public policy factors, but we decline to do so.  In a public policy analysis, courts analyze whether (1) the prevention of crime should be primarily the responsibility of the government or a private party; (2) there is an ascertainable standard of care between the parties; and (3) the benefit of added security is worth the increased cost.  Erickson, 447 N.W.2d at 169.  These public policy considerations do not assist appellant because (1) Cheap Skate should not be charged with providing a quasi-governmental level of protection inside of the rink; (2) Cheap Skate's security measures cannot be held to a retroactively ascertainable standard of care; and (3) it would have been cost-prohibitive for Cheap Skate to take measures to prevent all possible criminal activity within its premises.  After viewing the evidence in the light most favorable to appellant, we conclude that the parties had a typical customer-merchant relationship.  Therefore, Cheap Skate did not owe appellant a duty of protection and cannot be held liable for negligence. 

            Next, we conclude that there was no foreseeable risk of harm to appellant.  For the assault to have been foreseeable to Cheap Skate, it must have been objectively reasonable that criminal activity, such as an assault, might occur.  See Whiteford v. Yamaha Motor Corp. U.S.A., 582 N.W.2d 916, 918 (Minn. 1998) ("In determining whether a danger is foreseeable, courts look at whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility.").  If the fight was merely a remote and unlikely possibility, that does not result in a conclusion that the fight was objectively foreseeable and should have been foreseen by Cheap Skate employees.  See id. Although fights had occurred at the rink in the past, there was no evidence that Cheap Skate employees were aware of the specific feud between Grimley and appellant such that they should have been on notice that a fight was about to begin.  Therefore, even if there were a special relationship between the parties, Cheap Skate did not owe appellant a duty of care because the assault was not foreseeable.   

II.

Voluntary Assumption of Duty

            Appellant next argues that Cheap Skate voluntarily assumed the responsibility to break up physical altercations on its premises by using off-duty police officers and metal detectors.  Although Cheap Skate did not have an affirmative duty to protect appellant, it may still be liable if it voluntarily assumed a duty to protect and subsequently breached that duty.  See Williams v. Harris, 518 N.W.2d 864, 868 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994).  If appellant relied on Cheap Skate's security representations and refrained from taking action to protect himself based on that reliance, Cheap Skate voluntarily assumed the duty to protect.  See id.; Nickelson v. Mall of Am. Co., 593 N.W.2d 723, 726 (Minn. App. 1999) (holding mall voluntarily assumed duty to protect assault victim who relied on representations that mall's security force would assist in restraining shoplifter). 

Although appellant may have been aware of Cheap Skate's security measures, there is no evidence in the record that he reliedon the measures for protection.  Instead, the undisputed testimony reveals that appellant took measures for his own protection, which included throwing the first punch at Grimley.  In Nickelson, the victim attempted to physically restrain a shoplifter, in reliance on the belief that security personnel would subsequently intervene.  593 N.W.2d at 726.  Appellant, on the other hand, did not rely on the presence of Cheap Skate security guards to stop Grimley from accosting him with the knife.  Cheap Skate also presciently observes that a conclusion that it voluntarily assumed a duty to protect would chill it from undertaking more stringent security measures in the future, for fear that an assault despite the security precautions would subject it to liability.  See Funchess, 632 N.W.2d at 675 ("[S]ubjecting the landlord to liability for all harm occasioned by a failure to maintain that security would tend to discourage landlords from instituting security measures for fear of being held liable for the actions of a criminal.").  We agree with Cheap Skate, and conclude that it did not voluntarily assume a duty to protect appellant.

III.

Duty to Eject Assailant

            Appellant finally argues that Cheap Skate employees knew, or should have known, of the danger that Grimley posed to appellant.  But even if a landlord has a duty to maintain its premises in a safe condition, "that duty extends to the physical condition of the premises and not to criminal acts of independent third persons."  Errico, 509 N.W.2d at 588.  After construing the evidence in the light most favorable to appellant, there is nothing in the record indicating that Cheap Skate's employees saw or heard Grimley hitting the set of lockers before the assault, and the testimony does not show that employees knew about the impending danger before it occurred, such that Cheap Skate may be charged with actual or constructive notice.  It must have been objectively reasonable for Cheap Skate to foresee the assault, and the deposition testimony reveals that Grimley was acting aggressively for only a short period of time before the fight.  See Whiteford, 582 N.W.2d at 918.  This brief period of time is not enough to charge Cheap Skate with actual or constructive knowledge of the danger Grimley posed.  Cf. Rinn v. Minn. State Agric. Soc'y, 611 N.W.2d 361, 365 (Minn. App. 2000) (concluding landowner did not have constructive notice of physical danger on property when danger was in existence for maximum of 30 minutes).  After viewing the record in the light most favorable to appellant, the district court correctly determined that Cheap Skate had no actual or constructive notice of an impending assault.  Therefore, Cheap Skate did not owe appellant a duty of reasonable care and cannot be liable for negligence.

            Affirmed.