David Charles Foss, as parent and natural guardian of David Gerald Warren Foss, minor child, and David Charles Foss, individually, Appellant, vs. Jeremy Kincade, et al., defendants and third party plaintiffs, Respondents, vs. Peggy Foss, third party defendant, Respondent.
STATE OF MINNESOTA
IN COURT OF APPEALS
David Charles Foss, as parent and natural guardian
of David Gerald Warren Foss, minor child,
and David Charles Foss, individually,
Jeremy Kincade, et al., defendants and third party plaintiffs,
Peggy Foss, third party defendant,
Filed April 8, 2008
Rice County District Court
File No. 66-C1-06-000525
Thomas G. Johnson, Todd M. Kleinhuizen, Johnson, Moody, Schmidt & Kleinhuizen,
P.A., 320 First Street Southwest, P.O. Box 913, Willmar, MN 56201 (for appellant)
Louise Dovre Bjorkman, John M. Bjorkman, Mark A. Solheim, Larson King, LLP, 2800
Wells Fargo Place, 30 East Seventh Street, St. Paul, MN 55101 (for respondents Jeremy
Kincade, et al.)
Peggy Foss, 134 Seventh Avenue Northwest, Lonsdale, MN 55046 (pro se respondent)
Considered and decided by Willis, Presiding Judge; Wright, Judge; and Poritsky,
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals
by appointment pursuant to Minn. Const. art. VI, § 10.
The heightened duty of care owed to child trespassers does not apply to a
child visiting a private residence in the company of a parent.
The duty of reasonable care owed by landowners to entrants on their land
does not require homeowners to protect a child visiting in the company of a parent from
the dangers posed by ordinary household objects.
This appeal arises from a negligence action brought by appellant, whose child was
injured when an empty bookcase fell onto him during a visit with his mother to
respondents‟ home. The district court granted summary judgment dismissing appellant‟s
complaint, concluding as a matter of law that respondents did not have a duty to protect
appellant‟s child from the danger posed by the bookcase. We affirm.
David Gerald Warren Foss was injured during a visit with his mother, Peggy Foss,
to the home of family friends, respondents Jeremy and Stephanie Kincade. David, then
three years old, was playing on the main floor of the Kincades‟ home while Peggy Foss
and Stephanie Kincade talked in the kitchen. The two women heard a crash coming from
a first-floor bedroom and discovered David under a fallen bookcase. The parties believe
that David was climbing on the bookcase when it fell onto him.
David Charles Foss (Foss) asserted a negligence claim against the Kincades on
behalf of himself and his son David. Foss alleged that the Kincades were negligent both
in failing to secure the bookcase and in failing to warn David of the danger posed by the
bookcase. The Kincades moved for summary judgment, arguing that they owed no duty
to protect David, who was under the supervision of his mother at the time. The district
court granted the motion, and this appeal follows.
Did the district court err by concluding that the homeowners owed no duty as a
matter of law to protect a three-year-old child visitor under his mother‟s supervision?
This court reviews de novo a district court‟s decision on a motion for summary
See Gagliardi v. Ortho-Midwest, Inc., 733 N.W.2d 171, 175 (Minn. App.
2007). Summary judgment is appropriately granted when there are no genuine issues of
material fact and a party is entitled to judgment as a matter of law. Minn. R. Civ. P.
56.03; see also Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). In a negligence case,
the defendant is entitled to summary judgment when there is a complete lack of proof on
any of the four elements necessary for recovery, including, as relevant to this case, the
existence of a duty. See Louis, 636 N.W.2d at 318.
“Any legal analysis of an action brought against a landowner alleging negligence
must begin with an inquiry into whether the landowner owed the entrant a duty.” Id.
(citing Baber v. Dill, 531 N.W.2d 493, 495 (Minn. 1995)). Generally, the existence of a
duty is an issue of law for the court to determine. Id.
Foss does not assert that the
Kincades owed a duty to protect or warn David‟s mother. Indeed, the parties agree that
the risk of a bookcase tipping over is obvious to an adult. See Munoz v. Appelbaum’s
Food Market, Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972) (concluding that
landowners owe no duty with respect to obvious dangers). The issue before us, then, is
whether the Kincades owed a duty directly to David, who, because of his young age, was
unable to appreciate the danger posed by climbing on the bookcase.
Because David is a child, Foss asserts that the determination of duty in this case
should be governed by the standard applied to child trespassers under Restatement
(Second) of Torts § 339 (1965), which requires landowners to anticipate and protect
against dangers that, although obvious to adults, may not be recognized and heeded by
children. Our supreme court has applied the Restatement standard to all child entrants,
regardless of their status as trespassers, licenses, or invitees. See Meagher v. Hirt, 232
Minn. 336, 339-40, 45 N.W.2d 563, 565 (1951). But the supreme court has also held that
the Restatement standard does not apply to children injured while in the company of their
parents in areas where one would not expect to find unaccompanied children. See Sirek
by Beaumaster v. State, Dep’t of Natural Res., 496 N.W.2d 807, 811 (Minn. 1993)
(holding that child-trespasser standard did not apply to child injured while visiting state
trails with her parents because unaccompanied children did not frequent isolated state
trail).1 The supreme court has further recognized that the Restatement standard does not
We are aware that the supreme court‟s holding in Sirek was also influenced by the
limited statutory immunity afforded to state agencies for injuries sustained in state parks
under Minn. Stat. § 3.736, subd. 3(h) (1992). See Sirek, 496 N.W.2d at 811. But we read
the Sirek holding to rely principally on the fact that the child was accompanied by her
parents in an area where children were unlikely to be present without parental
supervision. See id.
apply to dangers that “may reasonably be expected to be understood and appreciated by
any child of an age to be allowed at large.” Id. (citing Restatement (Second) of Torts
§ 339 cmt. j).
Here, David visited the Kincades‟ home in the company of and under the
supervision of his mother, who concedes that a three-year-old child must be watched
constantly. At three years of age, David could not be expected to enter the Kincades‟
home on his own, nor was he of an age “to be allowed at large.” See id. Under these
circumstances, we conclude that the Restatement standard for the duty owed to child
trespassers does not apply.
In 1972, the Minnesota Supreme Court eliminated the categorical distinctions
between duties owed to invitees and licensees, and held that landowners‟ liability to
persons injured on their premises should be determined under “ordinary standards of
negligence.” See Peterson v. Balach, 294 Minn. 161, 173, 199 N.W.2d 639, 647 (1972).
Following Balach, the duty of a property owner to “inspect, repair, or warn those who
come upon the land” is decided under “the test of reasonable care.” Id.
In determining whether the Kincades owed a duty to David in this case, we begin
with several basic negligence principles. First, a negligence claim may be premised on
either a person‟s acts or failure to act. See Restatement (Second) Torts § 284. But
negligence arises from a person‟s failure to act only when that person owes a duty to the
injured party. Id. There is generally no duty to act for the protection of others. Id. § 314.
Such a duty may be found to exist, however, based on the relationship between the
parties and the foreseeability of harm. See Erickson v. Curtis Inv. Co., 447 N.W.2d 165,
168-69 (Minn. 1989).
The relationship between the parties here—landowner and social guest—is not
disputed,2 but the parties do dispute the foreseeability of the incident that caused David‟s
injuries. Foss argues that it was entirely foreseeable that a three-year-old boy, curious by
nature, would attempt to climb on an empty bookcase. The Kincades reply that, while it
may have been conceivable that a child would climb the bookcase, it was not foreseeable
in the legal sense of that word.
The concept of foreseeability has been a challenging one for both courts and
litigants. See W. Jonathan Cardi, Purging Foreseeability, The New Vision of Judicial
Power in the Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739, 744 (2005)
(characterizing the concept as “among the most confounding in the common law”).3
Literally construed, to foresee is to know beforehand.
See The American Heritage
Dictionary 689 (4th ed. 2000). But in jurisprudence, the concept of foreseeability is not
strictly literal, but rather encompasses policy considerations as well. See Black’s Law
Minnesota courts have most frequently addressed the existence of a duty to protect in
the context of so-called “special relationships,” which arise when a person “accepts
responsibility to protect another, although there was no initial duty.” Lundman v.
McKown, 530 N.W.2d 807, 820 (Minn. App. 1995), review denied (Minn. May 31,
1995). Foss does not assert that the Kincades owed a duty to protect David because of a
The proposed Restatement (Third) of Torts takes the position that foreseeability should
not play a role in duty determinations, arguing that the reasons for a no-duty
determination should be “articulated directly without obscuring references to
foreseeability.” Restatement (Third) of Torts § 7 cmt. j (Proposed Final Draft No. 1).
This portion of the Third Restatement has neither been published by the American Law
Institute nor adopted by our supreme court, and, thus, we do not apply it here.
Dictionary 676 (8th ed. 1999) (defining foreseeability as “the quality of being reasonably
anticipatable” (emphasis added)). Thus, our supreme court has held that a duty will not
lie when the connection between the damage-causing event and the alleged negligent act
is “too remote to impose liability as a matter of public policy.” Germann v. F.L. Smithe
Mach. Co., 395 N.W.2d 922, 924 (Minn. 1986) (stating that improper use of a product
“need not be anticipated by the manufacturer” (emphasis added)); see also Whiteford v.
Yamaha Motor Corp., U.S.A., 582 N.W.2d 916, 919 (Minn. 1998) (holding that risk of
collision between toboggan and parked snowmobile “was not one which Yamaha was
required to anticipate or protect against” (emphasis added)); cf. Peterson v. Richfield
Plaza, Inc., 252 Minn. 215, 222, 89 N.W.2d 712, 718 (1958) (finding foreseeability but
acknowledging that cases could be found expressing a contrary view on the foreseeability
of the particular harm, and declining to follow those cases).
“When the issue of foreseeability is clear, the courts, as a matter of law, should
decide it.” Whiteford, 582 N.W.2d at 918. In closer cases, the issue should be sent to the
jury. Id. In this case, in consideration of all of the circumstances, we agree with the
district court that David‟s injury was not foreseeable and thus that the Kincades did not
owe a duty to him as a matter of law.
The presence of David‟s mother is central to our determination.
caselaw recognizes that the primary responsibility for the protection of a child rests with
the child‟s parents. For instance, in Sirek, the Minnesota Supreme Court explained that
“[w]hen small children are being watched by their parents, or entrusted persons in
supervision, landowners may be relieved of a duty to warn them of or remove dangerous
instrumentality[sic][,] the danger from which is apparent.” 496 N.W.2d at 811 (quotation
omitted); see also id. (“[I]f a child is too young chronologically or mentally to be „at
large,‟ the duty to supervise that child as to obvious risks lies primarily with the
accompanying parent.” (quotation omitted)).
This court‟s decisions likewise have recognized the paramount duty of parents to
protect their children. In holding that a child‟s uncle did not have a duty to protect her
from abuse by her father, we explained that “[t]he responsibility for supervision of [a]
child may be relinquished or obtained only upon the mutual consent, expressed or
implied, by the one legally charged with the care of the child and by the one assuming the
responsibility.” See Sunnarborg v. Howard, 581 N.W.2d 397, 399 (Minn. App. 1998)
(quoting Laser v. Wilson, 473 A.2d 523, 528-29 (Md. Ct. Spec. App. 1984)) (quotation
marks omitted), review denied (Minn. Sept. 22, 1998).
Although the Sunnarborg
decision turned on whether a special relationship existed, an issue not presented here, the
Maryland case from which it quotes is a premises-liability case.
The Maryland court
A host or hostess can not be required to follow from room to
room an active two year old—brought by his parents—
protecting him from his indiscretions and the innumerable
obvious though dangerous conditions that exist in every
Laser, 473 A.2d at 529. We agree with this reasoning. It would be contrary to our
societal norms to expect a homeowner to take charge of another‟s child, particularly in
the presence of the child‟s parent.
Thus, consistent with the foregoing cases, we
conclude that the paramount duty to provide for a child‟s safety rests with that child‟s
parents and cannot be delegated merely by entering the home of another.
Our determination here also takes into account the fact that David was injured
while visiting a private residence. The incident at issue took place in the Kincades‟
home, which a child could not reasonably be expected to enter on his own. This is not a
case involving “child invitees or licensees who wandered away from their parents in
business places where their unsupervised presence could reasonably be anticipated.”
Sirek, 496 N.W.2d at 811.
Thus, cases involving injury to children visiting retail
establishments do not control our decision here. See Szyplinski v. Midwest Mobile Home
Supply Co., 308 Minn. 152, 156, 241 N.W.2d 306, 309 (1976) (affirming verdict based
on duty owed by storeowner to protect child from machinery that storeowner knew or
should have known could fall over on child visitors); Peterson, 252 Minn. at 222, 89
N.W.2d at 718 (affirming verdict based on duty owed by storeowner to protect child from
insufficiently guarded balcony on which storeowner had seen children playing).
Finally, we note that the object causing injury in this case was a common
household object—something that one might expect to find in any home. Foss argues
that the bookcase posed a particular hazard because it was empty and not secured to the
wall. Little imagination is required, however, to construct a list of many other potentially
hazardous items present in most, if not all, homes. Imposing duties on homeowners to
protect child visitors of all ages and personalities from these hazards would be
tantamount to mandating childproofing requirements for private residences. Cf. Sirek,
496 N.W.2d at 811 (explaining that imposing liability for injuries suffered by children
accompanied by their parents in state parks “would require the „childproofing‟ of vast
areas of state parks”). Such a standard would not only be overreaching but also fraught
with uncertainty. Even knowing the ages of potential child visitors would not apprise
homeowners of the level of childproofing necessary to discharge their duty. Indeed, the
Kincades believed that their home was safe for their own children, including their own
Considering the circumstances as a whole, we conclude that the risk of harm to
David was “too remote to impose liability as a matter of public policy.” Germann, 395
N.W.2d at 924. Our conclusion that no duty existed in this case is based on the totality of
these circumstances before us. We do not hold that landowners can never have a duty to
protect children on their premises. For example, the duty of reasonable care owed to all
entrants may require homeowners to warn or protect both parent and child visitors from
latent dangers in their homes. See Olmanson v. LeSueuer County, 693 N.W.2d 876, 88081 (Minn. 2005) (describing duty of reasonable care to all entrants). And of course, when
a parent entrusts a child‟s care to another person who accepts that undertaking, that
person owes a duty to keep the child safe. See Bjerke v. Johnson, 727 N.W.2d 183, 190
(Minn. App. 2007), aff’d, 742 N.W.2d 660 (Minn. 2007).
Foss asserts that summary judgment should have been denied because of the
Kincades‟ spoliation of evidence. More than a year before this litigation was initiated,
the Kincades disposed of the bookcase that fell on David. Foss asserts that he was
prejudiced by not being able to examine the bookcase; that he is entitled to an inference
that the bookcase had hardware affixed to it for wall mounting; and that such an inference
would preclude the entry of summary judgment. We disagree.
Initially, we note that, although it was briefed and argued below, the spoliation
issue was not resolved by the district court. When a spoliation issue is raised, “the trial
court is not only empowered, but is obligated to determine the consequences of the
Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995). And
we generally decline to resolve issues not addressed below. See Thiele v. Stich, 425
N.W.2d 580, 582 (Minn. 1988) (limiting issues on appeal to those raised and addressed
below). Nevertheless, in the interest of judicial economy, we address Foss‟s spoliation
argument here. See Minn. R. Civ. App. P. 103.04.
We discern no prejudice that would justify the sanction that Foss seeks here. See
Wajda v. Kingsbury, 652 N.W.2d 856, 860 (Minn. App. 2002) (explaining that the
appropriateness of a sanction for spoliation of evidence is determined by the prejudice to
the opposing party). Foss was able to present evidence of the bookcase through a
photograph of it and through testimony regarding its characteristics. And Foss‟s expert
had no trouble rendering opinions based on a photograph of the bookcase, including the
opinion that the accident could have been prevented with the use of wall brackets. There
was no dispute that the Kincades could have attached the bookcase to the wall. The
precise characteristics of the bookcase simply are not relevant to the determination of the
issues in this case. Accordingly, spoliation sanctions are not appropriate.
Under the reasonable-care standard, the duty owed by a landowner must be
determined based on the particular circumstances of each case. Balach, 294 Minn. at
174, 199 N.W.2d at 648. After considering the totality of the circumstances here, we
conclude that the Kincades did not owe a duty to protect David from the danger posed by
the empty bookcase. And we conclude that sanctions for spoliation of evidence are not
Accordingly, we affirm the district court‟s grant of summary judgment to