In Re the Marriage of: Renken v. Renken

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

 STATE OF MINNESOTA

 IN COURT OF APPEALS

 C5-98-1082

Mary Blatz, et al.,

Appellants,

vs.

Allina Health Systems,

d/b/a HealthSpan Transportation Services,

Respondent,

Scott County,

Respondent.

 Filed December 29, 1998

 Affirmed

 Randall, Judge

Scott County District Court

File No. C7-97-11134

Chris A. Messerly, Kathleen Flynn Peterson, Mullen J. Dowdal, Robins, Kaplan, Miller, & Ceresi, L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402 (for appellants)

Stephen G. Anderson, Joseph J. Langel, Ratwik, Roszak, & Maloney, P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent Scott County); and

David C. Hutchinson, Geraghty, O' Loughlin & Kenny, 1400 Capitol Centre, 386 Wabasha, St. Paul, MN 55102 (for respondent Allina Health Systems)

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Short, Judge.

 U N P U B L I S H E D O P I N I O N

 RANDALL, Judge

Appellant argues that the district court erred when it granted summary judgment in favor of respondent Scott County, ruling that the public duty doctrine precluded appellants' negligence action against the county and that the county did not owe appellants a special duty of care. We affirm.

 FACTS

Beginning in 1995, the Scott County Sheriff's Department implemented an unwritten policy that all patrol officers be trained as first responders, able to perform basic emergency tasks before a licensed ambulance service arrives at the scene of an accident. In addition to the standard first aid kits, the county equipped its patrol cars with oxygen kits. The oxygen kit contains partial rebreather masks, nasal cannulas, infant masks, a positive pressure mask, and an oxygen tank. There was no formal policy or procedure for the inspection and maintenance of the oxygen kits and no requirements as to what equipment the kits must contain.

On the morning of June 18, 1995, Scott County Dispatch received a "911" call from appellant Mary Blatz's husband, Patrick Sherman. He stated that Blatz was experiencing severe chest pain. After confirming the address and telephone number, the dispatcher told Sherman that "we'll get someone right over there." The dispatcher then dispatched Scott County Deputy Brian Wondra to the scene along with a HealthSpan ambulance crew.

While Wondra was en route, dispatch received a second "911" call from Blatz's 13 year-old son. He told the dispatcher that something was wrong with his mom and asked that someone "come over here really fast." The dispatcher told Blatz's son that "I've got a deputy and an ambulance en route over there." The call was then transferred to the ambulance crew. Dispatch informed Wondra that the patient's condition was deteriorating.

Wondra arrived approximately 12 minutes after receiving the dispatch. When he arrived, he found Blatz lying on the floor. She was not breathing and did not have a heart beat. Wondra went to use the oxygen kit, but discovered that the positive pressure mask was missing. Wondra then began cardiopulmonary resuscitation (CPR). Sherman assisted Wondra by providing ventilation to Blatz while Wondra continued chest compressions. The ambulance crew, which had gotten lost on the way to the house, arrived shortly afterwards and Blatz was transported to the hospital.

As a result of the initial cardiac arrest, Blatz suffered severe anoxic encephalopathy, resulting in short term memory loss and significant loss of motor skills. She was later transferred to a nursing home because she is unable to function independently.

 D E C I S I O N

On appeal from summary judgment, a reviewing court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Summary judgment is appropriate only where there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. Whether a legal duty is imposed upon a party is a question of law. Mears Park Holding Corp. v. Morse/Diesel, Inc., 427 N.W.2d 281, 285 (Minn. App. 1988). When considering questions of law, a reviewing court is not bound by and need not give deference to a district court's determination. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Blatz insists that the district court erred when it concluded that the county owed her no legal duty to inspect and maintain the oxygen kits carried in sheriff's department patrol cars. Blatz argues that the "public duty doctrine" does not apply to the present case; and thus argues that the county breached a legal (assumed) duty to have a complete oxygen kit in all patrol cars. She argues further that under the four factors set forth in Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806-07 (Minn. 1979), the county owed her a special duty and that public policy supports liability for Wondra's failure to follow the sheriff's department's informal, unwritten policy that all sheriff's deputies carry oxygen kits in their patrol cars.

To recover against a municipality in a negligence action, a plaintiff must "show a breach of some duty owed [her] in [her] individual capacit[y] and not merely a breach of some obligation owed the general public." Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 222, 199 N.W.2d 158, 160 (Minn. 1972). "[G]eneral duties owed to the entire public rather than a specific class of persons cannot form the basis of a negligence action." Cracraft, 279 N.W.2d at 804 (footnote omitted). This rule is commonly known as the public duty doctrine. Lorsbough v. Township of Buzzle, 258 N.W.2d 96, 99 (Minn. 1977) (noting Hoffert set forth "the public duty doctrine"). "The [public duty] doctrine addresses the question of whether a duty of care exists between the municipality and the plaintiff." Dahlheimer v. City of Dayton, 441 N.W.2d 534, 538 (Minn. App. 1989) (citation omitted), review denied (Minn. Aug. 15, 1989). Municipalities "cannot be held liable for failing to supply general police or fire protection." Id. (citation omitted).

The decision to train sheriff's deputies as first responders and to provide those deputies with oxygen kits is simply part of providing general police protection to the public. Police officers provide a number of services for the public, including first aid treatment in emergency situations. Recognizing this fact, Scott County voluntarily added to the level of training its officers received by having them trained as first responders and equipping them with oxygen kits. This training is not required to become a peace officer or to maintain a peace officer's license. See Minn. Stat. §§ 626.84-.863 (1996 & Supp. 1997) (peace officer training); Minn. R. 6700.0100-.2704 (1997 & Supp. 1998) (peace officer training and licensing). It was added in an effort to better serve the residents of Scott County and to increase the effectiveness of police services provided by the sheriff's department. Training deputies to be first responders able to use oxygen kits is just one more aspect of providing general police protection to the public. We conclude therefore that the district court did not err when it ruled that the public duty doctrine applies to the present case.

An exception to the public duty doctrine does exist if the municipality undertakes the responsibility of protecting a particular class of persons who are at risk. See Cracraft, 279 N.W.2d at 806 (holding city did not owe duty to individual merely because it enacted general fire code inspection ordinance); Danielson v. City of Brooklyn Park, 516 N.W.2d 203, 205 (Minn. App. 1994) (holding city did not undertake to protect particular class of people by enacting ordinance giving city authority to inspect and remove diseased trees), review denied (Minn. July 27, 1994). This "special" or "assumed" duty arises from

the ancient doctrine that once a duty to act for the protection of others is voluntarily assumed, due care must be exercised even though there was no duty to act in the first instance.

 Cracraft, 279 N.W.2d at 806 (citing Isler v. Burman, 305 Minn. 288, 295, 232 N.W.2d 818, 822 (1975)). In determining whether a special duty exists, the following four nonexclusive factors should be considered, whether:

the municipality had actual knowledge of a dangerous condition;

the injured party reasonably relied on representations and conduct of the municipality or its agents so as to forego other ways of protecting himself;

the duty of care was created by an ordinance or statute setting forth mandatory acts for protection of a particular class; and

the municipality did not exercise due care to avoid increasing the risk of harm.[1]

 Dahlheimer, 441 N.W.2d at 538 (citing Cracraft, 279 N.W.2d at 806-07). Not all four factors must be met for a special duty to exist. Andrade v. Ellefson, 391 N.W.2d 836, 841 (Minn. 1986).

We agree with the district court that the county had actual knowledge of Blatz's "dangerous condition" because of the "911" calls it received about her condition and the first factor has been satisfied.

For "liability to attach" under the second factor, "'reliance must be based on specific actions or representations.'" McNamara v. McLean, 531 N.W.2d 911, 915 (Minn. App. 1995) (quoting Cracraft, 279 N.W.2d at 807). There is no evidence that Blatz's husband and son relied on any actions or representations that Wondra would provide medical services instead of the ambulance crew, that Wondra had a complete medical or oxygen kit, or that he had substantial medical training beyond that of other peace officers. Blatz's claim that Sherman would have taken her to the hospital if he had known that Wondra did not have a complete oxygen kit is speculative and suspect. Even if Sherman and Blatz's son knew that Wondra did not have a complete oxygen kit, it is unlikely that they would have taken Blatz to the hospital, when they knew that an ambulance crew was on its way to the house. Because no representations were made about Wondra's ability to render medical assistance at the scene, there can be no "reasonable reliance" satisfying the second factor.

A duty under the third factor is established

where an ordinance or statute "sets forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole."

 Id. (quoting Cracraft, 279 N.W.2d at 807). It is undisputed that there is no ordinance or statute mandating that Scott County deputies carry fully-equipped oxygen kits. There is only an informal, unwritten policy by the sheriff's department that deputies will be trained as first responders and equipped with oxygen kits.

Blatz relies on Andrade to argue that a county policy can give rise to a special duty. In that case, children enrolled in an in-home day care and their parents filed suit against the county for negligence in supervising, inspecting, and recommending licensing of the day-care home in which the children were injured. Andrade, 391 N.W.2d at 837. The Minnesota Supreme Court held that the third Cracraft factor had been satisfied because the legislature sought to protect children by enacting legislation regulating day-care facilities. Id. at 842. The court also noted that consistent with the legislature's concern for children was "the apparent practice of Anoka County to refer parents to those day care facilities which have been licensed on its recommendation." Id. at 842-43.

In Andrade, the supreme court specifically relied on state statutes regulating day-care facilities to conclude that a special duty existed. The supreme court did not base its decision on the county's "apparent practice" of referring parents to facilities licensed pursuant to its recommendation.

The sheriff's department's policy is informal, unwritten, and lacks the specificity needed to establish a special duty to a particular class. The policy exists solely at the sheriff's discretion and can be discontinued at any time. Given the policy's lack of definiteness, the fact that the informal policy can be withdrawn at any time, and the lack of state statutes governing Wondra's ability to render emergency medical assistance, the departmental policy on oxygen kits did not give rise to a legal duty.

Relying on Gilbert v. Billman Constr., Inc., 371 N.W.2d 542 (Minn. 1985), Blatz insists that the public duty doctrine is limited to cases "premised upon the government's general duty to protect against harm from third parties." In that case, plaintiffs brought an action against the county to recover losses incurred when the plaintiffs' septic system failed. Id. at 543. The county had approved a septic system plan designed by the county sanitarian and provided that the construction permit was approved for only this plan. Id. at 544. When plaintiffs submitted a septic system plan designed by the construction company, the county denied the plan because its plan had already been approved. Id. The supreme court concluded that the public duty doctrine did not apply because the county assumed a direct duty to plaintiffs by requiring plaintiffs to use the plan designed by the county sanitarian and no other. Id. at 546-47. This duty arose, in part, because the sanitarian knew that plaintiffs would rely on his representations and plan design. Id. at 547. Contrary to Blatz's assertion, the court did not hold that the public duty doctrine applied only to cases where the government assumed a duty to protect a plaintiff from the conduct of a third party.

In sum, the county's policy to train and equip its deputies as first responders is simply one aspect of the general police protection it provides to the public. The district court applied the public duty doctrine. Blatz failed to present any evidence that a special duty existed.

Finally, Blatz insists that public policy supports liability for Wondra's failure to follow the department's "non-discretionary" oxygen kit policy.[2] The district court determined that public policy supports the application of the public duty doctrine to the present case. The district court ruled that the county is not obligated to provide first responder training to its officers or to provide them with oxygen kits and that imposing liability "would discourage Scott County and other municipalities from providing invaluable medical services." We agree. Such a ruling could discourage municipalities from voluntarily training officers in the first place. In conclusion, public policy supports application of the public duty doctrine to this case.

  Affirmed.

[1] Blatz concedes that the fourth factor has not been satisfied in the present case.

[2] Contrary to Blatz's assertion, there is no evidence in the record that the oxygen kit policy is non-discretionary. The affidavit of Captain David Wagner relied on by appellants, states merely that the policy is informal and unwritten and that the county "chose" to provide its officers with first responder training and to equip them with oxygen kits. Wagner did not state that the policy is non-discretionary.