Sandra Scherff, et al., Appellants, vs. Cynthia Kraimer, Respondent.

may not be cited except as provided by

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

 STATE OF MINNESOTA

 IN COURT OF APPEALS

   C1-97-2364

Sandra Scherff, et al.,

Appellants,

vs.

Cynthia Kraimer,

Respondent.

  Filed June 16, 1998

Affirmed

Harten, Judge

Anoka County District Court

File No. C1-97-593

Michael J. Scott, Jensen, Hicken & Scott, P.A., 300 Anoka Office Center, 2150 Third Avenue North, Anoka, MN 55303-2296 (for appellants)

Paul J. Rocheford, Paul A. Banker, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Schultz, Judge.*

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

U N P U B L I S H E D O P I N I O N

 HARTEN, Judge Appellant Sandra Scherff appeals from a grant of summary judgment in favor of respondent Cindy Kraimer. The district court found that Kraimer had no duty to control the flailing of her two-year-old child or to warn Scherff of a possibility of injury. We affirm.

 FACTS

On February 2, 1995, Kraimer's nearly two-year-old child was admitted to the hospital. Scherff, who is Kraimer's sister-in-law and the child's aunt, visited the hospital that evening. The child slept for most of the visit and was listless when she awoke.

Kraimer spent the night of February 2, 1995, at the hospital with the child. At her deposition, Scherff stated that Kraimer later told her that the child had been restless throughout the night.

On the morning of February 3, 1995, Scherff returned to the hospital. The child was sleeping when she arrived. When the child awoke, she was fussy and fidgety. The child was trying to climb over the side of the crib, saying "out." Kraimer asked Scherff to pick up the child. Scherff observed that the child had an I.V., attached to a wooden or metal board, in her arm. In the process of being picked up, the child flung her arm with the I.V. board and hit Scherff in the right eye. Scherff felt a jolting pain and put the child back in the crib. Within 24 hours, Scherff lost sight in her right eye. Scherff stated at her deposition that before the incident, the board

didn't bother me * * * I didn't even think twice. I mean, I never dreamt it would hit me in the eye.

Scherff brought a negligence action against Kraimer, alleging that Kraimer had a duty to control her child and a duty to warn Scherff of the possibility of injury. Concluding that the child's conduct was not foreseeable, the district court granted Kraimer's motion for summary judgment on both claims.

D E C I S I O N

In reviewing a grant of summary judgment, we must determine: (1) whether genuine issues of material fact exist and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The evidence is viewed in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

The four elements of negligence are duty, breach of duty, proximate cause, and injury. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). Duty is generally a question of law, to be decided by the court. H.B. by and through Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996).

Ordinarily, a person does not have a duty to protect another or warn another of harm that may be caused by a third person's conduct. Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979). Courts have carved out an exception to that general rule, however, where (1) a "special relationship" exists between the defendant and the third person, and (2) the injury was foreseeable. Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984) (with respect to duty to control another's behavior); Wood on Behalf of Doe v. Astleford, 412 N.W.2d 753, 755 (Minn. App. 1987) (with respect to duty to warn of possible injury), review denied (Minn. Nov. 24, 1987). A "special relationship" exists between a parent and a minor child. Delgado, 289 N.W.2d at 483.

Both parties agree that Kraimer has a "special relationship" with the child. The only question is whether the conduct was foreseeable. The issue of foreseeability is generally for the court to decide. Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 158 (Minn. App. 1993), review denied (Minn. July 15, 1993). But close questions of foreseeability should be given to a jury. Lundgren, 354 N.W.2d at 28.

1. Duty to Control the Child's Conduct

A duty to control a third person's conduct will be imposed only if the wrongful act by the third person was reasonably anticipated. K.L. v. Riverside Medical Center, 524 N.W.2d 300, 302 (Minn. App. 1994), review denied (Minn. Feb. 3, 1995). The standard for foreseeability in the context of duty to control has been established by the supreme court:

[L]iability is not established unless it is also proved that the parents know, or have reason to know, of the necessity and opportunity for exercising such control and are chargeable with knowledge of the dangerous or violent propensities of the child. In short, liability of the parent arises from his active parental misconduct in creating an unreasonable risk of harm to others by placing an instrumentality into the hands of a minor child who the parents know, or ought to know, is unable to utilize it without endangering innocent third parties.

 Republic Vanguard Ins. Co. v. Buehl, 295 Minn. 327, 332, 204 N.W.2d 426, 429 (Minn. 1973). In Buehl, a 16-year-old hit a pedestrian with his motorcycle. The supreme court recognized that parents are charged with knowledge of the "dangerous or violent" propensities of their minor child into whose hands they placed a dangerous instrumentality. Id. at 332, 204 N.W.2d at 429.

The instant case does not satisfy the Buehl standard. Kraimer did not place a dangerous instrumentality in the hands of her two-year-old child. The I.V. board does not fit in the category of inherently dangerous instruments such as motorcycles, automobiles, and firearms. Rather, the board was attached to the child's arm to keep the I.V. stable; it is better classified as a safety device.

Scherff argues that because the child was restless through the night, Kraimer could foresee injury. We disagree. Even if the child had been restless, she had just awakened at the time of the incident, and a continuation of the child's restlessness upon awakening was absolutely unpredictable.

Moreover, any indication that the child might hit Scherff should have been equally detectable by Scherff herself. Scherff was aware of the I.V. board, she knew this child well, and she had several years of experience working with young children as a daycare provider. Unless the child had a tendency to thrash violently when being lifted or had a physically aggressive personality, this type of accident could not be foreseen. There is no evidence to suggest that this child had violent tendencies or had flung her arms in any unusual way before. Scherff herself characterized the child as a "really good kid" and described her as sweet and loving. The most foreseeable aspect of this case is that the actions of young children are unpredictable. Kraimer could not have anticipated this accident.

2. Duty to Warn

The supreme court has developed a rigid standard for foreseeability in cases involving a duty to warn of possible injury at the hands of a third person. It has determined that a duty to warn arises only when specific threats are made against specific victims. Cairl v. State, 323 N.W.2d 20, 26 (Minn. 1982).

In Cairl, a borderline mentally retarded boy who had a tendency to set fires was on home leave from a state institution. Id. at 22. The boy set a fire in the living room of his mother's apartment, causing injuries and death. Id. The district court granted summary judgment to the state, finding that it had no duty to warn the plaintiffs about the boy's dangerous propensities. The court explained the threat which must be present for a duty to warn to arise:

It is apparent, then, that if a duty to warn exists, it does so only when specific threats are made against specific victims. In this case [the boy] * * * did not pose a danger to plaintiffs different from the danger he posed to any member of the public with whom he might be in contact when seized with the urge to start a fire. Moreover, * * * if a duty to warn exists at all, it is a duty to warn of latent danger. In this case [the boy] was released to his mother who was well aware of her son's history of starting fires.

 Id. at 26.

Here, the child did not pose a danger specifically to Scherff. The same harm could have happened to anyone who was near her when she flailed her arm with the I.V. board attached. Moreover, the child made no threat against Scherff. This case does not satisfy the standard set out in Cairl.

  Affirmed.