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Bassford Remele is a full service litigation firm located in Minneapolis, Minnesota. Founded in 1882, the firm represents local, national and international clients in all areas of civil litigation and dispute resolution.
Case Law Update
Date: Dec 28, 2007 — Minneapolis, MN
During the week of December 28, 2007, the Minnesota appellate courts released an opinion on the following topic that may be of interest to our clients:
TORTS – EXISTENCE OF A DUTY TO PROTECT ANOTHER; TORTS – APPLICABILITY OF AN ASSUMPTION OF RISK DEFENSE
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Where a minor lives away from his/her parents in the custody of another, that special relationship creates a duty to protect that child from foreseeable harm. A minor lacks the capacity to consent to underage sexual contact, so assumption of risk is not a defense in a civil suit involving the sexual abuse of a minor.
Bjerke, a minor, stayed at Johnson’s horse farm off and on during 1998 through 2001. Johnson provided room and board, while Bjerke performed chores. Bohlman worked at the farm; he was convicted of three counts of sexual misconduct for abusing Bjerke during these times.
In a suit against Johnson alleging that she failed to protect Bjerke, Johnson moved for summary judgment arguing that she had no duty to protect Bjerke, and also that Bjerke voluntarily assumed the risk of her injuries by not only consenting to the relationship but also actively seeking to hide it.
The district court granted summary judgment on behalf of Johnson on both grounds. The court of appeals reversed the district court’s decision. The court of appeals held that a special relationship existed between Johnson and Bjerke, the harm was foreseeable, and that the defense of assumption of risk is not available in cases involving sexual abuse of a minor. In a four to three decision, the Supreme Court affirmed the court of appeals on slightly different grounds.
Generally, a person has no duty to protect another from harm. However, this duty arises where there is a special relationship and when the harm is foreseeable. A special relationship arises: (1) from the status of the parties, such as parent and child; (2) where an individual has custody of another person who is deprived of normal opportunities of self-protection; and (3) where an individual assumes responsibility for a duty owed by another individual.
In this case, the majority held, there was a special relationship as Bjerke did not have normal opportunities for self-protection. The Court based this decision on the facts that Johnson had custody over Bjerke and Bjerke lived away from her parents. The Court also held that there was a jury question as to the issue of whether the harm was foreseeable. The Court cited many facts that could arguably show that Johnson was aware of the relationship between Bjerke and Bohlman. Three justices dissented, finding insufficient basis to recognize a special relationship on these facts.
The Supreme Court agreed with the court of appeals’ ruling that the defense of assumption of risk is not available in this case. Citing the Minnesota statute barring consent as a defense in criminal cases, the Court reasoned that this rule reflects the legislature’s strong interest in preventing minors from being sexually abused.
Bjerke v. Johnson, Minnesota Supreme Court, No. A06-117, December 27, 2007.
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C. Lundberg, C. Morris, K. Putney, R.A. Williams, |
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