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Fahrendorff v. North Homes8/5/1999
GILBERT, Justice.
This is an appeal from a court of appeals decision affirming summary judgment in favor of respondent. We must determine whether there exist any genuine issues of material fact or errors in the application of the law with respect to appellant's claim that the sexual assault committed by an employee of respondent fell within the scope of his employment. When viewed in the light most favorable to the appellant, the evidence suggests that the source of the assault was related to the employment duties of the assailant-employee. Accordingly, we reverse and remand for trial.
Respondent North Homes, Inc. is a nonprofit corporation that owns and operates the I.T.A.S.K.I.N. House, a temporary crisis shelter, i.e., group home. I.T.A.S.K.I.N. House is licensed by the Minnesota Department of Corrections and the Minnesota Department of Human Services to provide 24-hour residential care for up to seven persons under the age of 18. On April 10, 1995, Michelle Fahrendorff, then 15 years old, was placed in I.T.A.S.K.I.N. House on a 72-hour hold after she reported an argument she had with her parents to the Aitkin County Sheriff's Department. See Minn. Stat. § 260.165, subd. 1(c)(2) (1998). After a hearing on April 13, 1995, Fahrendorff's stay was extended to April 18. See Minn. Stat. § 260.172, subd. 1 (1998). While at I.T.A.S.K.I.N. House, Fahrendorff was sexually assaulted by David Kist, a program counselor at the home. Her claims against North Homes stem from that assault.
Kist was hired as a program counselor at I.T.A.S.K.I.N. House in December 1993. North Homes conducted a criminal background check as required by the Department of Human Services. See Minn. Stat. § 245A.04, subd. 3 (1998); Minn. R. 9543.0040, subp. 3 (1997). These checks revealed that Kist had no criminal history. North Homes also contacted several of Kist's former employers and personal references, none of whom gave any indication that Kist was unfit for the program counselor position.
Program counselors at I.T.A.S.K.I.N. House fulfilled the role of "group home parents" as defined in Minn. R. 9545.1420, subp. 4 (1997). According to North Homes' policy manual, counselors were responsible "for the management, supervision and attention of youth placed in the shelter's care" and were to help "provide a safe and secure environment for shelter residents." Counselors working the midnight shift were required to perform multiple "bed checks" of residents each night and had complete access to the residents' bedrooms for that purpose. Counselors, however, were instructed to avoid physical contact with residents whenever possible to prevent questions of inappropriate contact. North Homes also instructed counselors to avoid relationships that "might increase risk of client/resident exploitation in any form," and counselors were required to report any physical or sexual abuse of residents.
At Kist's six-month review, his supervisor rated Kist's performance as "satisfactory." In the summer and fall of 1994, however, two complaints were lodged against Kist alleging improper conduct toward female residents. North Homes spoke to Kist about the incidents and noted them in Kist's personnel file, but determined that no disciplinary action was necessary.
On April 15, 1995, Kist was scheduled to work the midnight to 8:00 a.m. shift at I.T.A.S.K.I.N. House. At that time, Fahrendorff and two juvenile males were the only residents of I.T.A.S.K.I.N. House. Consistent with I.T.A.S.K.I.N. House's policy of maintaining a ratio of one counselor for every four residents, Kist was the only program counselor on duty that morning.
Shortly after he came on duty, Kist let an unaut
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