Opinion
A22-1236
04-17-2023
Minor Doe 601, a minor, by and through his mother and natural guardian, Mother Doe 601, Appellants, v. Best Academy, a/k/a and d/b/a Harvest Best Academy, et al., Respondents, Aaron James Hjermstad, et al., Defendants.
Jeffrey R. Anderson, Michael G. Finnegan, Molly K. Burke, Joshua D. Peck, Jeff Anderson & Associates, P.A., St. Paul, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota (for appellants) Christian R. Shafer, Timothy A. Sullivan, Frank E. Langan, Ratwock, Roszak &Maloney, P.A., St. Paul, Minnesota (for respondents) Jason L. DePauw, Keller Postman LLC, Chicago, Illinois (for amicus curiae Minnesota Association for Justice)
This Opinion is Nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Hennepin County District Court File No. 27-CV-20-9039
Jeffrey R. Anderson, Michael G. Finnegan, Molly K. Burke, Joshua D. Peck, Jeff Anderson & Associates, P.A., St. Paul, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota (for appellants)
Christian R. Shafer, Timothy A. Sullivan, Frank E. Langan, Ratwock, Roszak &Maloney, P.A., St. Paul, Minnesota (for respondents)
Jason L. DePauw, Keller Postman LLC, Chicago, Illinois (for amicus curiae Minnesota Association for Justice)
Considered and decided by Reilly, Presiding Judge; Reyes, Judge; and Larson, Judge.
REILLY, JUDGE.
Appellant challenges the district court's summary-judgment dismissal of his negligent-hiring claim against respondent-schools arising out of sexual abuse of appellant by respondents' employee. Because respondents are entitled to statutory discretionary immunity, we affirm.
FACTS
These facts are either undisputed or stated in a light most favorable to appellant Minor Doe 601 (Doe) as the nonmoving party. From 2016 to 2020, Mastery School (Mastery) employed Aaron James Hjermstad as a licensed physical education teacher. Hjermstad also served as a basketball coach for the joint charter school basketball program made up of students from Mastery and Best Academy (Best).
Best and Mastery were public charter schools founded in 2008 and 2012 respectively. They were founded and operated under the Harvest Network of Schools Inc. In 2018, Best merged with Harvest Preparatory School to form Harvest Best Academy. In 2021, Mastery also merged. Harvest Best Academy became the surviving corporation.
Before being hired by Mastery, Hjermstad was employed at Excell Academy charter school as a physical education teacher. Hjermstad also developed the Charter School Athletics League and coached basketball. In 2015, a student reported that Hjermstad sexually abused him while staying overnight at Hjermstad's home. Excell Academy placed Hjermstad on administrative leave and reported the allegation to law enforcement and the Minnesota Department of Education (MDE). Law enforcement investigated the allegation against Hjermstad. Ultimately, no criminal charges were filed against him. MDE also investigated and determined that the evidence did not support the allegation. Excell Academy declined to renew Hjermstad's employment contract for the following school year.
Hjermstad was also a longtime volunteer coach for Hospitality House Youth Development (Hospitality House). Hospitality House is a faith-based nonprofit corporation that operates youth basketball programs. When Hospitality House learned of the allegations against Hjermstad, it placed Hjermstad on a leave of absence and directed him to have no contact with players. Hospitality House officials knew that, before 2015, players had spent the night at Hjermstad's home. After conducting its own investigation, Hospitality House reinstated Hjermstad as a volunteer coach in November 2015 subject to certain conditions, including that Hjermstad was prohibited from having overnights with players.
In 2016, Hjermstad interviewed for a physical education teaching position at Mastery. Mastery's hiring process involved a division of labor between Harvest Network of Schools Inc. (HNS) and Mastery's principal. HNS was a charter-school management organization that provided services in finance, operations, and human resources. Mastery and Best contracted with HNS to recruit employees, manage the hiring process, and train new hires. These contracts stated that Mastery and Best believed their "ability to provide exceptional educational instruction . . . will be enhanced by contracting for many of [their] management, administrative and operational needs." HNS managed job listings and forwarded candidates to school principals to select a candidate to interview, conduct the interview, and file a request-to-hire form with HNS. The request-to-hire form included a pre-hiring checklist of procedures to be completed by departments within HNS and the school principal. The form required HNS's human-capital department to confirm that the candidate submitted three references and that the references had been interviewed. The form required HNS's human-resources department to check whether the candidate had a completed application on file, conduct a criminal background check, collect transcripts, verify teaching credentials, create an employment file, and send new hire forms to payroll. Finally, if the principal decided to hire the candidate, the principal needed to fill out the request-to-hire form, date and return the form to HNS, and note the candidate's requested salary and the salary approved by HNS's human-resources department. Ordinarily, the CEO or CFO of HNS signed off on the forms before the school extended offers to hire to prospective employees.
HNS dissolved in 2019 and is not a party to this case.
According to the principal and former HNS employees, the human-capital department was responsible for the recruitment and retention of teachers and students. The duties of this department were procedurally distinct from those of the human-resources department.
The process outlined in the request-to-hire form was not followed when hiring Hjermstad. Mastery's principal interviewed Hjermstad in June 2016. Before the interview, the principal only received Hjermstad's resume from HNS. Hjermstad had not provided an application or references. His resume reflected he was formerly employed at Excell Academy and volunteered at Hospitality House. The principal asked why Hjermstad left Excell Academy. Hjermstad explained he was let go due to budget cuts. Impressed with Hjermstad's experience, the principal partially filled out a portion of a request-to-hire form which was later approved by HNS's CFO. Mastery sent Hjermstad a letter offering to hire him contingent on clearing a criminal background check. Upon receiving Hjermstad's acceptance, HNS further requested that Hjermstad fill out a job application and provide three letters of reference and his transcripts. Hjermstad provided three non-supervisory references and left blank the job application's inquiry into why he left his former employer. HNS confirmed Hjermstad passed a criminal background check and possessed a valid teaching license. Neither HNS nor Mastery's principal contacted any of Hjermstad's references. Hjermstad began teaching at Mastery. He also coached basketball for the school's joint Best-Mastery team on a volunteer basis.
Between 2016 and 2018, Doe was a student at Best and played basketball during his fifth and sixth-grade years on Hjermstad's Best-Mastery team. With his mother's permission, Doe spent the night at Hjermstad's home many times. Though the exact date is disputed, one time Doe spent the night at Hjermstad's home along with Doe's younger brother and two players from the Hospitality House basketball team after an event at Mastery's gymnasium. Doe alleged that he woke up in the middle of the night and discovered Hjermstad's mouth on Doe's penis. Doe told his brother what happened and called his mother to pick him up. But, Doe did not disclose the event to her.
In 2020, the parent of another Mastery student reported to Mastery's principal that Hjermstad sexually abused her son when he stayed overnight at Hjermstad's home before a basketball game. Mastery informed law enforcement and MDE about the allegations and placed Hjermstad on administrative leave. A short time later, Mastery's board of directors voted to terminate Hjermstad's employment for cause. Hospitality House also terminated Hjermstad as a volunteer coach. The state charged Hjermstad with criminal sexual conduct. After discovering a news article reporting on Hjermstad's pending criminal charges based on the allegation, Doe's mother asked Doe whether anything happened between him and Hjermstad. Doe reported Hjermstad sexually abused him during his fifth or sixth-grade year at Mastery. Doe's mother contacted law enforcement, leading to more criminal charges against Hjermstad.
In July 2020, Doe sued respondents Best and Mastery (the schools) and Hjermstad. Doe asserted negligence, negligent-supervision, negligent-retention, negligent-hiring, and vicarious-liability claims against the schools. The district court granted the schools' motion for partial summary judgment on Doe's negligent-supervision and vicarious-liability claims. The district court determined that Hjermstad's behavior was outside the scope of his employment and unforeseeable to the schools. In February 2022, the schools moved for summary judgment on Doe's remaining claims arguing that they were entitled to statutory discretionary immunity. The district court agreed and granted summary judgment.
Doe's appeal follows.
DECISION
Doe limited this appeal to the summary-judgment dismissal of his negligent-hiring claim. We review de novo the grant of summary judgment to determine whether there are genuine issues of material fact and whether the district court erred in its application of the law. Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017). We view "the evidence in the light most favorable to the nonmoving party and resolve all doubts and factual inferences against the moving part[y]." Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn. 2019) (quotation omitted).
The applicability of statutory discretionary immunity is a question of law we review de novo. Jepsen as Trustee for Dean v. County of Pope, 966 N.W.2d 472, 488 (Minn. 2021). The Minnesota Municipal Tort Claims Act (MTCA), Minn. §§ 466.01-.15 (2022), abrogates the longstanding doctrine of sovereign immunity and subjects municipalities to tort liability. Id. The MTCA provides that "every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function." Minn. Stat. § 466.02. The definition of "municipality" includes charter schools. See Minn. Stat. § 466.01, subd. 1 (defining "municipality" as including a "school district, however organized"); Minn. Stat. § 124E.03, subd. 2(d) (2022) ("A charter school is a district for the purposes of tort liability under chapter 466."). While charter schools are subject to tort liability under the MTCA, they also enjoy the MTCA's statutory exceptions to the tort liability rule. See Minn. Stat. § 466.03. Statutory discretionary immunity is one such exception. Id., subd. 6.
Statutory discretionary immunity balances separation-of-powers principles by preventing the judicial branch, through the oversight of tort actions, from second guessing certain policymaking activities that are legislative or executive in nature. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 718 (Minn. 1988). Statutory discretionary immunity applies to decisions requiring an exercise of discretion, even if that discretion is abused. See Minn. Stat. § 466.03, subd. 6 (stating liability does not arise from "[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused").
To determine whether statutory discretionary immunity applies, we first identify the precise government conduct being challenged. Schroeder v. St. Louis County, 708 N.W.2d 497, 504 (Minn. 2006). Second, we examine whether the conduct involved a decision that was discretionary and balanced policy objectives. Id. The Minnesota Supreme Court has recognized the difficulty in analyzing the scope of decisions subject to statutory discretionary immunity and has developed a framework that distinguishes protected "planning" or "policymaking" decisions from unprotected "operational" decisions. Olson v. Ramsey County, 509 N.W.2d 368, 371 (Minn. 1993); see also Fisher v. County of Rock, 596 N.W.2d 646, 652 (Minn. 1999). Because planning-level decisions require the balancing of policy objectives, they are afforded immunity. Jepsen, 966 N.W.2d at 489 (quotation omitted). Operational decisions involve "ordinary day-to-day operations of the government" and are generally not protected by immunity. Id. But this distinction between planning and operational decisions "should not be used in a conclusory manner." Nusbaum, 422 N.W.2d at 722. Instead, "it should be used as a tool for focusing attention on the central inquiry of whether the challenged government conduct involved a balancing of policy objectives." Id.
The party asserting immunity has the burden "to prove that it is immune under the discretionary function exception." Id. at 722 n.6. The nature of evidence necessary to support the application of immunity varies. In some cases, a governmental entity must provide particular evidence that it engaged in planning or policy-level decision-making. See Conlin v. City of Saint Paul, 605 N.W.2d 396, 402 (Minn. 2000). But in other cases, the "challenged government conduct facially involves a balancing of policy objectives" where "it may be unnecessary . . . to produce evidence of how the decision precipitating the challenged conduct was made." Nusbaum, 422 N.W.2d at 722 n.6.
Doe disputes the dismissal of his negligent-hiring claim. We review Doe's negligent-hiring claim and the applicability of statutory discretionary immunity considering two factually similar cases. See Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 212 (Minn.App. 2001), rev. denied (Minn. Dec. 11, 2001); Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 320 (Minn.App. 1997), aff'd in part, 582 N.W.2d 216 (Minn. 1998) (the supreme court did not review the issue of statutory discretionary immunity and negligent hiring when affirming in part). In Fear, this court addressed the application of statutory discretionary immunity to a negligent-hiring claim against a public school district. 634 N.W.2d at 208. The school district hired a snow-removal contractor to plow the school parking lot and pile the snow on the school's playground. Id. at 20809. A student was injured when he fell from the snow pile. Id. at 208. He brought negligence claims against the school district, the school's employees who were supervising the student at the time of his injury, and the snow-removal contractor. Id. at 209.
Along with asserting that the placement of the snow was a discretionary decision subject to immunity, the school district argued that the hiring, supervision, and training of its employees were also discretionary decisions entitled to immunity. Id. The school submitted the principal's affidavit to support its motion for summary judgment. Id. at 212. While it is unclear whether the principal articulated particular policy factors that the school weighed about the hiring, training, and supervising of its employees, this court reviewed the affidavit and noted playground supervision decisions were "distinct from the planninglevel decisions involved in hiring, training, and supervising district employees." Id. at 215.
Fear held that "[h]iring, supervising, training, and retaining municipal employees are policy-level activities that are protected by statutory immunity." Id. at 212 (citing Gleason, 563 N.W.2d at 320). Thus, this court determined that statutory discretionary immunity protected the school district from the student's negligent-hiring claim because "caselaw holds that analogous municipal organizations are entitled to statutory immunity for the hiring, training, and supervision of their employees." Id.
In Gleason, a plaintiff asserted negligent supervision, hiring, training, and retention claims against Metropolitan Council Transit Operations (MTCO) and an MTCO bus driver after the driver neglected to secure plaintiff's wheelchair with safety belts and refused to transport her. 563 N.W.2d at 314. We first addressed the plaintiff's claims of (1) false imprisonment because the driver did not allow plaintiff to get off the bus and (2) intentional infliction of emotional distress for the driver's belittling treatment. Id. at 320. We concluded the conduct "did not involve the balancing of public policy considerations," rather it involved "operational level activity for which statutory immunity is not available." Id. (quotation omitted).
But, when considering plaintiff's negligent supervision, hiring, training, and retention claims, the Gleason court noted that those claims "in contrast, are based on policy level activity" and barred by statutory discretionary immunity. Id. (citing Oslin v. State, 543 N.W.2d 408, 415-16 (Minn.App. 1996) (determining that decisions about supervision and retention "were necessarily entwined in a layer of policy-making"), rev. denied (Minn. Apr. 1, 1996)); see also Watson by Hanson v. Metro. Transit Comm'n, 553 N.W.2d 406, 413 (Minn. 1996) (holding that training employees was planning-level conduct protected by statutory immunity).
Applying this framework to the first step of its statutory discretionary immunity analysis, the district court correctly found that the challenged government conduct was Mastery's decision to hire Hjermstad. The parties do not dispute this determination.
We turn now to the second step and examine whether the "challenged . . . conduct involved a balancing of policy objectives." Nusbaum, 422 N.W.2d at 722. Doe argues the district court failed to place the burden on the schools to prove that they made a policy decision that entitled them to immunity. We disagree. As discussed above, the nature of the evidence necessary to satisfy the burden and support the application of immunity varies. The government entity's burden to produce evidence in Fear and Gleason did not include the production of specific evidence that showed they weighed economic, social, and political policy factors when making their hiring decisions. When the challenged conduct "facially involve[d] a balancing of policy objectives" it is "unnecessary . . . to produce evidence of how the decision precipitating the challenged conduct was made." Id. at 722 n.6. Put another way, the government entities in Fear and Gleason did not need to produce evidence about their hiring decisions because their decisions to hire employees facially involved balancing policy considerations and the discretion protected by statutory discretionary immunity. Contrary to Doe's assertion, the district court did apply the correct burden to show entitlement to statutory discretionary immunity to the schools, and concluded the burden was satisfied under Fear. Mastery's decision to hire Hjermstad is analogous to the protected decisions in Fear to hire the school district's teachers which facially involved the balancing of policy objectives. See id. Thus, we agree the schools are entitled to statutory discretionary immunity on Doe's negligent-hiring claim.
Doe argues that Fear does not apply and should only be read to afford statutory discretionary immunity for high-level policy decisions that govern how a school generally conducts its hiring practices. We disagree. A fair reading of Fear shows the challenged conduct involved decisions to hire, train, and supervise individual school employees, particularly, the employees who were present on the playground during the student's injury. 634 N.W.2d at 215. Because the challenged conduct here involves the decision to hire Hjermstad, an individual employee, there is little basis to say Fear does not control when applied to an individual hiring decision. And our holding in Gleason granted immunity to the MTCO's decision to hire the individual driver who later refused to secure and transport the plaintiff. 563 N.W.2d at 320. The challenged conduct in Gleason was not a high-level decision by the MTCO about how to conduct their hiring practices. Id.
Finally, Doe contends that this application of Fear means that every hiring decision is a de jure policy-level decision that shields governmental entities and schools from liability. We do not conclude that Fear immunizes schools from all hiring decisions. Our decision is limited to the facts here. We conclude that the schools are entitled to statutory discretionary immunity on Doe's negligent-hiring claim.
Because we affirm based on statutory discretionary immunity, we need not reach the issue of the foreseeability of Hjermstad's conduct raised by the schools as an alternate basis to affirm the district court's summary-judgment dismissal of Doe's negligent-hiring claim.
Affirmed.