author: Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Scott E. SELMER, an Attorney at Law of the State of Minnesota.
    No. C8-93-1638.
    Supreme Court of Minnesota.
    Nov. 30, 2001.
   ORDER

On September 11, 1997, this court suspended petitioner Scott E. Selmer from the practice of law for 12 months. In re Selmer, 568 N.W.2d 702 (Minn.1997). Petitioner filed a petition for reinstatement with this court on October 24, 2000, and a panel of the Lawyers Professional Responsibility Board conducted a hearing on the petition for reinstatement. The panel recommends that petitioner be reinstated to the practice of law and placed on supervised probation for five years subject to the following conditions:

a. Petitioner shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Petitioner shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, petitioner shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Petitioner shall abide by the Minnesota Rules of Professional Conduct.
c. Petitioner shall be supervised by a licensed Minnesota attorney appointed by the Director to monitor compliance with the terms of this probation. Petitioner shall not agree to represent any client until the supervisor has signed a consent to supervise. Petitioner shall provide to the Director the names of four attorneys who have agreed to be nominated as petitioner’s supervisor no later than two weeks from the date of the court’s reinstatement order. If, after diligent effort, petitioner is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Petitioner shall make active client files available to the Director upon request.
d. Petitioner shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Petitioner shall contact the supervisor and schedule a minimum of one in-person meeting per month. Petitioner shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Petitioner’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. During the period of probation, petitioner shall not represent himself or close family members. Petitioner shall promptly advise his supervisor and the Director’s Office of any dispute involving petitioner as a potential litigant or witness.
f. Petitioner shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which petitioner is handling and which will ensure that petitioner regularly reviews each and every file and contemplates legal matters on a timely basis.
g. Petitioner shall pay in full the outstanding Wisconsin disciplinary judgment before the conclusion of his probation and shall provide the Director with a copy of the satisfaction of judgment at least six months prior to the end of his probationary period.
h. Petitioner will make good faith efforts to reduce and/or satisfy all outstanding tax liens and civil judgments. In addition, petitioner will provide the Director’s Office with a repayment plan for satisfying his past-due tax liabilities and the Schurstein civil judgment.
i. Prior to resuming solo practice or taking management responsibilities for a firm, petitioner shall provide to the Director’s Office a business plan including budget and financing arrangements indicating how he will pay his outstanding judgments and manage his practice in a financially responsible manner.
j. Within 60 days from the date petitioner resumes practice, he shall provide his probation supervisor with a written plan, acceptable to the Director, outlining office procedures designed to ensure that petitioner is in compliance with probation requirements. Petitioner shall provide progress reports as requested by either his supervisor or the Director’s Office.

The Director and petitioner agree with the panel’s recommendation and conditions of probation.

This court has independently reviewed the file and approves the recommended disposition.

IT IS HEREBY ORDERED that petitioner Scott E. Selmer is reinstated to the practice of law in the State of Minnesota and is placed on supervised probation for

five years subject to the conditions set forth above.

BY THE COURT:

Paul H. Anderson Associate Justice


source: Caselaw Access Project

author: GILBERT, Justice.

license: Public Domain

text:
    AMERICAN TOWER, L.P., a Delaware limited partnership, Respondent, APT Minneapolis, Inc., a Delaware corporation, Plaintiff, v. CITY OF GRANT, Petitioner, Appellant.
    No. C1-00-786.
    Supreme Court of Minnesota.
    Dec. 6, 2001.

      James M. Strommen, Karen R. Cole, Minneapolis, for appellant.
    Gary A. Van Cleve, Mark D. Christo-pherson, Bloomington, for respondent.
    Susan L. Naughton, St. Paul, for amici curiae League of Minnesota Cities.
    Donald Smith, Edina, for amici curiae Minnesota Association of Realtors.
   OPINION

GILBERT, Justice.

We must decide whether appellant, City of Grant (City), complied with the requirements contained in Minn.Stat. § 15.99 (2000) in denying respondent’s request for a conditional use permit (CUP) more than 60 days after receiving respondent’s written request. We hold that the City did not comply with the statutory requirements and affirm the court of appeals for the reasons stated below. «

Respondent, American Tower, is a limited partnership engaged in the business of constructing communications towers for lease by providers of wireless digital telephone and pager services. American Tower sought to construct a communications tower in the City of Grant, a Minnesota municipal corporation. Under the City’s ordinances, American Tower had to obtain a CUP in order to build the tower.

On May 5, 1999, the City Clerk sent a CUP application to American Tower. It is the City’s practice to send to a prospective applicant a copy of Resolution No.1996-11 together with the CUP application. This resolution was adopted by the City in 1996 and states:

[T]he Town of Grant hereby extends the timelines under Minnesota Statutes § 15.99 for each and every written request relating to zoning * * * for a permit, license, or other governmental approval of an action.

The text of the resolution explains that the resolution was adopted because the City lacks the resources to process zoning applications within 60 days. The resolution also states that the City’s authority to extend the statute’s 60-day review period is based on Minn.Stat. § 15.99, subd. 8(f) (2000).

The City’s CUP application contains a double-sided application form. Appearing on page 2, directly above the signature line, is the following statement:

Extension of Time Deadlines: You are hereby notified that the City of Grant is hereby extending the time deadlines required in M.S. section 15.99 with respect to the written request you have made to the City. The extension is made for an additional sixty (60) days. The reason for the extension is to enable the City Council and the Planning Commission to more fully deliberate with respect to your request and to allow City staff and consultants time to prepare the necessary findings with respect to the City’s ultimate determination. This timeline does not begin until the application is complete with all required submissions.

On August 31, 1999, American Tower filed a written CUP application. Its application did not include page two, which contains the extension notice and the signature line. On September 27, 1999, the City Planning Commission recommended that the City Council approve the application. The City Council tabled consideration of American Tower’s application at its meetings on October 5 and November 2, 1999. At its December 7 meeting, the Council denied American Tower’s application for reasons that are not contested here.

American Tower challenged the denial of its application in district court, contending that the City was required to issue the CUP as a matter of law under Minn.Stat. § 15.99. Finding that there was no dispute as to the material facts of the case, the court granted American Tower’s motion for summary judgment. The court concluded that under section 15.99, the City was required to issue the CUP because the City had failed to make a decision within 60 days of the application’s submission and had failed to obtain an extension. The court rejected the City’s argument that section 15.99 is preempted by the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (partially codified at 47 U.S.C. § 332 (1994 & Supp. V 1999)).

The court of appeals, in a 2-1 decision, affirmed the district court. According to the court of appeals, the statutory scheme envisioned by the legislature in enacting section 15.99 requires a city to act in the normal course on a CUP application within 60-days after it is received and permits a city to grant itself an extension only if there are “extenuating circumstances.” American Toiuer, L.P. v. City of Grant, 621 N.W.2d 37, 43 (Minn.App.2000)(quoting Hearing on S.F. No. 6U7 Before the Senate Comm, on Governmental Operations and Veterans (Mar. 29, 1995)(state-ment of Sen. Riveness)). The court found that the City’s practice of prospectively granting itself a 60-day extension to act on zoning applications was inconsistent with the 60-day deadline contained in section 15.99. Therefore, the court held that a municipality cannot extend the initial 60-day deadline for a decision on a zoning application to 120 days by granting itself the extension before receiving the application to which the extension applies. The court also held that section 15.99 is not preempted by the federal statute.

The City appealed, claiming that section 15.99 permits a municipality to extend the initial 60-day deadline by providing written notice of the extension in the application provided to potential applicants. The City does not contest the court of appeal’s holding regarding preemption and that issue is not before us.

The question before us is whether section 15.99 permits a municipality to extend the 60-day deadline for response, before receiving a written request relating to zoning, by providing written notice of extension in the application form provided to potential applicants. Addressing this question is a matter of statutory construction. Interpreting a statute is a question of law that this court reviews de novo. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). When interpreting a statute, a court must first determine whether the statute’s language, on its face, is ambiguous. See Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). “A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Id. Words and phrases are to be construed according to their plain and ordinary meaning. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). Where the legislature’s intent is clearly discernable from plain and unambiguous language, statutory construction is neither necessary nor permitted and courts apply the statute’s plain meaning. Ed Herman & Sons v. Russell, 535 N.W.2d 803, 806 (Minn.1995); MinmStat. § 645.16 (2000).

In 1995, the Minnesota legislature enacted MinmStat. § 15.99, which establishes time deadlines for local governments to take action on zoning applications. Act of June 1, 1995, ch. 248, art. 18, § 1, 1995 Minn. Laws 2415, 2477-78. Subdivision 2 provides:

Except as otherwise provided in this section and notwithstanding any other law to the contrary, an agency must approve or deny within 60 days a written request relating to zoning * * *. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

Minn.Stat. § 15.99, subd. 2 (2000).

Subdivision 3(f) permits an agency to extend the time limit before the end of the initial 60-day period “by providing written notice of the extension to the applicant.” Minn.Stat. § 15.99, subd. 3(f). “The notification must state the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant.” Id.

Subdivision 3(a) details the method for calculating the 60-day period. It provides:

The time limit in subdivision 2 begins upon the agency’s receipt of a written request containing all information required by law or by a previously adopted rule, ordinance, or policy of the agency. If an agency receives a written request that-does not contain all required information, the 60-day limit starts over only if the agency sends notice within ten business days of receipt of the request telling the requester what information is missing.

Minn.Stat. § 15.99, subd. 3(a) (2000).

To address the question before us, we must first determine whether the deadline extension provision in section 15.99 is ambiguous. See Amaral, 598 N.W.2d at 384. If the provision is clear, we must apply the statute’s plain meaning. Minn. Stat. § 645.16; Ed Herman & Sons, 535 N.W.2d at 806. Subdivision 3(f) provides that “[a]n agency may extend the time limit in subdivision 2 before the end of the initial 60-day period.” Minn.Stat. § 15.99, subd. 3(f). Thus, if the City desires an extension of time to complete its application review process, it may extend the time frame “before the end of the initial 60-day period.” Id. Subdivision 3(a), which details when extensions of time are permissible, specifies how to calculate the initial 60-day period. Minn.Stat. § 15.99, subd. 3(a). “The time limit in subdivision 2 begins upon the agency’s receipt of a written request.” Id. In this case, the City received a written request for a CUP from American Tower on August 31, 1999. The City’s receipt of the written request triggered both the commencement of the 60-day time limit to approve or deny the request and the commencement of the period in which the City could extend the 60-day deadline.

The City focuses on the word “before” and contends that subdivision 3(f) permits a municipality to extend the deadline at any time, even before receiving the written zoning request. Therefore, it argues that Resolution No.1996-11 and the extension notice on the application form sent to the applicant comply with subdivision 3(f). However, by emphasizing the word “before,” the City ignores the remainder of the statute, which specifies that a municipality may extend the deadline by providing written notice of the extension to the applicant. Subdivision 3 defines the time limit for application and extensions and subdivision 3(a) provides that “[t]he time limit in subdivision 2 begins upon the agency’s receipt of a written request.” Id. The City’s interpretation would nullify the time frame established by the legislature and is therefore directly contrary to the plain language of the statute.

This conclusion that the City cannot extend the initial 60-day period before that 60-day period begins is consistent with the requirement in subdivision 3(f) that written notice of the extension be provided to the applicant and that the applicant be notified of the reasons for the extension and its anticipated length. Because one is not an applicant until one has submitted a zoning request, the use of the term “applicant” indicates that an extension must be made after the application is received by the agency.

Our conclusion is also consistent with section 15.99’s individualized approach based on an applicant’s zoning requests and definitive deadline and procedures for extensions within the statute. Ruling on a conditional use permit is a quasi-judicial act. Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 574 (Minn.2000)(citing Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn.1981)). Section 15.99 provides applicants with a number of procedural safeguards. Subdivision 2 mandates that an agency provide written reasons for the denial of a zoning request at the time the request is denied. Minn.Stat. § 15.99, subd. 2. Failure of an agency to deny the request within 60 days is approval of the request. Id. The City’s resolution, by granting the City an extension “for each and every written request relating to zoning” in advance of an application, is inconsistent with this case-by-case approach because it prospectively establishes generalized rules for all zoning requests.

For the foregoing reasons, we affirm the decision of the court of appeals in regard to section 15.99. However, the court of appeals’ conclusion that the City’s resolution conflicts with the language and intent of section 15.99 was based, in part, on the conclusion that section 15.99 permits an agency to invoke subdivision 3(f)’s extension provision only when there are “extenuating circumstances.” We disagree. Subdivision 3(f) permits an agency to extend the time limit in subdivision 2 “before the end of the initial 60-day period by providing written notice of the extension to the applicant.” Minn.Stat. § 15.99, subd. 3(f). The statute does not limit the application of subdivision 3(f) to extenuating circumstances — it merely requires that the reasons be stated.

Affirmed as modified.

      . American Tower contends that it did not receive page two of the application from the City, but admits that it received this page for purposes of summary judgment.


text:
    Steven LOUIS, et al., Respondents, v. Robert LOUIS, Petitioner, Appellant.
    No. C3-00-1325.
    Supreme Court of Minnesota.
    Dec. 6, 2001.

      Thomas A. Gilligan, Jr., St. Paul, for the appellant.
    David G. Johnson, Prior Lake, for the respondent.
   OPINION

GILBERT, Justice.

This case involves a landowner’s contention that there is no duty of care owed to someone invited onto his land unless a special relationship exists between the landowner and the entrant. The district court ruled in favor of appellant, Robert Louis, on his motion for summary judgment and the court of appeals reversed and remanded. We affirm, although we do so on different grounds than those cited by the court of appeals.

The facts relevant to this appeal are undisputed. In the spring of 1995, appellant, Robert Louis, purchased a used aboveground swimming pool. He also purchased the deck surrounding the pool as well as a 7-foot water slide and a jump board that were attached to the deck. He installed the pool, deck, slide, and jump board in his backyard by himself. The deep end of the pool was approximately 6 feet deep while the shallow end of the pool was approximately 3 ½ feet deep.

Appellant decided to attach the slide to the deck above the shallow end of the pool. He did so because he and his wife did not want to worry about young children going down the slide into the deep end of the pool. The jump board was attached to the deck above the deep end of the pool and there were two signs on the edge of the pool stating “Danger — Do Not Dive.”

Appellant believed that it was dangerous to dive into the pool but did not think there was any danger in going down the slide either feetfirst or headfirst. He believed the angle of the slide made the entry into the water from the slide more horizontal than a dive would, causing one to skim across the top of the water rather then enter the water vertically as one would in a dive. While no one had complained to appellant about hitting the bottom of the pool from going down the slide, appellant believed heel marks he had noticed on the bottom of the pool were from people going down the slide feetfirst, but he did not know this for a fact.

On August 2, 1997, appellant hosted a gathering of family members at his home. He allowed his guests to use the swimming pool, jump board, and slide. A handmade sign was posted indicating no diving but no warnings about using the slide were posted. Appellant’s brother, respondent Steven Louis, was among those present at appellant’s home. Respondent had been in appellant’s pool one prior time but had never used the slide before.

Respondent observed mostly children playing in the pool during the day but at all times saw a few adults in the pool as well. He watched children go down the slide throughout the day doing headfirst “belly slides.” He also saw David Louis, a brother to both respondent and appellant, do a headfirst belly slide. Appellant, who normally did not instruct or orient guests about the use of the slide, told his brother David earlier in the day about a sticker on the slide indicating the proper way to do a belly slide and had told David that he could do such a slide. A diagram on the sticker included a picture of a figure going down the slide headfirst and included the words “Correct belly slide: Head up, arms straight ahead, fingers pointing up.”

After respondent observed David’s headfirst slide, David told respondent that it was fun and to “give it a try.” Respondent then decided to go down the slide. He was going to slide down feetfirst until he saw the same diagram on the slide that appellant had pointed out to David. After seeing this diagram, respondent attempted to imitate the position of the figure and went down the slide headfirst. He hit the water and then the bottom of the pool, resulting in a burst fracture of his C6 vertebrae.

Respondent, who is 5'8" tall, admitted that he knew before going down the slide that the depth of the water at the end of the slide was about waist high on him, which he later learned was 3 ½ feet deep. At the same time, respondent did not fear for his or anyone else’s safety and he did not caution anyone, including his own children, about going down the slide headfirst. He never told appellant either before or after the accident that he felt the slide was unsafe.

Respondent sued appellant alleging negligence. Appellant moved for summary judgment arguing that (1) he owed no duty to respondent because there was no special relationship between them, and (2) that respondent had primarily assumed the risk of harm. The district court denied appellant’s motion as to primary assumption of the risk, finding that genuine issues of material fact existed. However, the court then held that appellant was entitled to summary judgment, concluding that he did not owe a duty of care to respondent because there was no evidence that appellant had actual or constructive knowledge of the danger associated with doing headfirst belly slides into his swimming pool.

Respondent appealed the district court’s holding on the duty of care issue and appellant cross-appealed the court’s denial of summary judgment based on primary assumption of the risk. The court of appeals affirmed the district court’s denial of summary judgment based on primary assumption of the risk but reversed the district court’s holding on the duty of care issue. In doing so, the court of appeals held that there was a genuine issue of material fact for the jury to decide whether appellant owed respondent a duty to warn him of the dangers associated with sliding headfirst into the shallow end of the pool. Specifically, the court of appeals concluded that the sticker on the slide instructing how to do a headfirst belly slide into the pool presented appellant with at best contradictory information about the safety of such a slide. The sole issue brought before this court is whether appellant owed a duty of care to the respondent.

Summary judgment is appropriate when a district court determines that “there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. We review a district court’s grant of summary judgment to determine whether there are any genuine issues of material fact and whether the court erred in its application of the law. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). On appeal, we view the evidence in the light most favorable to the party against whom the motion for summary judgment was granted. Id . A defendant in a negligence action is entitled to summary judgment when the record reflects a complete lack of proof on any of the four elements necessary for recovery: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of that duty being the proximate cause of the injury. Id.

Any legal analysis of an action brought against a landowner alleging negligence must begin with an inquiry into whether the landowner owed the entrant a duty. Baber v. Dill, 531 N.W.2d 493, 495 (Minn.1995). Generally, the existence of a legal duty is an issue for the court to determine as a matter of law. Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985). Since 1972, we have consistently held that a landowner has a duty “‘to use reasonable care for the safety of all such persons invited upon the premises.’ ” Sutherland v. Barton, 570 N.W.2d 1, 7 (Minn.1997) (quoting Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972)). The landowner has this duty regardless of whether the entrant is a licensee or an invitee. Conover v. Northern States Power Co., 313 N.W.2d 397, 402 (Minn.1981) (citing Peterson, 294 Minn. 161, 199 N.W.2d 639). Therefore, an entrant’s status as a “licensee” or “invitee” is not the controlling factor in determining the scope of the duty but is merely one element among many to be considered in assessing the landowner’s duty to use reasonable care for the safety of persons invited on the premises. Bisher v. Homart Development, 328 N.W.2d 731, 733 (Minn.1983) (emphasis added). This rule imposes the duty of reasonable care on both the landowner and the entrant. Peterson, 294 Minn. at 174, 199 N.W.2d at 647.

While a landowner generally has a continuing duty to use reasonable care for the safety of all entrants, this duty is not absolute. Baber, 531 N.W.2d at 496. We have adopted the rule set out in Restatement (Second) of Torts § 343A (1965), which reads:

A possessor of land is not liable to his invitee for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Baber, 531 N.W.2d at 495-96 (citing Rawleigh, 274 Minn. at 496-97, 144 N.W.2d at 557) (quoting Restatement (Second) of Torts § 343A (1965)). The rationale underlying this rule is that, generally, “ ‘no one needs notice of what he knows or reasonably may be expected to know.’ ” Baber, 531 N.W.2d at 496 (quoting Sowles v. Urschel Lab., Inc., 595 F.2d 1361, 1365 (8th Cir.1979)); see also Rawleigh, 274 Minn. at 497, 144 N.W.2d at 558 (recognizing that certain situations are so obviously dangerous that the landowner has no duty to warn of them).

We have consistently applied section 343A and have held that landowners are not liable for harm to invitees caused by known or obvious dangers unless the landowner should have anticipated the harm despite its known or obvious nature. See Sutherland, 570 N.W.2d at 7; Baber, 531 N.W.2d at 496. The Minnesota Court of Appeals has applied the language of section 343A in discussing the duty owed to licensees. We believe that such application is consistent with the rule that a possessor of land owes the same duty to all entrants, regardless of their status as invitees or licensees. See Peterson, 294 Minn. at 174, 199 N.W.2d at 647. Before answering the question of whether appellant owed respondent a duty based on the facts in this case, we believe appellant’s arguments based on special relationship precedent warrant further discussion.

Appellant urges this court to conclude that he and respondent did not have a special relationship with one another and hold that “[w]here there is no special relationship, there is no duty to protect.” In support, appellant cites several of our pri- or decisions discussing the existence of a duty based on a special relationship. His reliance on these cases is misplaced.

The holdings in the cases cited by appellant focused solely on whether there was a duty based on the existence of a special relationship between the parties and did not include any discussion of whether there was a duty based on a premises liability theory. See, e.g., Gilbertson v. Leininger, 599 N.W.2d 127, 130-32 (Minn.1999); H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 707-08 (Minn.1996); Harper v. Herman, 499 N.W.2d 472, 474-75 (Minn.1993); (ah holding no duty because there was no special relationship between the parties). No discussion of a duty based on a premises liability theory was warranted in these cases because the negligence claims were not based on a condition located on the defendants’ land. See, e.g., Harper, 499 N.W.2d at 473-74 (jumping off boat into a public lake); Whittemore, 552 N.W.2d at 706-07 (sexual assault by resident of trailer park); Gilbertson, 599 N.W.2d at 128-30 (failure to seek medical assistance). To the contrary, respondent’s negligence claim is based solely on a theory of premises liability; he has never claimed that appellant owed him a duty based on a special relationship. .

Appellant’s attempt to import the language used in the line of special relationship cases into this premises liability case lacks merit. We have consistently recognized that a duty based on a special relationship theory is separate and distinct from a duty based on a premises liability theory. See, e.g., Sutherland, 570 N.W.2d at 7 (discussing a landowner’s duty without any mention of a special relationship); Baber, 531 N.W.2d at 496; (discussing a landowner’s duty without any mention of a special relationship); Peterson, 294 Minn. at 174, 199 N.W.2d at 647 (establishing the duty required of a landowner); see also Snilsberg, 614 N.W.2d at 744-45 (discussing the duty of care issue under separate premises liability and special relationship theories). Accordingly, we hold that, where the negligence claim at issue is based on a theory of premises liability, whether there is a duty owed by the landowner does not depend on the existence of a special relationship.

We now turn to whether appellant was entitled to summary judgment on the grounds that he owed no duty to use reasonable care for the safety of respondent. This legal determination must be made before a court considers assumption of the risk. Baber, 531 N.W.2d at 495. If no duty existed, there is no need to determine whether respondent assumed the risk, thus relieving appellant of the duty. See id. In this case, there is no factual dispute as to appellant’s knowledge of the condition of the premises at issue. Appellant, as possessor of the premises, installed and maintained the pool, deck, and slide and knew that one going down the slide would land in about 3 ½ feet of water. Therefore, as to conditions on appellant’s land, including the swimming pool and slide, appellant had a continuing duty to use reasonable care for the safety of respondent, as an entrant on his premises. See id. at 495-96. Appellant would not have owed a duty, and hence not have been liable for any physical harm caused to respondent, if the danger associated with doing a headfirst belly slide was either known or obvious unless appellant should have anticipated the harm despite its known or obvious nature. See id. Accordingly, the district court must determine if the activity or condition involved known or obvious dangers.

According to the Restatement, “the word ‘known’ denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus, the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated.” Restatement (Second) of Torts § 343A, cmt. b (1965). The district court did not consider this issue in this case. Accordingly, we remand to the district court to determine if the respondent knew that the slide was dangerous and appreciated the probability and gravity of the threatened harm. If the court determines that the danger associated with doing a headfirst belly slide was not a “known” danger, then the court must also consider whether there was an obvious danger.

Under both our case law and the Restatement, the test for what constitutes an “obvious” danger is an objective test: the question is not whether the injured party actually saw the danger, but whether it was in fact visible. Munoz v. Applebaum’s Food Market, Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972). According to the Restatement, a condition is not “obvious” unless both the condition and the risk are apparent to and would be recognized by a reasonable man “in the position of the visitor, exercising ordinary perception, intelligence and judgment.” Restatement (Second) of Torts § 343A, cmt. b (1965).

We are mindful of the fact that certain conditions have been held to involve dangers so obvious that no warning was necessary, including walking into a low hanging branch, walking down a steep hill, walking into a large planter, walking across a 20-foot square pool of water, and skydiving over a lake. See Baber, 531 N.W.2d at 496 (citations omitted). However, we also recognize that the rationale underlying the rule eliminating a duty where the dangers are known or obvious is that “no one needs notice of what he knows or reasonably may be expected to know.” Id. (quoting Sowles, 595 F.2d at 1365). In each of the above cases, the danger associated with the condition at issue was found to be clearly visible, or in plain view, meaning the condition itself posed the obvious danger. See Bisher, 328 N.W.2d at 733-34; Hammerlind v. Clear Lake Star Factory Skydiver’s Club, 258 N.W.2d 590, 593-94 (Minn.1977); Munoz, 293 Minn. at 434, 196 N.W.2d at 922; Sperr v. Ramsey County, 429 N.W.2d 315, 317-18 (Minn.App.1988); Lawrence, 394 N.W.2d at 856. In this case, the district court failed to consider whether the danger associated with the condition and the risk at issue involved such an “obvious” danger. Accordingly, we choose not to answer this question. Instead, we remand to the district court to determine whether the anticipated harm to respondent from using the slide to execute a headfirst belly slide was a harm that was either known to him or one that he reasonably should have been expected to know.

If the district court concludes that the danger was neither known nor obvious as a matter of law, it must hold that appellant was not relieved of his duty to use reasonable care for the safety of respondent. If the court concludes that the danger was either known or obvious as a matter of law, it must then decide whether appellant should nevertheless have anticipated the harm despite its known or obvious danger. Lastly, if the court finds that appellant owed respondent a duty, the jury should then be allowed to decide the primary assumption of risk question since the court has already held that a genuine issue of material fact exists as to this issue. We affirm the judgment of the court of appeals on the reasoning stated herein and remand to the district court.

Affirmed and remanded.

      . The district court correctly stated that a "plaintiff must prove the landowner had actual or constructive knowledge of a dangerous condition to establish a landowner's duty to use reasonable care.” (citing Messner v. Red Owl Stores, 238 Minn. 411, 415, 57 N.W.2d 659, 662 (1953)). However, the district court then stated that whether the appellant owed a duty was dependent on his knowledge of a dangerous situation instead of a dangerous
        condition. In doing so, the district court erroneously focused on whether the appellant had actual or constructive knowledge of the danger associated with doing headfirst belly slides rather than whether he had knowledge of the dangerous condition(s). See Messner, 238 Minn, at 415, 57 N.W.2d at 662 (stating that the plaintiff has the burden of proving either that defendant caused the dangerous condition or that he knew, or should have known that the condition existed) (emphasis added). There is no dispute that the appellant constructed, and therefore had knowledge of, the conditions at issue in this case— the pool and the slide.

      . Appellant did not petition this court for review of the district court’s determination that the doctrine of primary assumption of the risk did not bar respondent's claims.

      . Prior to 1972, Minnesota followed the Restatement (Second) of Torts in determining the duty landowners owed to licensees and invitees. Accordingly, if the court classified the plaintiff as a licensee, the court would look to the Restatement § 342 to determine the duty owed to the plaintiff by the landowner. Dean v. Weisbrod, 300 Minn. 37, 43, 217 N.W.2d 739, 743 (1974) (citations omitted). Similarly, if the court classified the plaintiff as an invitee, the court would look to the Restatement § 343A to determine the duty owed to the plaintiff by the landowner. Peterson v. W.T. Rawleigh Co., 274 Minn. 495, 496-97, 144 N.W.2d 555, 557-58 (1966).

      . Other factors to consider in assessing the duty owed include (1) the foreseeability or possibility of harm; (2) the duty to inspect, repair, or warn; (3) the reasonableness of inspection or repair; and (4) the opportunity and ease of repair or correction. Bisher, 328 N.W.2d at 733 (citing Peterson, 294 Minn, at 174 n. 7, 199 N.W.2d at 648 n. 7).

      . For example, in Snilsberg v. Lalce Washington Club, the court of appeals applied section 343A to determine whether a club not opened to the public owed a licensee plaintiff a duty to warn or protect her from the harm caused by jumping off the defendant's dock into shallow water. Snilsberg v. Late Washington Club, 614 N.W.2d 738, 744 (Minn.App.), rev. denied (Minn. Oct. 17, 2000). Similarly, in Lawrence v. Hollerich, the court of appeals applied section 343A and held that the defendant did not owe the plaintiff, a neighbor, a duty to warn of a hill on the defendant’s land because the steepness of the hill was the only danger posed and this danger was obvious. Lawrence v. Hollerich, 394 N.W.2d 853, 856 (Minn.App.), rev. denied (Minn. Dec. 17, 1986).

      . While neither appellant nor respondent cite to Delgado v. Lohmar, 289 N.W.2d 479 (Minn.1979), in their briefs, Delgado is cited in both Harper and Gilbertson and is essential to understanding the line of special relationship cases. In Delgado, this court adopted the language of the Restatement (Second) of Torts §§ 314, 315 (1965), but did not hold that an affirmative duty to act for the protection of another only arises if a special relationship exists between the parties. See Delgado, 289 N.W.2d at 483-84.

      . Recognizing that a duty based on a theory of premises liability is different than a duty based on a special relationship is consistent with the Restatement (Second) of Torts. The Scope Note for Chapter 12, Topic 7 of the Restatement explicitly recognizes that the sections within the topic, including sections 314, 314A, and 315, deal only with a part of the situations in which there is a duty of protective action. Restatement (Second) of Torts, Ch. 12, Topic 7 Scope Note. The Scope Note goes on to state that "[t]he duty of maintaining land and structures thereon in safe condition which is imposed upon the possessor and lessor by virtue of their possession or of a covenant to repair is stated in §§ 328E-379.” Id. Therefore, while it is appropriate for this court to apply language consistent with sections 314, 314A, and 315 when it is faced with facts warranting such application, as in Harper, Gilbertson, and the other cases cited by appellant, it would be inappropriate for this court to apply the language of cases that have developed out of this court's adoption of these sections of the Restatement where a plaintiff's claim is based solely on a theoiy of premises liability.

      . While the district court held that there was a genuine issue of material fact as to whether respondent knew and appreciated the risk associated with doing a headfirst belly slide, it made this determination when considering primary assumption of the risk. The question of whether a condition or activity was known for purposes of determining whether a duty was owed is generally a question for the court to determine as a matter of law. See Larson, 373 N.W.2d at 289.

      . The jury may then consider the following factors in assessing whether reasonable care was exercised by appellant: (1) the circumstances under which respondent entered appellant’s land (for what purpose); (2) the foreseeability or possibility of harm; (3) appellant’s duty to inspect, repair or warn; (4) the reasonableness of inspection or repair; and (5) the opportunity and ease of repair or correction. See Bisher, 328 N.W.2d at 733 (citing Peterson, 294 Minn, at 174 n. 7, 199 N.W.2d at 648 n. 7). See also 4A Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Civil, CIVJIG 85.28 (4th ed.1999) (discussing how Peterson set out a nonexclusive list of factors that might be considered in determining whether reasonable care was exercised.)


author: PAGE, Justice.

text:
    STATE of Minnesota, Petitioner, Appellant, v. Barbara Mae JOSEPH, et al., Petitioners, Appellants, Church Mutual Insurance Company, Respondent, William Henry, Petitioner, Appellant.
    No. C2-00-1364.
    Supreme Court of Minnesota.
    Dec. 6, 2001.

      Byron M. Peterson, Minneapolis, for appellant State of Minnesota.
    William L. Davidson, Thomas D. Jensen, Minneapolis, for appellants Barbara and James Joseph.
    John M. Steele, Minneapolis, for appellant William Henry.
    Thomas E. McEllistrem, Patrick T. Ti-erney and Theodore J. Collins, St. Paul, for respondent.
   OPINION

PAGE, Justice.

This appeal by Barbara and James Joseph (collectively, the Josephs), the State of Minnesota, and William Henry is from a decision of the court of appeals reversing an order of the Chisago County District Court in a garnishment proceeding against Church Mutual Insurance Company (Church Mutual). In that proceeding, the district court held that Church Mutual was estopped by the six-year statute of limitations and collateral estoppel from denying insurance coverage to the Josephs. The court of appeals reversed, holding that neither the statute of limitations nor collateral estoppel applied. We reverse.

This case comes to this court after rather protracted litigation. On November 27, 1992, a motor-vehicle accident occurred in which Barbara Joseph struck Minnesota State Patrol Trooper William Henry with her minivan, causing him severe injuries. As a result of these injuries, Henry received workers’ compensation benefits from his employer, the State of Minnesota. Barbara Joseph and her husband, James, who was an occupant of the minivan at the time of the accident, both worked as clergy for Two Harbors Gospel Tabernacle (Tabernacle) and, at least initially, claimed to be on church business when the accident occurred. The Josephs had personal automobile insurance for their minivan under a policy written by Royal Insurance Company. In addition, the Tabernacle had an excess liability insurance policy written by Church Mutual that covered “any * ⅞ ⅜ clergyman * * *, but only while acting within the scope of his duties as such.”

Church Mutual was immediately informed of the accident and hired a claim service to investigate whether the Josephs were acting within the scope of their employment when the accident occurred. The claim service issued a report to Church Mutual suggesting that the Josephs were on church business when the accident occurred. Church Mutual notified the Josephs, however, that it was reserving its right to deny coverage under the policy. The Tabernacle then notified Church Mutual of its own investigation into the accident and its conclusion that the Josephs, in fact, were on church business at the time of the accident. The claim service later issued a second report, again suggesting that the Josephs were on church business at the time of the accident.

In 1993, Henry sued the Josephs to recover for his injuries. In January 1994, Henry settled with the Josephs and Royal Insurance Company for the policy limit of $250,000. The settlement agreement protected the Josephs’ personal assets, but preserved Henry’s claim against the Josephs by limiting satisfaction of any judgment to the limit of the Tabernacle’s excess liability insurance policy. Royal Insurance Company tendered defense of Henry’s lawsuit to Church Mutual, which accepted defense of the action, but reserved its right to deny coverage based on the validity of the settlement agreement involving the Josephs, Royal Insur-anee Company, and Henry. In December 1994, the state intervened in Henry’s lawsuit against the Josephs, seeking to protect its subrogation interests based on workers’ compensation benefits it paid to Henry.

The case came to trial on October 30, 1995. In depositions taken before trial, both Barbara and James Joseph stated that they were on church business at the time of the accident. Two years earlier, Barbara had also testified under oath in the course of her criminal plea agreement to two petty misdemeanors that she was on church business at the time of the accident. On November 2, 1995, Church Mutual obtained a handwritten statement prepared by James Joseph stating that, as he then recalled the facts, he and his wife were not on church business when the accident occurred. The following day, Church Mutual notified the Josephs through the Josephs’ attorney that it was denying coverage based on that handwritten statement. Neither Henry nor the state received notification of Church Mutual’s denial of coverage.

On November 9, 1995, the jury returned a verdict in favor of Henry. The district court denied the Josephs’ post-trial motions and they appealed. The court of appeals reversed in part and remanded for a new trial on the issue of liability. Henry v. Joseph, No. C9-96-433, 1996 WL 601625, at *4 (Minn.App. Oct.22, 1996), rev. denied (Minn. Dec. 17, 1996). On remand, the district court granted summary judgment in favor of Henry. The Josephs again appealed, and the court of appeals reversed and remanded. Henry v. Joseph, No. C5-94-672, 1998 WL 481932, at *7 (Minn.App. Aug.18, 1998), rev. denied (Minn. Oct. 20, 1998). On remand, a second jury trial was held on the issue of liability. The jury again found for Henry. This time no appeal was taken.

On or about October 27, 1999, Church Mutual commenced a declaratory judgment action against the Josephs and Henry in Washington County District Court seeking a determination that the Josephs were not acting in the performance or scope of their employment when the accident occurred and, thus, were not covered under the Tabernacle’s excess liability insurance policy. At some point, Church Mutual sought to join the state as a party to the action. Neither the state nor the other parties opposed the state’s joinder.

On or about October 29, 1999, the state, as creditor, commenced a garnishment proceeding in Chisago County District Court, naming Church Mutual as garnishee and the Josephs as debtors. Church Mutual denied that it held any property belonging to the Josephs. The state then filed a supplemental complaint, to which Church Mutual responded that the Josephs were not on church business when the accident occurred and, therefore, were not covered under the Tabernacle’s excess liability insurance policy.

On February 16, 2000, during the pen-dency of the garnishment proceeding, the Washington County District Court dismissed Church Mutual’s complaint for declaratory relief as time-barred. Specifically, the court held that the statute of limitations applicable to contracts, Minn. Stat. § 541.05, subd. 1 (2000), barred Church Mutual from denying the Josephs coverage under the Tabernacle’s excess liability insurance policy because the issue had not been litigated within six years of the date of the accident or the date Henry notified the Josephs of his claim against Church Mutual. The court also denied Church Mutual’s motion to join the state as moot. Church Mutual did not appeal and the judgment entered by the district court became final in April 2000.

Henry intervened in the Chisago County garnishment proceeding, alleging that the decision in the Washington County declaratory judgment proceeding barred relit-igation of the coverage issue in the garnishment proceeding. The parties fled cross-motions for summary judgment and, on July 17, 2000, the Chisago County District Court granted summary judgment in favor of the state. The court held that the six-year statute of limitations barred Church Mutual’s defenses concerning coverage and that Church Mutual was collaterally estopped from relitigating that issue. Church Mutual appealed.

The court of appeals reversed and remanded. State v. Joseph, 622 N.W.2d 358, 364 (Minn.App.2001). The court held that the statute of limitations did not apply to declaratory judgment actions or defenses. Id. at 362. The court also held that the district court erred in applying collateral estoppel because the Washington County District Court improperly dismissed Church Mutual’s complaint for declaratory relief as time-barred. Id. at 363. The court concluded that, due to the improper dismissal, the Washington County District Court “never reached the merits of the coverage defense” and that Church Mutual “never had any opportunity to present evidence on the critical coverage issue.” Id. In addition, the court held, sua sponte, that the Washington County judgment was not the law of the case in the garnishment proceeding because the parties had not litigated the coverage defense. Id. at 364.

This appeal raises three questions: (1) whether the doctrine of res judicata precludes Church Mutual from asserting in the garnishment proceeding that the Josephs are not entitled to coverage under the Tabernacle’s excess liability insurance policy; (2) in the alternative, whether waiver and estoppel preclude litigation of the coverage issue in the garnishment proceeding; and (3) whether, under the doctrine of the law of the case, the judgment entered in the declaratory judgment proceeding applies to the garnishment proceeding.

I.

On appeal from summary judgment, we consider whether genuine issues of material fact exist and whether the lower courts erred in applying the law. Wilson v. Comm’r of Revenue, 619 N.W.2d 194, 197 (Minn.2000). The applicability of res judicata is a question of law subject to de novo review. Care Inst., Inc.-Roseville v. County of Ramsey, 612 N.W.2d 443, 446 (Minn.2000).

II.

The principal question before us is whether the judgment entered in the Washington County declaratory judgment proceeding bars Church Mutual from asserting in the Chisago County garnishment proceeding that the Josephs are not covered under the Tabernacle’s excess liability insurance policy. Although the decisions of the Chisago County District Court and the court of appeals turned on the application of collateral estoppel, we conclude that the applicability of res judicata is the more appropriate inquiry. In Howe v. Nelson, 271 Minn. 296, 135 N.W.2d 687 (1965), we recognized that, if an earlier declaratory judgment is to have a preclu-sive effect in a subsequent garnishment proceeding, the application of res judicata is preferable to the application of collateral estoppel. Id. at 301, 135 N.W.2d at 691. We stated:

[A plaintiff should] be estopped by a declaratory judgment adverse to him from raising defenses in a subsequent coercive action against him that were adjudicated or might have been raised in the prior suit. In this situation, the inquiry must be whether the coercive suit is based on the cause of action that was sought to be defeated in the declaratory suit.

Id. at 303,135 N.W.2d at 692.

Res judicata operates as an absolute bar to a subsequent claim when: (1) the earlier claim involved the same claim for relief; (2) the earlier claim involved the same parties or their privies; (3) there was a final judgment on the merits; and (4) the estopped party had a full and fair opportunity to litigate the matter. Wilson, 619 N.W.2d at 198; Dorso Trailer Sales, Inc. v. Am. Body & Trailer, Inc., 482 N.W.2d 771, 774 (Minn.1992). Res judicata applies to all claims actually litigated as well as to all claims that could have been litigated in the earlier proceeding. Wilson, 619 N.W.2d at 198; Care Inst., 612 N.W.2d at 447.

Here, the record reveals that the defense Church Mutual raised in this garnishment proceeding, i.e., denial of coverage to the Josephs because they were not on church business at the time of the accident, is identical to the claim for relief they raised in the declaratory judgment proceeding. Thus, we conclude that the first requirement for the application of res judicata is met.

The record also reveals that the Washington County declaratory judgment proceeding and the Chisago County garnishment proceeding involved the same parties or their privies. In the Washington County declaratory judgment proceeding, the parties were Henry, the Josephs, and Church Mutual. While the state was not a party to the Washington County declaratory judgment proceeding, the state was a party in the underlying tort litigation, having intervened to protect its subrogation interests based on its payment of workers’ compensation benefits to Henry. On that basis, we conclude that the state was in privity with Henry in the Washington County declaratory judgment proceeding. In the Chisago County garnishment proceeding, the state, Henry, the Josephs, and Church Mutual were all parties. Thus, the second requirement for the application of res judicata is met.

With respect to the third requirement, Church Mutual argues that the Washington County declaratory judgment proceeding did not involve a final judgment on the merits. Church Mutual maintains that the court resolved only Henry’s Rule 12 motion to dismiss based on the expiration of the statute of limitations for bringing a declaratory judgment action and did not reach the merits of the coverage issue. The court of appeals agreed.

The record reveals that, in its complaint for declaratory relief, Church Mutual prayed for “judgment against the Defendants, and each of them, declaring that Plaintiffs insurance policy affords no coverage for the claims asserted in the Henry lawsuit.” On February 16, 2000, the Washington County District Court granted the defendants’ motion to dismiss the complaint. The order dismissing the complaint, however, does not appear to be limited, as Church Mutual suggests. Paragraph 2 of the order states that: “Defendants’ motion to dismiss the Complaint for failure to commence the declaratory judgment action within six years of the date of the accident is GRANTED. Judgment shall be entered in favor of Defendant.” Significantly, in paragraph 7, the order also states that: “The Washington County Court Administrator is directed to enter judgment in favor of Defendants on the Complaint * ⅜ *.” We read paragraph 7 to require entry of judgment on the entire complaint, including its prayer for relief. Therefore, we conclude that the judgment entered was on the merits.

Our conclusion is reinforced by Rule 41.02(c) of the Minnesota Rules of Civil Procedure. Rule 41.02(c) provides that, unless the court specifies otherwise, a dismissal not provided for in the rule or in Rule 41.01 operates as an adjudication on the merits, unless certain exceptions, which are not applicable to this case, apply. Minn. R. Civ. P. 41.02(c). Here, the dismissal of Church Mutual’s declaratory judgment action was a dismissal not provided for by this rule or Rule 41.01, and the district court’s order did not specify that the dismissal operated as anything other than an adjudication on the merits. Therefore, when judgment was entered and the time for appeal from that judgment expired, the judgment became a final judgment on the merits, thereby satisfying the third requirement for the application of res judicata.

Finally, we conclude that Church Mutual had a full and fair opportunity to litigate the coverage defense in the Washington County declaratory judgment proceeding. The question of whether a party had a full and fair opportunity to litigate a matter generally focuses on “whether there were significant procedural limitations in the prior proceeding, whether the party had the incentive to litigate fully the issue, or whether effective litigation was limited by the nature or relationship of the parties.” Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1521 (10th Cir.1990) (citing 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4423 (1981 & Supp.2000)). The record here indicates that there were no significant procedural limitations placed on Church Mutual in the Washington County declaratory judgment proceeding, that Church Mutual had every incentive to fully litigate the matter, and effective litigation was not limited by the nature or relationship of the parties.

Moreover, a litigant's disagreement with a legal ruling does not necessarily mean that the court denied the litigant a full and fair opportunity to litigate a matter. Id. Here, if Church Mutual believed that the decision of the Washington County District Court was erroneous, it had both the right and the opportunity to appeal. For reasons known only to Church Mutual, it chose not to appeal. Had it successfully appealed, Church Mutual would not be in the position it finds itself in now. In H.P. Droher & Sons v. Toushin, 250 Minn. 490, 85 N.W.2d 273 (1957), we stated, “Ordinarily, when a litigant is willing to gamble on the outcome of a lawsuit and sit silent when he has an opportunity to present evidence, he should be bound by the result, whatever it may be.” Id. at 502, 85 N.W.2d at 282. Although our statement in H.P. Droher & Sons concerned a plaintiffs failure to introduce evidence during trial, the same may be said when a litigant sits silent on the opportunity to appeal. Thus, we conclude that the fourth requirement for the application of res judicata has been met.

Having concluded that the facts of this case satisfy the four requirements for the application of res judicata, we hold that the resolution of the Washington County declaratory judgment proceeding bars Church Mutual from asserting in the Chis-ago County garnishment proceeding that the Josephs are not entitled to coverage under the policy it issued to the Tabernacle. Our holding here makes it unnecessary for us to reach issues relating to waiver and estoppel and the doctrine of the law of the case.

Reversed and summary judgment reinstated.

      . Our use of the term "res judicata” in this opinion is consistent with the recent practice of this court in that it specifically refers to claim preclusion. Wilson v. Comm’r of Revenue, 619 N.W.2d 194, 198 (Minn.2000); Care Inst., Inc.-Roseville v. County of Ramsey, 612 N.W.2d 443, 447 (Minn.2000); Dorso Trailer Sales, Inc. v. Am. Body & Trailer, Inc., 482 N.W.2d 771, 773-74 (Minn.1992). In the past, however, we have referred to res judica-ta as sm umbrella doctrine encompassing the principles of: (1) claim preclusion, also known as estoppel by judgment or "merger or bar”; and (2) issue preclusion, also known as collateral estoppel or estoppel by verdict. Johnson v. Consol. Freightways, Inc., 420 N.W.2d 608, 613 (Minn.1988); Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 703 (Minn.1982); Hauser v. Medley, 263 N.W.2d 803, 806 (Minn.1978); Bernstein v. Levitz, 223 Minn. 46, 48, 25 N.W.2d 289, 290 (1946); Wolfson v. N. States Mgmt. Co., 221 Minn. 474, 477, 22 N.W.2d 545, 547 (1946); Gustafson v. Gustafson, 178 Minn. 1, 3, 226 N.W. 412, 413 (1929).

        . To determine whether two parties are in privity, we examine carefully the circumstances of the case before us. Margo-Kraft Distribs., Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47-48 (1972); McMenomy v. Ryden, 276 Minn. 55, 59, 148 N.W.2d 804, 807 (1967) (citations omitted). In general, privity involves a person so identified in interest with another that he represents the same legal right. McMenomy, 276 Minn. at 58-59, 148 N.W.2d at 807 (citing 30A Am.Jur., Judgments § 399 (1958)); see also Margo-Kraft Distribs., Inc., 294 Minn. at 278, 200 N.W.2d at 48 (recognizing that those in privity may include those who control an action although not parties to it, those whose interests are represented by a party to the action, and successors in interest to those having derivative claims) (citations omitted).

      . Rule 41.02 (c) provides:
      Unless the court specifies otherwise in its order, a dismissal pursuant to this rule and any dismissal not provided for in this rule or in Rule 41.01, other than a dismissal for lack of jurisdiction, for forum non conviens, or for failure to join a party indispensable pursuant to Rule 19, operates as an adjudication upon the merits.
      Minn. R. Civ. P. 41.02(c).

      . Whether the decision in the Washington County declaratory judgment proceeding was erroneous has no bearing on our determination here. We have held that, in considering whether a judgment may preclude litigation of the same claim in a subsequent proceeding, it is immaterial whether a judgment on the merits unappealed from was right or wrong. Hoofnagle v. Alden, 170 Minn. 414, 419, 213 N.W. 53, 55 (1927); see also Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370-71, 147 N.W.2d 100, 103 (1966) (holding that an appealable order is still final after the time for appeal has expired even though the decision of the trial court may have been wrong); Ossman v. Diana Corp., 825 F.Supp. 870, 876 (D.Minn.1993) (recognizing that, generally, a court does not consider the propriety of another court's ruling in determining whether it should give preclusive effect to that court’s order). Having no need to determine whether the Washington County District Court erred, we decline to do so.


author: R.A. RANDALL, Judge.

text:
    STATE of Minnesota, Respondent, v. Kua VANG, Appellant.
    No. C4-01-288.
    Court of Appeals of Minnesota.
    Nov. 20, 2001.

      Mike Hatch, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Richard J. Dusterhoft, Assistant County Attorney, St. Paul, MN, for respondent.
    John H. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HANSON, Presiding Judge, RANDALL, Judge, and STONEBURNER, Judge.
   OPINION

R.A. RANDALL, Judge.

This is an appeal from a conviction of third-degree eontrolled-substanee offense. Appellant argues that a police officer, along with a probation officer assigned to supervise appellant’s son, unlawfully entered appellant’s home without a warrant to perform a home visit of appellant’s son. Appellant argues that the district court erred in finding consent was given to enter the home, and that if consent was given or implied, the consent did not authorize unannounced entry into appellant’s bedroom and therefore the evidence obtained from that search is fruit of the poisoned tree and should be suppressed. We affirm.

FACTS

Appellant Kua Vang was arrested in his home for possession of opium after a probation officer visiting appellant’s son, D.Y., approached appellant’s bedroom and, through an open door, observed Vang smoking opium.

Appellant’s son, D.V., was put on probation for assault in February 1999. The district court ordered that his matter be referred to the Ramsey County Community Corrections Department for probation supervision and that he was “to follow all the recommendations of probation.” The district court gave the Ramsey County Community Human Services Department temporary legal custody of D.V. In August 1999, the Corrections Department placed D.V. on enhanced probation, which occurs when the probationer is a gang member and has a drug charge or violent offense. D.V. and his mother signed the conditions of probation form for enhanced probation, which involved more frequent visits from a probation officer who is often accompanied by a police officer. D.V.’s probation officer is Long Khang. Khang visited the Vang residence and D.V.’s school approximately 30 to 40 times over a four-month period.

On January 6, 2000, Khang and police officer Ghnia Kong went to the Vang home to speak with D.V. about a fight involving D.V. that occurred in early December 1999. Khang testified at the omnibus hearing that he and Kong knocked on the duplex’s main entry, and D.V. answered the door. D.V. opened the exterior door and then walked into the apartment. Khang and Kong followed D.V. through the door to the apartment, which lead into the living room. Khang spoke with D.V. about the December incident, and D.V. admitted to the assault. Khang determined that this was a violation of D.V.’s probation and decided to take him into custody for 24-hour detention.

Khang testified that he heard D.V.’s parents talking in the other room, so he went into the kitchen through the open doorway to talk to them, and while standing in front of appellant’s open bedroom door, he observed appellant smoking opium. He asked D.V.’s parents to come into the living room so he could tell them he was taking D.V. to detention. When Khang returned to the living room, he told Kong that appellant was smoking opium in the bedroom. Appellant immediately came out to the living room and said to Kong, without any prompting, that he was smoking opium because he had a stomachache. He turned around and said, “I show you,” and brought Kong back to his bedroom where Kong saw the drug paraphernalia. Appellant then handed Kong a metal box containing a black solid substance and brown and black paste, saying, “This is what I was smoking.” Kong arrested appellant.

The black solid was analyzed and found to be a mixture containing codeine, morphine, acetylcodeine, and monoacetylmor-phine, weighing 24.3 grams. The brown and black paste also contained morphine and codeine. Appellant was charged with third-degree violation of controlled-substance law, possession of more than 10 grams of a mixture containing morphine and codeine under Minn.Stat. § 152.023, subd. 2(2) (1998).

Appellant challenged the admissibility of the evidence against him at a suppression hearing on the ground that the evidence was obtained through a warrantless search of appellant’s home. The district court ruled that the evidence was admissible and denied appellant’s motion to suppress. Appellant waived his right to a jury trial and submitted the case to the court on stipulated facts, pursuant to State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980). The district court found appellant guilty of the charged crime. Appellant now challenges his conviction.

ISSUE

I. Did the district court err in finding that appellant’s son gave consent for the probation officer and police officer to enter appellant’s home?

II. Did the probation officer’s observations of appellant in his bedroom violate appellant’s Fourth Amendment rights?

ANALYSIS

Appellant contends that Khang and Kong entered the Vang residence and appellant’s bedroom without a warrant, consent, or any other lawful reason. He claims that the observations and evidence collected regarding appellant’s charge for possession of a controlled substance should therefore be suppressed.

When reviewing pretrial suppression orders, the appellate court independently reviews the facts and determines, as a matter of law, whether the district court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

“Under the fourth amendment, warrantless searches and seizures are per se unreasonable unless they fall under an established exception.” State v. Hummel, 488 N.W.2d 68, 72 (Minn.1992) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)). Consent and exigent circumstances are two of the recognized exceptions. Id. If no exception applies, then the fruits of the warrantless search must be suppressed. Id. (citing Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963)).

I. Consent to Enter Appellant’s Home

“When a search is conducted pursuant to consent however, neither probable cause nor a warrant is required.” State v. Pilot, 595 N.W.2d 511, 519 (Minn.1999) (citation omitted). The defendant need not be the one who consents to the search; rather, consent “may be given by another party who possesses common authority over or other sufficient relationship to the premises.” Id. (alteration in original) (quotations omitted). Voluntariness of consent is determined by the totality of the circumstances. See Schneckloth v. Bustamante, 412 U.S. 218, 224-27, 93 S.Ct. 2041, 2046-48, 36 L.Ed.2d 854 (1973) (analyzing determination of voluntary consent); State v. Howard, 373 N.W.2d 596, 599 (Minn.1985) (stating district court should determine validity of consent based on all relevant circumstances).

Here, Khang visited the Vang residence on numerous occasions with a police officer. Past experience showed them that when D.V. or his parents answered the door, they were invited in either verbally or nonverbally. On January 6, 2000, D.V. answered the door, turned around and went into his apartment. Such conduct reasonably implies that Khang and Kong were supposed to follow D.V. into the apartment. In the past, Khang was never asked to wait outside or told that he was not welcome. This time was no different. D.V. opened the door for them, led them into the apartment and did not protest the visit in any way. The record supports the district court’s conclusion that Khang and Kong received consent to enter appellant’s residence.

II. Observations of Appellant’s Bedroom

Once Khang spoke with D.V. and determined that he violated his probation and that D.V. should be taken into custody for 24 hours, Khang needed to inform D.V.’s parents that he was taking D.V. into immediate custody. See Minn.Stat. § 260B.176, subd. 1 (Supp.2000) (stating parents shall be notified as soon as possible when child is taken into custody under section 260B.175 (2000)). Khang heard D.V.’s parents in the other room near the kitchen, walked through the open entrance to the kitchen, and toward the room in which he heard D.V.’s parents. These were reasonable actions by Khang. The bedroom door was wide open, and Khang observed D.V.’s parents sitting on the bed and appellant smoking opium. Khang testified that he had not smelled the opium until he was looking through the doorway into the bedroom. Khang observed the illegal activity while he was attempting to comply with the statute. Nothing was obstructing his view from the kitchen; the door to the bedroom was not shut.

The Minnesota Supreme Court has stated that

evidence seized without a valid search warrant is nevertheless admissible if it is in plain view, there was a prior justification for an intrusion, the discovery was inadvertent, and there was probable cause to believe that the items seized were immediately apparent evidence of crime.

State v. Bradfcrrd, 618 N.W.2d 782, 795 (Minn.2000) (quotation omitted).

Here, Khang had justification for the entry into the home and to be in a position to see through the open door of appellant’s bedroom. D.V. consented to Khang and Kong entering the home. Khang was at appellant’s home to check on his probationer and discuss a possible probation violation and then needed to inform D.V.’s parents that he was being taken into immediate custody after he determined that D.V. violated his enhanced probation. Because the county was given temporary legal custody of D.V., the county had the requisite authority to impose “enhanced conditions of probation.” Further, what Khang discovered was inadvertent as he walked through an open doorway into the kitchen and toward the open bedroom door to tell appellant and D.V.’s mother that he was taking D.V. into custody. Khang did not intentionally seek out the illegal activity, the evidence seized from appellant was admittedly illegal drugs, and appellant freely told Kong that it was opium.

We conclude that Khang’s observations of illegal activity were not a violation of appellant’s Fourth Amendment rights. Appellant was not coerced by Kong to admit and to show him that he was smoking opium. We affirm the district court’s decision that the evidence seized was not the fruit of an illegal search and is, therefore, admissible.

DECISION

The district court did not err in finding appellant’s son gave consent for his probation officer and police officer to enter appellant’s residence. And because the probation officer’s presence in the kitchen was justified, he did not violate the appellant’s Fourth Amendment rights when he observed appellant through appellant’s open bedroom door.

Affirmed.

      . A police officer accompanying the probation officer is necessary for heightened safety of the probation officer when the probationer committed a violent crime as a gang member.

      . Kong's testimony differed in that he said they entered through the side entry into the kitchen. In either case, the analysis of this case does not change, as explained in footnote 3.

      . Based on Kong's testimony regarding entry into the kitchen, Khang would still have made the same observations when he approached the bedroom door. Standing near the outside door to the kitchen would not have allowed view into the bedroom because the direction of the bedroom door opening blocked the view from that angle. However, Kong did not dispute whether Khang could have seen the illegal activity in plain view when Khang approached the open bedroom door.

      . We note that it would have been better for the county to go to the district court to obtain validation for the enhanced probation. That would have solidified the basis for a violation of probation. Probation conditions generally are set by the court. State v. Henderson, 527 N.W.2d 827, 829 (Minn.1995). While the county did have temporary custody of D.V., a serious change in the conditions of probation (i.e., enhanced probation) should have been brought to the district court's attention to clarify the county’s rights and scope of enforcement.


author: ROBERT H. SCHUMACHER, Judge.

text:
    Jeannie STEAD-BOWERS, Appellant, v. Sandra LANGLEY, et al., Respondents, Mark Elias, Susan Morris, Respondents, John Does 1-10, Defendants.
    No. C6-01-423.
    Court of Appeals of Minnesota.
    Dec. 4, 2001.

      Jeffrey M. Ellis, Jeffrey M. Ellis, PLLC, Minneapolis, for appellant.
    Pierre N. Regnier, Joseph E. Flynn, Jardine, Logan & O’Brien, P.L.L.P., St. Paul; and Mark W. Kelly, Kelly Law Offices, Excelsior, for respondents Sandra Langley and City of Greenwood.
    Paul D. Reuvers, Iverson Reuvers, LLC, Bloomington, for respondent Mark Elias.
    Thomas S. McEaehron, James A. Jar-dine, Votel, Anderson & McEaehron, St. Paul, for respondent Susan Morris.
    Considered and decided by SCHUMACHER, Presiding Judge, KLAPHAKE, Judge, and PETERSON, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Jeannie Stead-Bowers brought a claim for malicious prosecution against respondents Sandra Langley, Mark Elias, Susan Morris, and the City of Greenwood, as well as John Does 1-10. She subsequently sought to amend her complaint to state claims for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress.

Stead-Bowers challenges the district court’s dismissal of her malicious prosecution action and the denial of her motion to amend. She contends that malicious prosecution extends to actions where there was only a criminal investigation. She also contends that she properly stated claims for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. We affirm.

FACTS

Stead-Bowers is a member of the Greenwood City Council. As a council member, she was appointed “dock master” and made responsible for the maintenance and repair of the city’s public docks. She generally pays for supplies relevant to these responsibilities herself. The city council also authorized her to hire Aaron Maenke as an assistant.

In November 1998, she was re-elected to the city council. During this time, Stead-Bowers claims that Langley, Elias, Morris, and the city entered into a scheme to remove her from office. Stead-Bowers alleges that during the 1998 election, Langley approached her several times and stated that she should seek reimbursement from the city for expenses she incurred related to her dock duties. She subsequently submitted expense receipts for reimbursement to the city council.

Thereafter, she claims Langley, Elias, Morris, and the city caused a document to be prepared containing Stead-Bowers’s forged signature in which Stead-Bowers purported to declare, subject to penalties of perjury, that her reimbursement request was just and correct. She further claims that Langley, Elias, Morris, and the city then used the forged document to induce Maenke to send a letter signed by himself and Morris to the chief of police and the city council, stating that Stead-Bowers overcharged the city when filing for reimbursement. The Hennepin County Sheriffs Department conducted a criminal investigation of the claim and found it to be lacking in factual support. The investigation was consequently closed.

Stead-Bowers thereafter brought an action, alleging malicious prosecution against Langley, Elias, Morris, the city, and John Does 1-10. Langley, Elias, Morris, and the city then brought a Rule 12 motion to dismiss for failure to state a claim. In response, Stead-Bowers filed a motion to amend her complaint to add claims for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. The district court granted the motion to dismiss and denied Stead-Bowers’s motion to amend.

ISSUES

1. Did the district court err by holding that Stead-Bowers failed to state a claim for malicious prosecution?

2. Did the district court abuse its discretion by denying Stead-Bowers leave to amend her complaint?

ANALYSIS

1. Stead-Bowers contends that the district court erred in granting Langley, Elias, Morris, and the city’s Rule 12 motion to dismiss for failure to state a claim upon which relief can be granted. The district court held that in order to maintain a claim for malicious prosecution, Stead-Bowers must show that she was charged, indicted, or arrested. Stead-Bowers advocates that such a showing is not necessary.

When reviewing a dismissal for failure to state a claim upon which relief can be granted, an appellate court must only determine whether the complaint sets forth a legally sufficient claim for relief. Geldert v. American Nat’l Bank, 506 N.W.2d 22, 25 (Minn.App.1993), review denied (Minn. Nov. 16, 1993). It is immaterial whether the plaintiff can prove the facts alleged in the complaint. Juster Steel v. Carlson Cos., 366 N.W.2d 616, 619 (Minn.App.1985). A complaint should only be dismissed for failure to state a claim if it appears to a certainty that no facts consistent with the pleading exist that support granting the relief demanded. Brakke v. Hilgers, 374 N.W.2d 553, 555 (Minn.App.1985). The facts set forth in the complaint must be accepted as true, and the plaintiff is entitled to have the benefit of all favorable and reasonable inferences. Pullar v. Independent Sch. Dist., 582 N.W.2d 273, 275-76 (Minn.App.1998). The appellate court reviews de novo the claim’s legal sufficiency. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997).

This court has previously stated that the elements of malicious prosecution are

(1) the suit must be brought without probable cause and with no reasonable ground on which to base a belief that the plaintiff would prevail on the merits; (2) the suit must be instituted and prosecuted with malicious intent; and (3) the suit must ultimately terminate in favor of the defendant.

Jordan v. Lamb, 392 N.W.2d 607, 609 (Minn.App.1986) (citing First Nat’l Bank v. Marquette Nat’l Bank, 482 F.Supp. 514, 522-23 (D.Minn.1979)), review denied (Minn. Oct. 29, 1986). The question of whether the initiation of a criminal investigation alone is sufficient to constitute the basis for a malicious prosecution claim, however, is an issue of first impression in Minnesota. The Minnesota Supreme Court has stated that an action for malicious prosecution

has always been carefully circumscribed, and not favored in law, the reason being that “public policy favors * ⅜ * prosecutions and affords such protection of another in good faith and on reasonable grounds as is essential to public justice * * ⅜.” In prior malicious prosecution actions we reiterated, in dicta, our longstanding public policy of not discouraging criminal investigations.
The public policy limiting malicious prosecution actions applies with especial force to actions which would make witnesses or victims liable for their negligence in assisting criminal investigations or prosecutions. Persons having knowledge of crimes, as a fundamental duty of citizenship, are encouraged, if not obligated, to report and assist in investigation and prosecution of these crimes. We take judicial notice of the fact that many persons are regrettably reluctant to “become involved” in the reporting and investigation of crimes. A threat of an action — which does not include an element of maliciousness — would serve to further discourage citizen participation in criminal investigations and prosecutions.

Lundberg v. Scoggins, 335 N.W.2d 235, 236 (Minn.1983) (quoting 54 C.J.S. Malicious Prosecution § 3 (1948)) (citing Allen v. Osco Drug, Inc., 265 N.W.2d 639, 642 (Minn.1978)); see also Shafer v. Hertzig, 92 Minn. 171, 175, 99 N.W. 796, 798 (1904) (“It is not the policy of the law to discourage investigation into the sources of crime, or to impose such difficulties in the way of judicial proceedings therefor as to constitute barriers to the administration of justice and discourage the institution of necessary criminal prosecutions”); Smith v. Munch, 65 Minn. 256, 259-260, 68 N.W. 19, 20-21 (1896). We find this policy consideration persuasive.

We also find commentary on the issue to be persuasive. The Second Restatement of Torts states that the triggering conduct for the tort of malicious prosecution is the initiation of a criminal proceeding. Restatement (Second) of Torts § 653 (1977). Criminal proceedings are described as follows:

(1) The term “criminal proceedings” includes any proceeding in which a government seeks to prosecute a person for an offense and to impose upon him a penalty of a criminal character.
(2) Criminal proceedings are instituted when
(a) process is issued for the purpose of bringing the accused of a criminal offense before an official or tribunal whose function is to determine whether he is guilty of the offense charged, or whether he shall be held for later determination of his guilt or innocence; or
(b) without the issuance of process an indictment is returned or an information filed against him; or
(c) he is lawfully arrested on a criminal charge.

Restatement (Second) of Torts § 654 (1977). Additionally, the comments state that

formal action must be taken by an official or a tribunal before there can be that institution of criminal proceedings which the plaintiff must prove in order to make his accuser liable * * ⅝. The mere fact that a person has submitted to a magistrate an affidavit for the purpose of securing a warrant for another’s arrest or a summons for him to appear at a hearing, does not justify a finding that he has initiated criminal proceedings against the other. The proceedings are not instituted unless and until the warrant or summons is issued.

Restatement (Second) of Torts § 654 cmt. d (1977).

Keeton also comments on what constitutes the initiation of a criminal proceeding:

The proceeding must, however, have been commenced. It is not enough that a mere complaint has been made to the proper authorities for the purpose of setting prosecution in motion, where no official action ever has been taken, or that evidence has been presented to a grand jury which refuses to indict. On the other hand, it usually is held to be sufficient that a warrant has been issued for the plaintiffs arrest, although it never has been served. The initial step is of course a matter of the procedure of the particular jurisdiction; and where prosecution is begun by an indictment, or an information filed by the prosecuting attorney, it seems clear that this should be enough, since it constitutes official action and sets the law in motion.

W. Page Keeton et al., Prosser and Keeton on Torts 871-72 (5th ed.1984) (citations omitted); see also Fowler V. Harper & Fleming, James, Jr., The Law of Torts § 4.3 (3d ed. 1996) (“[0]ne who makes a complaint informally or under oath cannot be liable for malicious prosecution if no action is taken by the officers of the law pursuant thereto. On the other hand, the proceeding is instituted the minute some official act has been taken to apprehend the other”).

In addition to the strong policy consideration of favoring criminal investigations

and the authoritative commentary, many other jurisdictions require the initiation of an action more formal than a criminal investigation in order for a malicious prosecution action to be triggered. See Stromberg v. Costello, 456 F.Supp. 848, 850 (D.Mass.1978) (stating that complaint does not state a claim for malicious prosecution, even though it alleged defendant twice applied for criminal complaints against plaintiff, when it did not state any proceeding actually resulted); Carson v. Lewis, 35 F.Supp.2d 250, 262-63 (E.D.N.Y.1999) (arrest that occurred prior to arrestee’s arraignment and without warrant, and thus, was not pursuant to legal process, could not serve as predicate deprivation of liberty for purposes of malicious prosecution claim under New York law); Boschette v. Buck, 916 F.Supp. 91, 96 (D.Puerto Rico 1996) (person who allegedly stole videotape was not subjected to malicious prosecution even though owner filed complaint with police where district attorney who reviewed complaint declined to prosecute); Boschette v. Buck, 914 F.Supp. 769, 774-75 (D.Puerto Rico 1995) (stating that speaking to the police is insufficient to establish claim for malicious prosecution when plaintiff was never criminally prosecuted); Walker v. Bishop, 169 Ga.App. 236, 312 S.E.2d 349, 352 (1983) (striking employee could not maintain malicious prosecution claim arising out of his arrest where there was no evidence that criminal charges were brought before committing court, grand jury, or other tribunal); Yoch v. City of Cedar Rapids, 353 N.W.2d 95, 101 (Iowa Ct.App.1984) (no cause of action arises for malicious prosecution unless there has been either arrest, seizure of property, or special injury sustained that would not necessarily result in all suits prosecuted to recover for like causes of action); Arena v. K Mart Corp., 439 So.2d 528, 531 (La.Ct.App.1983) (no cause of action for malicious prosecution where department store neither had consumer arrested nor filed charges against him, but merely took precaution of having police come to scene); Cuddy v. Kueker, 7 Mass.App.Ct. 896, 887 N.E.2d 213, 214 (1979) (stating that no prosecution was ever instituted against plaintiff because no criminal complaint was ever signed by defendant); Bassinov v. Finkle, 261 N.C. 109, 184 S.E.2d 130, 131 (1964) (action for malicious prosecution must be predicated on valid warrant); Long v. Lewis, 318 N.J.Super. 449, 723 A.2d 1238, 1240 (1999) (action for malicious prosecution, where prior criminal action is not involved, requires proof defendants instituted proceeding that is adjudicatory in nature); Covert v. Westchester County, 153 Misc.2d 733, 582 N.Y.S.2d 937, 938 (N.Y.Sup.Ct.1992) (prior judicial proceeding is required for malicious prosecution and can be as formal as indictment by grand jury or just evaluation by magistrate of affidavit supporting application for arrest warrant); Hitchcock v. Cullerton, 82 N.C.App. 296, 346 S.E.2d 215, 217 (1986) (action for malicious prosecution must be based on valid process, and warrant must allege all elements of crime charged); Hawley v. Ritley, 35 Ohio St.3d 157, 519 N.E.2d 390, 394 (1988) (record did not show arrest of person or seizure of property necessary for malicious prosecution action); Miessner v. All Dakota Ins. Assocs., Inc., 515 N.W.2d 198, 201 (S.D.1994) (no basis for malicious prosecution where, although arrest warrant had been requested, criminal investigation was terminated before warrant had been issued).

We decline to extend the scope of the malicious prosecution tort as advocated by Stead-Bowers. Based on the above policy considerations and sources of law, we find that a distinct line can be drawn between what actions trigger the malicious prosecution tort and what actions do not. We conclude that some formal legal action must be instituted. Actions such as a criminal charge or indictment would meet this requirement. The initiation of a criminal investigation alone without further proceedings falls short. The district court did not err in dismissing Stead-Bowers’s claim.

2. Stead-Bowers also contends that the district court erred in denying her motion for leave to amend her complaint to state claims for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. “The decision to allow a party to amend its complaint after responsive pleading has been made lies within the sound discretion of the [district] court.” Wessin v. Archives Corp., 592 N.W.2d 460, 468 (Minn.1999) (citation omitted). Its ruling “will not be reversed absent a clear abuse of discretion.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). The district court should liberally grant motions to amend when justice requires and doing so will not result in prejudice to the adverse party. Id.; Minn. R. Civ. P. 15.01.

A court, however, may properly deny such amendments “when the additional alleged claim cannot be maintained.” Hunt v. Univ. of Minn., 465 N.W.2d 88, 95 (Minn.App.1991); see also Bib Audio-Video Prods. v. Herold Mktg. Assocs., 517 N.W.2d 68, 73 (Minn.App.1994) (citation omitted) (“denial of a motion to amend is proper when the movant fails to establish evidence to support the movant’s claims”).

To establish a defamation claim, plaintiff must show (1) a statement; (2) communicated by the defendant to someone other than the plaintiff; (3) that is false; and (4) that harmed the plaintiffs reputation. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980). Plaintiff must satisfy all four elements to succeed in a defamation action. Id. A plaintiff who is a public figure must show that defendant’s statements were defamatory and demonstrate, by clear and convincing evidence, that the defendant made the statements with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964).

Stead-Bowers does not present any evidence showing how the statements harmed her reputation. Additionally, Stead-Bowers admitted that she mistakenly submitted at least one check for reimbursement that was for personal use, which indicates at least some truth to the allegations in Maenke’s letter. See The Oaks Gallery v. Lee Enterprises, Inc., 613 N.W.2d 800, 803 (Minn.App.2000) (no defamation where “gist” or “sting” is true), review denied (Minn. Sept. 13, 2000).

Further, because Stead-Bowers, at the time of the events at issue was either running for public office or held public office, she is considered a public figure. Where a plaintiff in a defamation action is a public figure, actual malice must be shown in addition to the other defamation elements. Sullivan, 376 U.S. at 279-80, 84 S.Ct. at 726, 11 L.Ed.2d 686. A person acts with “actual malice” when he or she publishes a statement knowing that it is false or with reckless disregard for whether it was false or not. Id. Although the concept of “reckless disregard” cannot be fully encompassed in one infallible definition, it is clear that the statements must have been published with “an awareness of its probable falsity,” Connelly v. Northwest Publications, Inc., 448 N.W.2d 901, 903 (Minn.App.1989), review denied (Minn. Feb. 21, 1990), or with serious doubts as to their truth. Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn.1977). “The burden of proving actual malice is upon the one alleging defamatory statements and it must be proved with convincing clarity.” Id. at 566 (citation omitted).

Here, the record indicates that the statements contained in the letter sent to the city by Maenke and Morris were made not with awareness of probable falsity, but with the belief that they were likely true. This is supported by the fact that Stead Bowers wrongfully submitted at least one check for reimbursement. Additionally, there is no evidence in the record connecting any statements contained in the allegedly forged document to Langely, Elias, Morris, or the city. Stead-Bowers has failed to present evidence of actual malice.

Moreover, we note that Stead-Bowers failed to specifically plead the alleged defamatory statements. See American Book Co. v. Kingdom Publishing Co., 71 Minn. 363, 366, 73 N.W. 1089, 1090 (1898) (plaintiff in libel action may not merely plead effect or tenor or import of alleged defamatory language, but must plead specific alleged defamatory words). The district court did not abuse its discretion in denying Stead-Bowers leave to amend her complaint to include a claim for defamation.

To establish a claim for intentional infliction of emotional distress, a plaintiff must show: (1) that the eom-plained-of conduct was extreme and outrageous; (2) the conduct was intentional and reckless; (3) it caused the plaintiff emotional distress; and (4) the emotional distress was severe. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438-39 (Minn.1983). The operation of this tort is limited to cases involving particularly egregious facts. Id. at 439. The conduct “must be extreme and outrageous, so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.” Haagenson v. Nat’l Farmers Union Prop. & Cas. Co., 277 N.W.2d 648, 652-53 n. 3 (Minn.1979) (citation omitted). The emotional distress must be “so severe that no reasonable man could be expected to endure it.” Hubbard, 330 N.W.2d at 439 (quoting Restatement (Second) of Torts § 46 cmt j (1965)).

Stead-Bowers argues that the creation of a document with her forged signature, thereby “setting her up” for criminal prosecution, was extreme and outrageous conduct. While such conduct, if true, may be extreme and outrageous, there is no showing by Stead-Bowers that the conduct caused her to suffer severe emotional distress. The district court did not abuse its discretion by denying Stead-Bowers leave to amend her complaint to claim intentional infliction of emotional distress.

To establish a claim for negligent infliction of emotional distress, a plaintiff must ordinarily show she (1) was within a zone of danger of physical impact; (2) reasonably feared for her own safety; and (3) suffered severe emotional distress with attendant physical manifestations. K.A.C. v. Benson, 527 N.W.2d 553, 557 (Minn.1995). If a plaintiff cannot show a direct invasion of her rights, such as defamation, malicious prosecution, or other willful, wanton, or malicious conduct, she must demonstrate that she is within a “zone of danger.” Schibursky v. IBM, 820 F.Supp. 1169, 1184 (D.Minn.1993). To be within the “zone of danger,” the plaintiff must show that the defendants “placed her within a zone of danger of physical impact, prompting reasonable safety concerns and causing severe emotional distress and resultant physical injury.” Id. (citing Lee v. Metro. Airport Comm’n, 428 N.W.2d 815, 823 (Minn.App.1988)).

Because we find that Stead-Bowers has not stated a claim for malicious prosecution or defamation, she must show she was within the zone of danger. There is no allegation that she was placed in physical danger. Even if Stead-Bowers had stated a claim for malicious prosecution and/or defamation, she has not presented any evidence suggesting that she suffered severe emotional distress resulting in physical injury. The district court did not abuse its discretion by denying Stead-Bowers leave to amend her complaint to state a claim for negligent infliction of emotional distress.

DECISION

There must be the initiation of a formal criminal proceeding such as a charge or indictment in order to maintain a tort action. The district court did not err by holding that Stead Bowers faded to state a claim for malicious prosecution. The district court did not abuse its discretion by denying Stead Bowers leave to amend her complaint.

Affirmed.