text:
    In the Matter of the EXPULSION OF E.J.W. FROM INDEPENDENT SCHOOL DISTRICT NO. 500.
    No. C2-01-273.
    Court of Appeals of Minnesota.
    Aug. 28, 2001.

      Steven T. Rizzi, Jr., Erin E. Lindhart, Alderson, Ondov, Leonard, Sween & Rizzi, P.A., Austin, MN, (for relator ISD # 500).
    Thomas C. Baudler, Baudler, Baudler, Maus & Blahnik, Austin, MN, (for respondent E.J.W.).
    Mike Hatch, Attorney General, Martha J. Casserly, Assistant Attorney General, St. Paul, MN, (for respondent Department of Children, Families and Learning).
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, RANDALL, Judge, and SCHUMACHER, Judge.
   OPINION

RANDALL, Judge

The school district expelled a student for his alleged involvement in a bomb threat. The student appealed, and the Minnesota Department of Children, Families & Learning (DCFL) found that he was denied constitutional and statutory rights. This certiorari appeal by the school district followed. The school district argues that the Pupil Fair Dismissal Act only required it to provide the names of witnesses actually called during the expulsion hearing. It also argues that the Data Practices Act requires law-enforcement agencies to restrict public access to investigative data and that when the school district receives a law-enforcement report, the identity of all juvenile witnesses becomes private educational data, which may not be disclosed except under specified circumstances. The school district argues that withholding the names of the non-testifying student witnesses and not providing an opportunity for E.J.W. to confront and cross-examine them did not violate E.J.W.’s due-process rights. Finally, the school district claims that it presented substantial evidence at the hearing to support the student’s expulsion. We affirm the Department of Children, Families & Learning.

FACTS

On October 16, 2000, a threat was written on the boys’ restroom mirror at South-land High School in Adams, Minnesota: “bomb in school to go off at 12:30.” The police were called, the building was evacuated, and the students were dismissed for the day. No bomb was found. Police Chief Gordon Briggs and Detective Mark May questioned several students about the bomb threat, including E.J.W., who was then a ninth-grade student.

The first boy, who admitted that he was involved in planning the threat, told police officers that he and E.J.W. tried to talk another boy (“the second boy”) into writing the threat, and that E .J.W. offered a pack of cigarettes to the second boy if he would agree to write the threat. The first boy did not testify at the hearing.

The second boy, who eventually admitted to writing the threat on the restroom mirror, told police officers the names of the boys who induced him to write the threat. He did not say that E.J.W. bribed him to write the threat. He did say, however, that E.J.W. was one of the people in the hallway guarding the restroom door while he was inside writing the message on the mirror. The second boy did not testify at the hearing.

A third boy, who was not involved in the bomb threat, first told the police that he overheard E.J.W. and two other students in the gym talking about writing the bomb threat. The boy, however, said later in the conversation with the police that the boys became quiet when he approached them in the gym and that he “later found out what was going on,” as stated in the police report. The third boy also did not testify at the hearing. All three of these boys’ statements were admitted at the hearing as hearsay testimony through the police officers.

E.J.W. testified at the hearing that the boys next to him in the locker room were trying to induce the second boy to write the bomb threat. E.J.W. denied encouraging the second boy to participate in any way in the threat. He also denied being a guard at the restroom door. E.J.W. said that he did not do anything to discourage the conversation in the locker room or in the hallway. In fact, another boy, D.V., testified at the hearing that E.J.W. was not standing near the restroom door during the incident, but rather another boy was guarding the door. He testified that E.J.W. was on the other side of the hallway from the restroom and that E.J.W. walked over to the other side of the hallway to get a drink from the fountain and then returned across the hall.

Several students and a teacher heard advance rumors of a proposed bomb threat and did not notify the school principal before the incident took place. The school principal testified that no students would be disciplined for advance knowledge of the threat, only those who actively participated in it. The school district concluded that E.J.W. was involved in the threat and sought to expel him for the remainder of the school year.

Relator Independent School District No. 500 (the district) provided E.J.W. with a list of the witnesses who would testify at the hearing (the principal, Chief Briggs, and Detective May) and copies of the police reports with the names of all the other students redacted. Before the hearing, E.J.W. requested in writing an unredacted copy of the police reports from the school district. The district did not comply, claiming that the information was “confidential and/or private student data.” At the beginning of the hearing, testimony generically referred to the student witnesses; no names were used. E.J.W. objected. Following the objection, at the request of the district’s counsel, the names of the student witnesses were revealed to E.J.W.’s attorney. Then they were redacted from the transcript for the remainder of the hearing. E.J.W. could only cross-examine the principal, Chief Briggs, and Detective May about what the student witnesses had told them. No direct evidence linking E.J.W. with the bomb threat was provided at the hearing.

The hearing officer found that E.J.W. was involved in the threat, but to a lesser degree than were two other students. He recommended that E.J.W. be expelled for the remainder of the fall semester, rather than the full year as the district requested. E.J.W. appealed to the commissioner of the DCFL.

The commissioner found that E.J.W. was denied his statutory and constitutional due-process rights by not being allowed to confront and cross-examine the student witnesses — the only witnesses — to his alleged involvement in the bomb threat. The commissioner held that without testimony from the students, the district lacked a substantial basis to expel E.J.W. The commissioner remanded the case to the district for a new hearing, at which E.J.W. would have an opportunity to confront and cross-examine the student witnesses, or for reinstatement of E.J.W. and expungement of all references of the incident from his record. This appeal follows.

ISSUES

1. Does the Minnesota Government Data Practices Act prevent the school district from disclosing the names of the student witnesses from the expulsion hearing?

2. Did the commissioner err in determining that the school district’s failure to call the student witnesses to the incident violated EJ.W.’s due-process rights?

3. Did the commissioner err in determining that the school district lacked a sufficient basis to expel E.J.W.?

ANALYSIS

I. The Pupil Fair Dismissal Act

The Pupil Fair Dismissal Act, Minn.Stat. §§ 121A.40-.56 (2000) (PFDA), establishes procedures for the suspension, exclusion, or expulsion of public school pupils. The PFDA expressly provides for the appeal of a district’s exclusion or expulsion decision to the commissioner of the DCFL and limited judicial review of that body’s decision under the Administrative Procedure Act. Id. §§ 121A.49-.50.

An administrative agency’s decision may be reversed only if the decision violates a constitutional provision, is outside the statutory authority or jurisdiction of the agency, is based on unlawful procedures, reflects an error of law, is unsupported by substantial evidence, or is arbitrary or capricious. Minn.Stat. § 14.69. The burden of proof is on the party appealing the agency’s decision. Markwardt v. State, Water Res. Bd., 254 N.W.2d 371, 374 (Minn.1977).

II. Disclosure of Students’ Names

The district argues that the names of the students who witnessed the incident and spoke to the police were investigative data for the law-enforcement agency and remained private data when shared with the district under the Minnesota Government Data Practices Act, Minn.Stat. § 13.01-13.99 (2000) (GDPA). It asserts that the identity of the student witnesses is educational data, which are private data, and can only be disclosed when properly requested. See Minn.Stat. § 13.32, subd. 3.

Investigative data collected by a law-enforcement agency for purposes of preparing a case against an individual who committed a crime or other offense are considered confidential while the investigation is active. Minn.Stat. § 13.82, subd. 7. Once the investigation is no longer active, (i.e., completed) data are no longer confidential or protected nonpublic data. Id. However, law enforcement may withhold public access to the identity of juvenile witnesses if law enforcement deems that the subject matter of the investigation justifies protecting their identity. Id., subd. 17(g).

Nonpublic data can be accessed by a “responsible authority” when such “access is authorized or required by statute or federal law.” Minn.Stat. § 13.05, subd. 9. A school district is by definition a state agency, which qualifies as a “responsible authority” under section 13.05. Minn.Stat. § 13.02, subds. 16, 17. The district claims that the investigative data became educational data, which are private data, when it received the information from law enforcement, but cites no authority holding the district had a right to the data or establishing that the data should be deemed educational data.

Educational data are “data on individuals maintained by a public educational agency * * * which [relate] to a student.” MinmStat. § 13.32, subd. 1(a). Generally, law-enforcement records that are part of a public education agency and are maintained separately from educational data only for law enforcement purposes and are not shared with non-law enforcement officials are not considered educational data. Id.

In this case, the Adams police officers are not part of the school district and the law enforcement records are maintained separately from the district’s records. Simply because the police shared their report with the district does not convert the information into educational data subject to restrictions on disclosure, particularly in light of the fact that law-enforcement records that are part of an educational system would not be so classified. Once the police investigation was completed, the information became public information. Nothing in the evidence adduced at the hearing established that police had determined that public access to the identity of juvenile witnesses was justified in this matter.

The names of the student witnesses were not provided to E.J.W. and the district did not compel their attendance. The district argues on appeal that the names were not disclosed to E.J.W. before the hearing “for fear of reprisal,” because of the nature of the incident. This is a merit-less argument. Such reasoning would mean that all criminal trials and disciplinary hearings would be based on total hearsay, and the constitutional guarantees of confrontation and cross-examination would be routinely violated. Ironically, the district immediately revealed the names of the juvenile witnesses at the hearing after a motion by E.J.W.’s attorney. So much for the district’s claim that the juvenile witnesses “deserved anonymity.”

We conclude that the names of the student witnesses were not educational data under the GDPA, and E.J.W. should have been provided access to their names.

III. Due Process

The district contends that it did not violate EJ.W.’s due-process rights because it was only required to disclose the names of the witnesses who would testify at the hearing, and it did so. The district also argues that E.J.W. had the right to compel the attendance of any person and to confront and cross-examine any witness from the district. Specifically, the district asserts that E.J.W. could have asked for a continuance when he learned the witnesses’ names in the middle of the hearing and sought a subpoena to compel them to testify at the hearing. The district claims, therefore, that E.J.W. was not denied his due-process rights under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). We disagree. The commissioner found that the district’s failure to call the student witnesses at the hearing deprived E.J.W. of the opportunity for cross-examination and precluded the hearing officer from personally observing the demeanor of the witnesses in order to determine their credibility, thereby violating E.J.W.’s constitutional rights. We agree.

Education is a fundamental right. Minn. Const, art. XIII, § 1 (Education Clause); Skeen v. State, 505 N.W.2d 299, 302 (Minn.1993). The United States Supreme Court has stated that

a student’s legitimate entitlement to a public education [is] a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.

Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975). In Goss, the Supreme Court held that a suspension of up to 10 days is a “serious event” for a child and requires at minimum some sort of notice and hearing. Id. at 576, 579, 95 S.Ct. at 737, 738. Goss also states that “Monger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.”' Id. at 584, 95 S.Ct. at 741. Minnesota law states that “[n]o public school shall deny due process or equal protection * * * to any [student] involved in a dismissal proceeding” that could lead to expulsion. Minn.Stat. § 121A.42.

Mathews v. Eldridge sets out three factors for determining the level of due process required:

First, the. .private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. at 903 (citation omitted).

First, the private interest that will be affected is E.J.W.’s right to an education. The district argues that E.J.W.’s private interest is. his “right to school attendance,” rather than an education. The district argues that since they can provide E.J.W. with alternative education opportunities, he is not being deprived of his right to an education. The Supreme Court held in Goss, however, that expulsion “could seriously damage the [student’s] standing with [his] fellow pupils and [his] teachers as well as interfere with later opportunities for higher education and employment.” Goss, 419 U.S. at 575, 95 S.Ct. at 736. Receiving homework assignments rather than participating in the classroom and receiving direct instruction and benefiting from teacher involvement may have a similar impact on E.J.W.

Second, the risk of an erroneous deprivation of E.J.W.’s right to an education through the lack of disclosure of the names of student witnesses and the lack of an opportunity to confront and cross-examine them is compelling. Under the Pupil Fair Dismissal Act, the student has the right to compel attendance of anyone “who may have evidence upon which the proposed action may be based.” Minn.Stat. § 121A.47, subd. 9 (2000). Chief Briggs’s and Detective May’s testimony was uncorroborated hearsay, which was the basis of the hearing officer’s recommendation to expel E.J.W. for the remainder of the fall semester. There was no direct evidence at the hearing on E.J.W.’s involvement in the incident. There were inconsistencies in some students’ statements to the police, which did nothing but highlight the need for vindication of the constitutional right to confront and cross-examine witnesses. E.J.W. was unable to cross-examine a single student witness who implicated him, and he could not challenge their version of events or their credibility.

Finally, the administrative burden on the district to safeguard against depriving E.J.W. of due process is minimal. The hearing officer and school board have the power to subpoena student witnesses. The burden to compel attendance at the hearing is on the school district and the failure to do so is excused only for a compelling reason. See Minn.Stat. § 121A.47, subd. 2(f)(4) (stating student has right to confront and cross-examine witnesses); see also Stone v. Prosser Consol. Sch. Dist., 94 Wash.App. 73, 971 P.2d 125, 128 (1999) (stating that, in factually and statutorily similar case, it must be established at hearing that the district tried to produce key witnesses and failure to appear was excused by compelling reason).

The district’s argument that E.J.W. could have asked for a continuance once the names were revealed and subpoenaed them himself is meritless. The district had the burden of proof and the burden of production at the hearing, not E.J.W. If the district was not going to call the students as witnesses, E.J.W. was entitled to have their names before the hearing, so his attorney would have an opportunity to investigate and compel their presence by subpoena if that was deemed necessary to present an adequate defense. The district’s stated concern that “improperly” disclosing the identity of the witnesses might subject it to claims by the juvenile witnesses pursuant to the GDPA is unwarranted. First, the names of the students were disclosed during the hearing by the district with virtually no objection. Second, the hearing was closed pursuant to statute, thereby offering some protection of the students’ identities. See Minn.Stat. § 121A.47, subd. 5. Third, based on previous analysis, the GDPA does not actually prevent the district from disclosing the information for purposes of a contested hearing.

The commissioner of the DCFL properly determined that the district deprived E.J.W. of his due-process rights by failing to call or identify the student witnesses to testify at the hearing.

IV. Substantial Evidence to Expel

The commissioner of the DCFL concluded that without the additional testimony of the student witnesses, the hearing officer lacked a sufficient basis to expel E.J.W. The district argues that there was substantial evidence at the hearing to support the hearing officer’s recommendation to expel E.J.W. because the principal, two police officers, and one student testified.

First of all, the principal had no firsthand knowledge of who was involved in the incident. He only testified as to how he learned about the threat, the steps taken to deal with it, and the circumstances that generally warrant some sort of disciplinary action. Second, Chief Briggs and Detective May testified about what the various students told them during the investigation and to what extent Briggs and May believed, based on those statements, that E.J.W. was involved in the incident. The statements of the student witnesses came through the police officers’ testimony, which is hearsay (and in some instances, double hearsay). The one student who did testify only addressed where E.J.W. was standing in relation to the bathroom when the note was left on the mirror; he testified that he had no knowledge of E.J.W.’s involvement and that E.J.W. did not appear to be involved in the incident. E.J.W. testified and claimed no involvement in the incident. Instead, he claimed that he overheard conversations about the plan and did not say or do anything about it, much like other students and a teacher. The only people who supposedly had firsthand knowledge of E.J.W.’s involvement were the students who gave statements to the police and did not testify at the hearing.

“The recommendation of the hearing officer * * * shall be based solely upon substantial evidence presented at the hearing * * Minn.Stat. § 121A.47, subd. 12. Substantial evidence is defined as:

1. Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;
2. More than a scintilla of evidence;
3. More than some evidence;
4. More than any evidence; and
5. Evidence considered in its entirety.

Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668 (Minn.1984) (citations omitted). The general rule governing the use of hearsay in administrative proceedings is that

in the absence of a special statute, an administrative agency cannot, at least over objection, rest its findings of fact solely upon hearsay evidence which is inadmissible in a judicial proceeding.

State ex rel. Indep. Sch. Dist. No. 276 v. Dept. of Ed., 256 N.W.2d 619, 627 (Minn.1977) (quotation omitted). E.J.W. objected to the hearsay at the hearing, and the hearing officer overruled the objection.

Without the testimony of the student witnesses, the hearing officer lacked an adequate basis, beyond hearsay, to support the conclusion that E.J.W. participated in the bomb threat. There is no direct evidence supporting that conclusion. In fact, the hearing officer’s conclusion that E.J.W. did not participate in coercing the student to write the message on the mirror, but did act as a guard to the bathroom door, is in contradiction with Chief Briggs’s professional assessment of the information he gathered from the student witnesses. We conclude that the commissioner correctly determined that the hearing officer lacked a sufficient basis to expel E.J.W.

Relative to the procedure on remand, the commissioner ordered the following, which we affirm verbatim.

The Board is to be commended for utilizing an independent hearing officer and affirming his recommendation in terms of the length of the expulsion. However, the District violated the Student’s constitutional and statutory rights when it denied him the ability to confront and cross-examine witnesses at the expulsion hearing.

The expulsion proceeding must be remanded to the District. The District must determine if it will hold a new expulsion hearing, affording the Student the opportunity to confront and cross-examine the student witnesses who made statements implicating the Student in the bomb threat.

If a new hearing is held and the District wishes to utilize the information contained in the police reports, the District must provide the names of the student witnesses and subpoena them to testify. The Student must be given the right to confront and cross-examine the witnesses who implicated him in the bomb threat. Otherwise, the District may not use this information in its expulsion decision. As noted above, without this testimony, the District lacks sufficient basis to expel the Student.

The District shall notify the Student’s counsel and CFL within five days of the date of this decision whether it will hold a new expulsion hearing for the Student.

If the District chooses not to go forward with a new hearing, the District shall immediately reinstate the Student as a student in good standing and expunge all references to the Student’s expulsion on November 8, 2000, from the School from the District’s school records and files.

If the District moves to hold a new expulsion hearing, it must be held within 10 days of the date of this decision, and the School Board’s written decision must be received by [CFL] within 10 business days of the hearing.

DECISION

We affirm the department’s reversal and remand. The district must decide whether or not to hold a new expulsion hearing. If the district holds a new hearing and relies on the information contained in the police reports, the district must provide the names of the student witnesses and subpoena them to testify, thereby protecting E.J.W.’s right to confront and cross-examine those who implicated him. If the district elects to have the hearing, the district shall immediately notify E.J.W.’s counsel and the DCFL, and shall comply in all respects with the commissioner’s order as to time limits.

If the district chooses not to go forward with a new hearing, the district shall immediately reinstate E.J.W. as a student in good standing and expunge all references to EJ.W.’s expulsion on November 8, 2000, from school records and files, as directed by the commissioner’s order.

Affirmed.

      . Hearsay is defined as
      a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
      Minn. R. Evid. 801(c).


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge PETER J. LINDBERG, Judge

license: Public Domain

text:
    Steven R. ODENTHAL, Respondent, v. MINNESOTA CONFERENCE OF SEVENTH-DAY ADVENTISTS, Appellant, General Conference of Seventh-Day Adventists; Minnetonka Seventh-Day Adventist Church, Defendants, Lowell Rideout, Appellant.
    Nos. C1-01-278, C4-01-291.
    Court of Appeals of Minnesota.
    Aug. 28, 2001.

      Ronald I. Meshbesher, Katherine S. Flom, Debra A. Filteau, Meshbesher Spence, Ltd., Minneapolis, MN, (for respondent).
    Patrick T. Tierney, Collins, Buckley, Sauntry Haugh, P.L.L.P., St. Paul, MN, (for appellant Minnesota Conference of Seventh-Day Adventists).
    Richard L. Pemberton, Jr., Leatha G. Wolter, Erica Gutmann Strohl, Meagher Geer, P.L.L.P., Minneapolis, MN, (for appellant Rideout).
    Considered and decided by TOUSSAINT, Chief Judge, HALBROOKS, Judge, and LINDBERG, Judge.
   OPINION

TOUSSAINT, Chief Judge

The district court denied appellants motion for summary judgment on respondents claim against appellant minister for negligent counseling. Appellants challenge this decision, asserting that the district court does not have subject matter jurisdiction over the action. Because resolution of the claim would result in excessive entanglement with religion in violation of the First Amendment, we reverse.

FACTS

Respondent Steven Odenthal and his then-wife Diane were members of the Minnetonka Seventh-Day Adventist Church. The couple sought marital counseling from their minister, appellant Lowell Rideout. He met with them as a couple and individually from mid-1997 until September 1999.

Respondent contends that Rideout acted inappropriately in a number of respects. During one of the first counseling sessions, Rideout told respondent that he felt very attracted to Diane Odenthal and needed to pray about it. Rideout administered a psychological or personality test to the Odenthals and advised them based on the test that their personality types were very different, which would make it very difficult for them to have a harmonious marriage. In contrast, Rideout said that his own personality type was very similar to Dianes. In May 1998, church members, including Rideout and Diane Odenthal, stayed at a motel during a three- or four-day out-of-state seminar, during which time Rideout provided counseling to Diane in her motel room. In a 1999 counseling session, Rideout asked Diane Odenthal to make a list of the qualities she would like to see in a fantasy mán and then told her that he was her fantasy man. During this same period, Rideout told respondent while they were meeting alone that if Rideout made himself available, Diane Odenthal would run off with him. Rideout also told respondent that respondent and his wife were not right for each other from the beginning and that Rideout did not have any hope for a good solution.

On September 30, 1999, Rideout was forced to resign his ministry, largely because of his relationship with Diane Oden-thal. Respondent acknowledged that there was no evidence that Rideout and Diane Odenthal were sexually intimate while Rideout was providing them with pastoral counseling or at any time before Rideout left the church. Respondent and Diane Odenthal separated around the end of October 1999. Respondent served Diane Odenthal with a petition for a legal separation in November 1999, and she subsequently began dissolution proceedings. Rideouts dissolution became final in June 2000. Rideout and Diane Odenthal are now married.

Respondent contended that Rideout, while acting as a trained counselor, breached confidentiality and violated counseling relationship boundaries by repeatedly disclosing personal information. He also asserts that Rideout repeatedly violated church doctrine and policy regarding limits on the counseling a minister may provide, as set out in the Seventh-Day Adventist Ministers Handbook. He sued Rideout for (1) clergy malpractice; (2) intentional infliction of emotional distress; (3) breach of fiduciary duty or confidential relationship; and (4) negligence. The court dismissed all counts except negligence and ruled that the claim was neither prohibited by the First Amendment nor barred by Minn.Stat. §§ 553.01-.03, (2000), abolishing civil causes of action for alienation of affection. Respondent also sued several church organizations, but the only claim remaining against them after summary judgment is the claim for vicarious liability against the Minnesota Conference of Seventh-Day Adventists. Rideout and the Minnesota Conference appeal.

Respondent moved to dismiss this appeal as taken from a nonappealable order. This court allowed the appeal to proceed on the sole issue of whether the district court had subject matter jurisdiction to hear the negligence claim without excessive entanglement in religious matters.

ISSUE

Does the district court have subject matter jurisdiction over respondents claim for negligent counseling?

ANALYSIS

An interlocutory appeal raising the issue of subject-matter jurisdiction is immediately appealable. McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 833 (Minn.1995). An appellate courts review of subject matter jurisdiction is de novo. Basich v. Board of Pensions, Evangelical Lutheran Church in Am., 540 N.W.2d 82, 85 (Minn.App.1995), review denied (Minn. Jan. 25, 1996).

The First Amendment to the United States Constitution provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. U.S. Const, amend. I. The amendment governs both legislation and judicial determinations. Franco v. The Church of Jesus Christ of Latter-Day Saints, 21 P.3d 198, 203 (Utah 2001) (citing Kreshik v. St. Nicholas Cathedral, 363 U.S. 190, 191, 80 S.Ct. 1037, 1038, 4 L.Ed.2d 1140 (I960)). It is applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). The Minnesota Constitution guarantees that control of or interference with the rights of conscience [will not] be permitted and that the state will not show preference to any religious establishment or mode of worship. Minn. Const, art. I, § 16.

Appellants contend that the lawsuit violates the prohibition against laws respecting the establishment of religion. To meet an Establishment Clause challenge, a lawsuit must (1) have a secular purpose; (2) neither advance nor inhibit religion as its primary effect; and (3) not foster excessive governmental entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). Courts focus on the excessive entanglement issue in addressing tort liability of clergy. Franco, 21 P.3d at 203.

In assessing whether there is excessive entanglement, a number of factors will be considered, including

[t]he character and purpose of the institution involved, the nature of the regulations intrusion into religious administration, and the resulting relationship between the government and the religious authority.

Black v. Snyder, 471 N.W.2d 715, 720 (Minn.App.1991) (citing Lemon, 403 U.S. at 614-15, 91 S.Ct. at 2112), review denied (Minn. Aug. 29, 1991). When the claims against religious institutions concern core questions of church discipline and internal governance, the inevitable danger of governmental entanglement precludes judicial review. Black, 471 N.W.2d at 720 (citing Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 717, 721, 96 S.Ct. 2372, 2384, 2386, 49 L.Ed.2d 151 (1976)). But when the claims can be resolved by neutral principles of law, such claims may go forward. Basich, 540 N.W.2d at 85 (citing Jones v. Wolf, 443 U.S. 595, 602, 99 S.Ct. 3020, 3025, 61 L.Ed.2d 775 (1979)).

The district court dismissed respondents claim for clergy malpractice on the ground that Minnesota does not recognize the cause of action. But it ruled that the claim for negligent counseling could stand because Rideout had exceeded the limits of pastoral counseling and thereby engaged in secular counseling, for which he could be held hable in negligence. The elements of an action for negligence include (1) duty; (2) breach of that duty; (3) that the breach of the duty be the proximate cause of plaintiffs injury; and (4) damages. Minneapolis Employees Retirement Fund v. Allison-Williams Co., 519 N.W.2d 176, 182 (Minn.1994). While the general standard of care is that of a reasonably prudent person, for a negligence action against a professional, the standard is whether the defendant exereise[d] the degree of care and skill usually exercised by members of the profession under similar circumstances. Id. (citation omitted).

Clergy Malpractice

In analyzing the issues, we must first examine the dismissed claim of clergy malpractice, in anticipation of a comparison with the allegedly distinct claim for negligent counseling. According to several recent cases, the claim of clergy malpractice has been universally rejected by courts in the United States. Teadt v. St. John’s Evangelical Church, 237 Mich.App. 567, 603 N.W.2d 816, 822 (1999); see Franco, 21 P.3d at 204 (same). The most difficult aspect of a clergy malpractice action concerns the duty of care. See F.G. v. MacDonell, 150 N.J. 550, 696 A.2d 697, 703 (1997). This could embroil courts in establishing the training, skill, and standards applicable for members of the clergy in a diversity of religions with widely varying beliefs. Id. (citation omitted). Further, it would require courts to identify the beliefs and practices of the relevant religion and then to determine whether the clergyman had acted in accordance with them. Id. (citations omitted). Doing so would necessarily entangle the courts in the examination of religious doctrine, practice, or church polity, which is prohibited by the Establishment Clause. Franco, 21 P.3d at 204.

Negligent Counseling

While appellants contend that this is really a clergy malpractice claim and respondent contends it is a separate tort, the determinative issue is whether resolution of the claim will result in excessive entanglement in religion. The district court determined that Rideout had exceeded the limits for pastoral counseling under the standards set out in the ehurchs ministers handbook. It determined he had engaged in secular counseling by using a secular psychological test for analyzing the Oden-thals marital situation and cited the expert testimony that Rideout had provided psychotherapy and acted as a marriage counselor for the Odenthals from mid 1997 through mid-1999.

Respondent asserts that caselaw supports a claim for negligent counseling that is distinct from the prohibited clergy-malpractice claim. These cases, however, rest on a free-exercise argument that is not at issue here. See, e.g., Sanders v. Casa View Baptist Church, 134 F.3d 331, 335-36 (5th Cir.1998) (First Amendment does not categorically insulate religious relationships from judicial scrutiny); DeStefano v. Grohrian, 763 P.2d 275, 283-85 (Colo.1988) (en banc). Respondent also contends that because his tort claim for negligent counseling can be resolved using neutral methods of proof, the First Amendment is not violated. See Black, 471 N.W.2d at 720-21 (reversing dismissal of claim of sexual harassment because claim was unrelated to pastoral qualifications or church doctrine). Respondent also notes that clergy who embark on psychotherapy — though unlicensed — are subject to disciplinary actions by the office of mental health, although clergy who provide pastoral services are not. See Minn.Stat. § 148B.60, subds. 3, 4 (2000). While not arguing that this statute provides him with a private cause of action, he contends it demonstrates that clergy who engage in counseling may be held to neutral standards and that the state has an interest in regulating ministers whose counseling practices go beyond pastoral counseling required by the church. Finally, he asserts that the state has a compelling interest in protecting counselees from exploitation by counselors.

In determining that Rideout had exceeded the limits of pastoral counseling, the district court examined what it believed were the church-approved standards for pastoral ethics and counseling contained in the ministers handbook. From the chapter on Pastoral Ethics, the court cited the advice that ministers should [seldom counsel with women when alone and [b]e cautious of sexual counseling. These caveats were included in a list of solutions for ministers to use in resolving problems arising from romantic attention directed to ministers by female parishioners. The district court also cited from the chapter entitled Counseling, in which it is recommended that ministers should limit their counseling to four or five sessions, making your time and expertise available to more people and to [k]now when to refer. These, statements were within the context of a discussion of the limited time and expertise that ministers have to offer as counselors.

[T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government. Milivojevich, 426 U.S. at 724, 96 S.Ct. at 2387. The district court here, however, determined that certain provisions in the ministers handbook set out standards applicable to appellant and determined he did not meet these standards. In effect, the district court concluded that a minister who did not follow these ethical codes and counseling guidelines stepped outside of the role of a minister. By interpreting and analyzing the language and intent of the ministers handbook, the district court did precisely what the First Amendment forbids, resulting in the excessive entanglement of the district court in religious doctrine, practice, or church polity. Franco, 21 P.3d at 204. Resolution of the negligent counseling claim would therefore violate the First Amendment.

DECISION

The decision by the district court denying appellants motion for summary judgment as to the negligent counseling claim is reversed.

Reversed.

PETER J. LINDBERG, Judge

(dissenting)

I respectfully dissent. I would affirm and hold that the district court had jurisdiction over Odenthals lawsuit against appellants for negligent counseling.

The majority holds that this lawsuit violates the Establishment Clause of the First Amendment because its resolution would require excessive entanglement in religion. I disagree, because clergy are not protected by the First Amendment for conduct unrelated to pastoral qualifications or issues of church doctrine. See Black v. Snyder, 471 N.W.2d 715, 721 (Minn.App.1991) (holding Establishment Clause of First Amendment does not bar former pastors sexual harassment claim against church), review denied (Minn. Aug. 29, 1991).

Odenthal produced evidence supporting his contention that Rideout, engaged in conduct that constituted secular counseling. First, Rideout used a psychological test, which is a secular counseling tool. Next, the guidelines set out in the Seventh-Day Adventist Ministers Handbook envisioned only short-term pastoral counseling (four or five sessions at most) and strongly advised against counseling women alone. It is undisputed that Rideout counseled the Odenthals for some two years, including a number of individual sessions with Diane Odenthal. Odenthal also offered the depositions of several Seventh-Day Adventist officials, who opined that Ridéouts actions in counseling the Oden-thals went far beyond the conduct they expected from their ministers. Finally, Odenthal presented expert opinion from a psychologist that Rideout was providing therapy and acting as a marriage counsel- or.

The majority also indicates concern that assessing the standard of. care would involve entanglement in church doctrine. But here, the standard of care would be a neutral one, applicable to any counselor charged with negligence. See Zagaros v. Erickson, 558 N.W.2d 516, 521 (Minn.App.1997) (holding psychologist has duty. to diagnose mental disease and to apply proper treatment), review denied (Minn. Apr. 17, 1997); see also Margaret A. Burton, Comment, Nally v. Grace Community Church: Is There a Future for Clergy Malpractice Claims?, 37 Santa Clara L.Rev. 467, 509 (1997) (proposing neutral standard of care for clergy malpractice claims).

We also look to the state legislature, which has indicated that clergy who engage in secular nonpastoral counseling are subject to state regulation. See Minn.Stat. § 148B.60, subds. 3, 4 (2000) (providing that clergy who engage in professional mental health activities are subject to discipline under state office of mental health practice, while clergy engaged in pastoral counseling are not). For purposes of the office of mental health practice, the legislature has defined mental health services to include psychotherapy, although it excludes pastoral services.

Mental health services means psychotherapy and the professional assessment, treatment, or counseling of another person for a cognitive, behavioral, emotional, social, or mental condition, symptom, or dysfunction, including in-trapersonal or interpersonal dysfunctions. The term does not include pastoral services provided by members of the clergy to members of a religious congregation in the context of performing and fulfilling the salaried duties and obligations required of a member of the clergy by that religious congregation.

Id,., subd. 4. Further, the office may impose disciplinary action on such clergy who engage in wrongful conduct, including revoking or suspending the right to practice, imposing conditions on the practice, and assessing penalties. Minn.Stat. § 148B.69, subd. 1 (2000). We also note that clergy who engage in sexual contact with their counselees while providing psychotherapy are subject to an action for sexual exploitation by their victims. Minn.Stat. §§ 148A.01, subd. 5, .02 (2000). Thus, the state legislature has no difficulty in separating protected pastoral counseling from nonprotected secular counseling.

In short, where Rideout held himself out to be a secular counselor, he had a duty to use the standard of care that any such counselor must follow. If he crosses the line and breaches that standard, he should be subject to an action for negligent counseling. I would affirm.

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


author: HANSON, Judge

text:
    In re the Marriage OF Steven Allen SCHLICHTING, Petitioner, Appellant, v. Kimberly Anne PAULUS, f/k/a Kimberly Anne Schlichting, Respondent.
    No. C0-01-157.
    Court of Appeals of Minnesota.
    Sept. 4, 2001.

      Todd A. Kelm, Kelm Law Offices, P.A., Sauk Rapids, MN, (for appellant).
    James B. Dickinson, Koenig & Dickinson, Limited, Mound, MN, (for respondent).
    Considered and decided by HANSON, Presiding Judge, WILLIS, Judge, and HALBROOKS, Judge.
   OPINION

HANSON, Judge

In this child-support phase of the parties’ marital-dissolution proceeding, appellant father, who shares joint physical custody of the parties’ children, argues the district court erred when it ordered appellant to pay “full guidelines” child support, without any Hortis/Valento offset for the time the children reside with appellant. Because the district court has discretion to deviate from the guidelines in the best interests of the children, and the district court’s findings satisfy the criteria for deviation, we affirm.

PACTS

The marriage of appellant Steven Schlichting (father) and respondent Kimberly Paulus (mother) was dissolved in 1996. That judgment granted the parties joint legal and physical custody of their two minor children and reserved the issue of child support. Initially, the parties agreed to rotate custody to achieve a ⅝ split.

In October 2000, the district court entered a second amended judgment recognizing the parties’ stipulation that mother could move the primary physical residence of the children to Wisconsin during the nine-month academic year and that the children would primarily reside with father during the summer. During both periods, the other parent was entitled to visitation on alternating weekends, and all holidays throughout the year were divided equally. Mother, who had relocated to Wisconsin, was held responsible for the majority of the cost of transporting the children between Wisconsin and Minnesota. The amended judgment did not change the award of joint physical custody.

In November 2000, the district court entered a third amended judgment that determined the issue of child support. The court included the following relevant factual finding:

Currently [mother] is a full-time student and mother and is not employed. The Court finds that while the Respondent is currently under employed, she is engaged in an academic program that will lead to better employment opportunities. Further, the best interests of the children require that the [father] make full guide-line child support payments at this time.

The court required father to contribute child support of $805 per month, based on the guideline amount calculated under Minn.Stat. § 518.551, subd. 5(b) (2000). The court did not use the Hortis/Valento formula to reduce this amount based on mother’s income and the period of the children’s residence with father. See Valento v. Valento, 385 N.W.2d 860, 862-63 (Minn.App.1986), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn.App.1985) (stating that, in a joint physical-custody situation, each party’s support obligation is determined by the statutory guidelines during the time the other parent has custody). Father appeals the child-support determination.

ISSUES

1. Was the district court’s failure to apply the Hortis/Valento formula to its calculation of child support a deviation from the guidelines, requiring findings as specified in Minn.Stat. 518.551, subds. 5(c) and 5(i)?

2. Were the district court’s findings sufficient to warrant deviation from the guidelines?

ANALYSIS

We will first consider whether the failure to apply the Hortis/Valento formula to a case of joint physical custody is a deviation from child-support guidelines. This is a legal issue, which we review de novo. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn.1993). We will next consider whether any deviation the district court made from the guidelines was clearly erroneous. Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn.1984).

I.

Father argues that the district court erred by failing to apply the Hor-tis/Valento formula because the parties have joint physical custody of the children. Application of the Hortis/Valento formula to cases of joint physical custody is an application of the guidelines. See Valento v. Valento, 385 N.W.2d 860, 862 (Minn.App.1986) (stating “[t]he method for applying the guidelines to joint physical custody situations was set out in Hortis v. Hortis, 367 N.W.2d 633 (Minn.Ct.App.1985)”), review denied (Minn. June 30, 1986). Under that formula, the guideline child support amount is the amount indicated by the guidelines, but only for the periods of time that the other parent has actual custody of the children. Id. at 862-63.

This guideline support amount is presumed to be the correct support amount, but that presumption is rebuttable and deviations from the guideline amount may be made with appropriate findings. See Minn.Stat. § 518.551, subd. 5(i) (2000) (stating guideline support obligation is re-buttable presumption, deviation from guideline amount requires findings, identifying certain findings required for deviation, and stating deviation requires additional findings on factors listed in Minn. Stat. § 518.551, subd. 5(c)). Thus, the presumptively correct, guideline child-support amount for parents with joint physical custody is the amount calculated under Minn. Stat. § 518.551, subd. 5(b), for each parent, less the amount offset by the Hortis/Valen-to formula. Any deviation from that amount requires the statutory findings.

This conclusion was not modified by the recent decision of the supreme court, holding that the guidelines do not contemplate the application of the Hor-tis/Valento child-support formula in a case of sole physical custody. Rogers v. Rogers, 622 N.W.2d 813, 821 (Minn.2001). There, the supreme court noted that, in joint physical custody cases, “the court of appeals has grafted onto the guidelines the Hortis/Valento formula.” Id. at 819. Further, the rationale in Rogers is consistent with a decision to treat the Hortis/Va-lento formula as an application of the guidelines in a case of joint physical custody. In Rogers, the court determined that the Hortis/Valento formula was not a part of the guidelines in a case of sole physical custody because the formula treats each parent as a child-support “obligor” and the legislature’s 1998 amendment to the definition of “obligor” presumptively excluded a parent with sole physical custody. Id. at 819-20 (citing Minn.Stat. § 518.54, subd. 8 (2000)). Where a joint physical custody is granted, each parent meets the definition of a child-support obligor.

II.

The district court may depart from the guidelines (including the Hortis/Valento formula), when it complies with the requirement to provide

written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the [statutory] criteria in paragraph (c) and how the deviation serves the best interest of the child.

Minn.Stat. § 518.551, subd. 5(i).

Mother argues that the district court had discretion to determine child support without applying the Hortis/Valento formula because, even without any offset in father’s favor under the formula, her expenditures exceed her income while father’s income exceeds his expenditures.

The district court made sparse relevant findings. While we would prefer to see a more explicit analysis, we conclude that the district court’s findings are minimally sufficient to justify deviation from the child-support guidelines. In reaching this conclusion, we rely upon the following findings:

While the parties have a joint physical custody, the physical custody arrangement is similar to a traditional custody/visitation arrangement rather than a true joint custody arrangement.
⅜ ⅜ ⅜ ⅜
Currently [mother] is a full-time student and is not employed. The Court finds that while the [mother] is currently under employed, she is engaged in an academic program that will lead to better employment opportunities. Further, the best interests of the children require that the [father] make full guide-line child support payments at this time. [Mother’s] current income includes $1,800.00, her husband’s earnings of $12,843 and certain student loans for a total household income of $14,143. Her monthly reasonable expenses are $2,175.00. The parties have submitted financial data to the Court. The Court finds [father’s] child support obligation at this time to be $805.00 per month. Attached hereto and incorporated herein as Exhibit “A” is the calculations of the Court concerning the parties incomes, cash flow and support.

Given the parties’ current disparity in income and mother’s prospects to enhance her position through education, these findings are supported by the evidence, are not clearly erroneous and address the material statutory criteria for deviation. The statutory factors that were not explicitly addressed by the district court are either inapplicable to, or neutral under, the facts of this case. The district court’s child-support award is linked to the present situation of mother and may be revisited when mother completes her education and obtains employment.

DECISION

The district court’s decision to deviate from the child-support guidelines by not applying the Hortis/Valento formula was supported by adequate findings on the statutory criteria.

Affirmed.

      . Because Rogers did not involve joint physical custody, the supreme court declined to address whether the use of the Hortis/Valento formula was proper in a case of joint physical custody. Rogers, 622 N.W.2d. at 821 n. 19; see Duffney v. Duffney, 625 N.W.2d 839, 842 n. 1 (Minn.App.2001) (declining to comment on the propriety of the assumption that the Hortis/Valento formula is proper in a case of joint physical custody).


author: RANDALL, Judge

text:
    STATE of Minnesota, Respondent, v. Beth Ann BURNS, Appellant.
    No. C6-00-1853.
    Court of Appeals of Minnesota.
    Sept. 4, 2001.

      Jennifer M. Inz, Craighton T. Boates, Lang, Pauly, Gregerson & Rosow, Ltd., Minneapolis, MN, (for respondent).
    Paul B. Ahern, Paul B. Ahern, P.A., Minnetonka, MN, (for appellant).
    Considered and decided by ANDERSON, Presiding Judge, RANDALL, Judge, and SCHUMACHER, Judge.
   OPINION

RANDALL, Judge

Appellant moved the district court to dismiss her DWI-related charges because the state failed to comply with a Hennepin County standing order pertaining to discovery in alcohol-related offenses. After the court granted appellant’s motion, the state filed a new complaint against appellant, and appellant moved to dismiss a second time, arguing that the state failed to file the new complaint within seven days as required by Minn. R.Crim. P. 17.06. The court denied appellant’s second motion to dismiss, reasoning that her first motion was based on a discovery violation rather than a curable defect in the charging instrument articulated by 17.06. We conclude that rule 17.06 does not apply to a dismissal for a discovery violation. Affirmed.

FACTS

On July 3, 2000, appellant Beth Ann Burns was arrested and tab charged with three counts of driving while intoxicated and one count of careless driving. At the pretrial conference on August 9, 2000, Burns orally moved the district court to dismiss the tab charge. Her motion was based on a Hennepin County standing order dated June 1, 2000, relating to discovery for alcohol-related traffic offenses. That order mandates that all discovery must be completed and exchanged at least five days before the pretrial conference or probable cause hearing. Specifically, the state did not give Burns an audiotape she requested as part of discovery. The district court agreed with Burns that the state failed to comply with the standing order and granted Burns’s first motion to dismiss.

According to the district court’s memorandum, the state filed a new complaint on August 22, 2000, which charged Burns with the same offenses as the previous complaint. Burns responded by moving the court to dismiss a second time, and, for the first time, Burns argued that her first motion to dismiss was based on a defect in the tab charge. Based on this argument, Burns contended that the state as obligated to file the new complaint within seven days after the first complaint was dismissed under Minn. R.Crim. P. 17.06. The court found that Burns’s first motion to dismiss was based on a discovery violation rather than a motion that attacked a defect in the original tab charge. The court concluded that Minn. R.Crim. P. 17.06 was inapplicable and denied Burns’s second motion to dismiss. Following Burns’s conviction, she appeals from the district court’s denial of her second motion to dismiss.

ISSUE

Was appellant’s motion to dismiss governed by Minn. R.Crim. P. 17.06, which would have required the district court to grant appellant’s motion because the state failed to comply with the rule?

ANALYSIS

Construction of a procedural rule “is a question of law subject to de novo review.” State v. Martin, 591 N.W.2d 481, 484 (Minn.1999) (citations omitted).

If the district court grants a defendant’s motion to dismiss because of a curable defect in an indictment, complaint, or tab charge, the state has seven days to file a new complaint. Minn. R.Crim. P. 17.06, subd. 4. If the state does not file a new complaint within the seven-day time frame, further prosecution for the same offense is barred. Id.

Relying on rule 17.06, Burns argues that the state failed to file a new complaint within seven days after the district court granted her first motion to dismiss, and thus the district court erred by denying her second motion to dismiss.

A party’s failure to include all available defenses, objections, issues, and requests in a motion to the district court constitutes waiver of such objections unless the party can show good cause why the court may grant relief from the waiver. Minn. R.Crim. P. 10.03; see State v. Drieman, 457 N.W.2d 703, 709 (Minn.1990) (declining to consider defendant’s objections to indictment based on prosecutor’s conduct during grand jury proceedings because defendant did not raise objections in original motion challenging indictment and did not show cause for granting relief from waiver). First, because Burns did not raise an objection under rule 17.06 in her first motion to dismiss and did not show good cause for this failure, it could be held that she cannot now argue that the state failed to comply with the rule in her second motion to' dismiss. However, we will consider her argument on the merits. We disagree with Burns’s assertion that rule 17.06 “is not limited to defects in charging,” and we conclude that the spirit and the letter of rule 17.06 are aimed at the charging instrument. This case does not revolve around a charging instrument. Instead, the reason Burns originally successfully moved to dismiss was because of Hennepin County’s standing order relating to discovery. Specifically, Burns’s attorney stated, “We would also make a motion to dismiss for failure to provide discovery” (Emphasis added.) Since Burns’s first successful motion was based on a discovery challenge, we find that rule 17.06 is not applicable. See State v. Couture, 587 N.W.2d 849, 852 (Minn.App.1999) (concluding that appellant’s insistence that original complaint was dismissed under Minn. R.Crim. P. 17.06 was misplaced because record indicated that complaint was dismissed by prosecuting attorney under Minn. R.Crim. P. 30.01), review denied (Minn. Apr. 20, 1999).

No authority could be found to support Burns’s proposition that discovery violations are types of curable defects governed by rule 17.06. Rather, there are already specific rules that govern discovery violations. Discovery in misdemeanor cases requires the state to permit a defendant to inspect police investigative reports before trial. Minn. R.Crim. P. 7.03. “Any other discovery shall be by consent of the parties or by motion to the court.” Id. The rules do not indicate the consequences for failure to comply with these discovery rules; caselaw states that the imposition of sanctions for discovery rules violations is within the district court’s discretion. See State v. Lindsey, 284 N.W.2d 368, 373 (Minn.1979) (stating imposition of sanctions for discovery violations is within district court’s discretion because it is in best position to determine whether any harm resulted from violation).

Here, the Hennepin County standing order pertains to discovery in alcohol-related offenses. This standing order was the basis for Burns’s first motion to dismiss. Thus, it was within the court’s discretion to sanction the state for its failure to comply with the applicable discovery rule.

Rule 7.03 does not discuss specifically the consequences for a party’s failure to comply with discovery rules in misdemean- or cases. The comments to rule 7.03 state that, when additional discovery beyond police investigative reports is considered necessary by either party, “the court will be guided by the extensive discovery provisions of these Rules” to decide appropriate sanctions for discovery violations. For example, in gross misdemeanor and felony cases, the district court may compel discovery, “grant a continuance, or enter such order as it deems just in the circumstances.” Minn. R.Crim. P. 9.03, subd. 8.

Here, the district court granted “without prejudice” Burns’s first motion to dismiss. By the time Burns moved the court to dismiss a second time after the state filed a new complaint, the state had already complied with Burns’s discovery request. The second complaint was filed just 13 days after her first motion to dismiss was granted. The requested discovery had already been exchanged. We cannot find substantial prejudice to Burns’s right to prepare for trial by this six-day delay. See Woodruff v. State, 608 N.W.2d 881, 885-86 (Minn.2000) (upholding post-conviction court’s refusal to grant defendant’s request for new trial as sanction for state’s discovery violation). However, we do not decide the case on the issue of prejudice, or the lack thereof, but rather as aforesaid, namely, that we find that rule 17.06 does not control our analysis.

Although we conclude that rule 17.06 does not apply to discovery violations, we do understand appellant’s argument. It would seem that since the genesis of Hen-nepin County’s standing order is to expedite alcohol-related offenses, it would not be illogical for Hennepin County to modify the order to mandate a time frame beyond which the state cannot recharge a claimant after a dismissal for a (standing order) discovery violation.

DECISION

The discovery violation did not constitute a defect as contemplated by rule 17.06. Burns received the audiotape before the state filed the second complaint, and the state filed that complaint just 13 days after the first tab charge was dismissed. The district court did not err by denying Burns’s second motion to dismiss.

Affirmed.

      . We agree with Burns’s argument, and the state concedes, that the term "without prejudice” is irrelevant. It is a civil, not a criminal, term.


author: KAPSNER, Justice.

text:
    2001 ND 150
    STATE of North Dakota, Plaintiff and Appellee v. Mitchell J. WIEST, Defendant and Appellant.
    No. 20000306.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      Cynthia Mae Feland, Assistant State’s Attorney, Bismarck, for plaintiff and ap-pellee.
    Steven Balaban, Bismarck, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Mitchell Wiest has appealed a judgment of conviction entered on jury verdicts finding him guilty of continuous sexual abuse of a child and terrorizing. We affirm.

[¶ 2] Wiest was charged with three counts of continuous sexual abuse of a child and two counts of terrorizing. The State filed a pretrial motion “for an order allowing hearsay regarding child’s statement about sexual abuse pursuant to rule 803(24), North Dakota Rules of Evidence.” The motion stated, in part:

In this case, the State intends to call the children, ages five (5), eight (8) and nine (9), to testify. However, in any ease involving young children, there is always the possibility that the children will somehow be unable to testify and be deemed unavailable. Should any of the three children testify, but their testimony is unclear or not complete, or if any of the three children are impeached, the State intends to call Debbie 0[ jsowski, Shelly Russel[l], Officer Mike Rober-deau, Detective John McDonald ... to testify as to the children’s statements about sexual abuse.

After a hearing, the trial court issued an order granting the motion:

IT IS HEREBY ORDERED that the State’s Motion to Allow Hearsay Regarding the Children’s Statements About Sexual Abuse under Rule 803(24) is granted in so far as statements made to Debbie 0[ jsowski, Shelly Russel[l], Officer Mike Roberdeau, and John McDonald.

[¶ 3] In her opening statement at trial, the prosecutor said the three children would testify and Osowski, Russell, Rober-deau, and McDonald would testify about statements made by the children. The three children allegedly abused by Wiest testified about the abuse at trial. Osowski, Russell, Roberdeau, and McDonald testified about what the children had said to them about the alleged abuse.

[¶ 4j The jury returned verdicts finding Wiest guilty of three counts of continuous sexual abuse of a child and two counts of terrorizing. Wiest was committed to the custody of the North Dakota Department of Corrections for 20 years on each of the sexual abuse counts and 5 years on each of the terrorizing counts, all to be served consecutively to each other. Wiest appealed from the judgment of conviction.

[¶ 5] On appeal, Wiest contends “the Trial Court abused its discretion in admitting the cumulative hearsay testimony of the medical professionals and law enforcement.”

[¶ 6] Wiest did not object to the testimony by Osowski, Russell, Roberdeau, and McDonald about what the children said to them. Because Wiest did not object to the testimony at trial, our inquiry is limited to determining if its admission into evidence constitutes obvious error affecting substantial rights. E.g., State v. Burke, 2000 ND 25, ¶ 16, 606 N.W.2d 108. ‘We cautiously exercise our power to notice obvious error only in exceptional situations in which a defendant has suffered serious injustice.” State v. Freed, 1999 ND 185, ¶ 14, 599 N.W.2d 858. This is not such a case. Id.

[¶ 7] Rule 803, N.D.R.Ev., provides, in part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(24) Child’s Statement About Sexual Abuse. An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if:
(a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness; and
(b) The child either:
(i) Testifies at the proceedings; or
(ii) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

The provision was adopted in 1990, and was “modeled in part after the Colorado and Utah statutes on a child victim’s out-of-court statement regarding sexual abuse.” Explanatory Note, N.D.R.Ev. 803. The Colorado Court of Appeals has observed that the Colorado statute was enacted “to balance the interests of a person accused of sexual abuse of a child and the interests of the truth-seeking process.” McPeck v. Cobrado Dep’t of Soc. Servs., 919 P.2d 942, 945 (Colo.Ct.App.1996).

[¶ 8] The statements testified to at trial were statements made by children under the age of 12 years about sexual abuse of each of them or witnessed by them. All three children testified at the trial. In State v. Messner, 1998 ND 151, ¶ 15, 583 N.W.2d 109, we said the factors for consideration in assessing the admissibility under N.D.R.Ev. 803(24) of a child’s statement about sexual abuse “include spontaneity and consistent repetition, the mental state of the declarant, the use of terminology unexpected of a child of similar age, and a lack of a motive to fabricate.” Such factors “relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). In ruling on the State’s motion, the trial court specifically referred to State v. Messner in determining the State had met its burden of establishing sufficient guarantees of trustworthiness. We conclude the trial court did not err in ruling the children’s statements were admissible under N.D.R.Ev. 803(24) through testimony by Osowski, Russell, Roberdeau, and McDonald, and, thus, did not commit obvious error.

[¶ 9] Rule 403, N.D.R.Ev., provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

“All relevant evidence is generally admissible under N.D.R.Evid. 402, but relevant evidence may be excluded under N.D.R.Evid. 403 if its probative value is substantially outweighed by the danger of unfairly prejudicing the defendant.” State v. Klein, 1999 ND 76, ¶ 5, 593 N.W.2d 325. A trial court has broad discretion in evi-dentiary matters, and we will not overturn a trial court’s decision to admit or exclude evidence unless the court abuses its discretion. State v. Erickstad, 2000 ND 202, ¶ 34, 620 N.W.2d 136. “A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.” Id.

[¶10] Rule 803(24), N.D.R.Ev., contemplates there will be instances when a child testifies and other witnesses testify about the child’s out-of-court statements to them, as the rule “specifically provides that a child’s out-of-court statements regarding sexual abuse are admissible when the child testifies at trial.” People v. Williams, 899 P.2d 306, 311 (Colo.Ct.App.1995). The Williams court rejected the defendant’s argument a child’s out-of-court statements were inadmissible because they were cumulative and unduly prejudicial, noting “admission of cumulative evidence” and “balancing of probative value against the prejudicial effect of such evidence” under CRE 403 is within the trial court’s discretion. Id. “Cumulative testimony is by definition testimony that would not make a significant contribution to proof of a fact.” State v. Schindele, 540 N.W.2d 139, 142 (N.D.1995). The “mere repetition” of a child’s out-of-court statements “does not make them unduly prejudicial.” People v. Salas, 902 P.2d 398, 401 (Colo.App.1994). “The power to exclude evidence under N.D.R.Evid. 403 should be ‘sparingly exercised.’ ” State v. Klein, 1999 ND 76, ¶ 5, 593 N.W.2d 325 (quoting State v. Ash, 526 N.W.2d 473, 477 (N.D.1995)). From our review of the record, we conclude the trial court did not abuse its discretion in admitting the testimony of medical professionals and law enforcement officers about the childrens’ statements about sexual abuse, and, therefore, did not commit obvious error.

[¶ 11] Affirmed.

[¶ 12] VANDE WALLE, C.J., and SANDSTROM, NEUMANN, and MARING, JJ., concur.

      . Osowski is a forensic interviewer at Med-center One, Russell is a pediatric physician who examined the children, Roberdeau is a police officer, and McDonald is a detective.

      . Wiest's appellate counsel did not try the case. New counsel on appeal is limited to the issues raised in the district court. State v. Zimmerman, 524 N.W.2d 111, 116 (N.D.1994); State v. Berlin, 1999 ND App 1, ¶ 10, 588 N.W.2d 866.


text:
    2001 ND 152
    Renae DOAN and Jerry DOAN, Individually and as parents and next friends of Jayce Doan, a minor child, Plaintiffs and Appellants, v. CITY OF BISMARCK, Damian Dionne, Defendants and Appellees. Kevin Blake and Jan Gustin, Defendants.
    No. 20010042.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      Calvin N. Rolfson (argued) and Brian L. Bergeson (appeared), Rolfson Schulz Ler-vick & Geiermann Law Offices, P.C., Bismarck, ND, for plaintiffs and appellants.
    Randall J. Bakke (argued) and Michael J. Hagburg (on brief), Smith Bakke Hov-land & Oppegard, Bismarck, ND, for defendant and appellee City of Bismarck.
    Curtis L. Wike (argued) and Julie M. Buechler (on brief), Fleck, Mather & Strutz, Bismarck, ND, for defendant and appellee Damian Dionne.
   KAPSNER, Justice.

[¶ 1] Renae and Jerry Doan, individually and as parents of Jayce Doan, (collectively, the “Doans”) appeal from the district court’s grant of summary judgment in favor of the City of Bismarck (“City”) and Damian Dionne. Because genuine issues of material fact exist which preclude an award of summary judgment, we reverse and remand.

I

[¶ 2] On February 12, 1995, the Doans and their three children, Shanda, Jay, and Jayce, attended the Agri International Stock Show (“Agri Show”) at the Bismarck Civic Center, which is owned and operated by the City. Shanda and Jay participated in the Junior Show and Fitting Contest (“Junior Show”), advertised as part of the Agri Show and open to the public. When Renae and two-year-old Jayce were standing in a public walkway between the cattle stalls and washbay, visiting with Shanda and Jay, an 850-pound heifer cow “spooked” while Kevin Blake led the heifer from the washbay to its stall with a rope. Blake let go of the rope, believing he could no longer control the animal. The heifer, owned by Dionne, reared up and twice trampled Renae and Jayce who suffered injuries.

[¶ 3] The Doans filed a negligence claim against the City, Dionne, Blake, and Sutton Rodeos, Inc. (“Sutton”), alleging the Agri Show was sponsored by the City and Sutton. The district court dismissed Sutton, based on a stipulation between Sutton and the Doans. The Doans moved to amend their complaint to remove all claims against Sutton and to add Gustin as a party. The district court granted this motion.

[¶ 4] The City moved for summary judgment, asserting (1) the City had no duty of care to the Doans because it did not exercise control over the area where the Doans were injured and because the City delegated its responsibility to an independent contractor, Jan ■ Gustin; (2) the City was not negligent; (3) the Doans assumed the risk of their injuries; and (4) the City was protected by discretionary immunity from any liability to the Doans. Dionne and Blake joined the City’s motion for summary judgment, arguing the Doans assumed the risk of their injuries because the heifer presented an open and obvious danger.

[¶ 5] The district court awarded summary judgment in favor of the City and Dionne, but denied summary judgment in favor of Blake. The district court determined the City’s actions were not protected by discretionary immunity but, nevertheless, the City did not owe a duty of care to the Doans because it did not control the premises at the time of the injuries and because the City had delegated any responsibility to an independent contractor, Gustin. The district court also concluded Dionne owed no duty to the Doans; however, genuine issues of material fact existed which precluded summary judgment in favor of Blake.

[¶ 6] Subsequently, the Doans settled their claims against Blake and Gustin, who were then dismissed by the district court. The Doans appeal.

11

[¶ 7] We review this appeal under our standards for summary judgment which promptly resolves a controversy on the merits, without a trial, if the evidence demonstrates no genuine issue exists as to any material fact or inferences to be drawn from undisputed material facts and if the evidence shows a party is entitled to judgment as a matter of law. N.D.R.Civ.P. 56(c); Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. Issues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts. Fetch, at ¶ 8. Even undisputed facts do not justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts. Helming v. Helbling, 267 N.W.2d 559, 561 (N.D.1978).

[¶ 8] Whether a trial judge properly granted summary judgment is a question of law which we review de novo on the entire record. Fetch, 2001 ND 48, ¶ 8, 623 N.W.2d 357. The party seeking summary judgment bears the initial burden of showing there is no genuine dispute regarding a material fact. Id. at ¶ 9. We view the evidence in the light most favorable to the party opposing the motion, to whom we give the benefit of all favorable inferences which reasonably can be drawn from the evidence. Id. at ¶ 8. The opposing party may not simply rely on unsupported and conclusory allegations or denials in the pleadings, but must set forth specific facts showing there is a genuine issue for trial. N.D.R.Civ.P. 56(e); Fetch, at ¶ 9.

[¶ 9] We have often held that summary judgment rarely should be granted in negligence cases. Helbling, 267 N.W.2d at 561. By their very nature, negligence claims are usually poor subjects for summary judgment. Latendresse v. Latendresse, 294 N.W.2d 742, 748 (N.D.1980); accord McDowell v. Gillie, 2001 ND 91, ¶ 21, 626 N.W.2d 666 (stating issues involving reasonableness standards generally are inappropriate for disposition by summary judgment).

Ill

[¶ 10] The Doans argue the trial court erred in granting summary judgment in favor of the City as to the negligence claim after finding the City owed no duty to the Doans. Rather, the Doans assert the facts and inferences to be drawn raise genuine material issues regarding the City’s duty of care based on the City’s control of the Agri Show and the Civic Center premises on the date of Doans’ injury, as well as the City’s control over Gustin’s work as the coordinator of the Agri Show. We agree.

A

[¶ 11] The Doans contend the trial court erred in concluding the City owed them no duty based on the court’s ruling the Doans failed to provide credible evidence the City controlled the premises on the date of Doans’ injury. The City claimed it turned over control of the Civic Center at the time of the accident to Gus-tin and the sponsors of the Junior Show.

[¶ 12] To establish an actionable negligence claim, a plaintiff must show a duty exists by the defendant to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty. Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 12, 623 N.W.2d 382. Whether a defendant owes a plaintiff a duty is generally a preliminary question of law for the court to decide; however, if the existence of a duty of care depends on resolving factual issues, then the facts must be resolved by the trier of fact. Pechtl v. Conoco, Inc., 1997 ND 161, ¶ 7, 567 N.W.2d 813.

[¶ 13] Under premises liability law, a property owner must have had control over the property where an injury occurred in order to find the owner owed a duty to an injured party. Stanley v. Turtle Mountain Gas & Oil, Inc., 1997 ND 169, ¶ 9, 567 N.W.2d 345. Thus, control is an essential prerequisite for imposition of premises liability. Id. at ¶ 10. Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Sternberger v. City of Williston, 556 N.W.2d 288, 290 (N.D.1996). The occupier of premises has a right to use the property and to develop it for profit and enjoyment; however, when the occupier conducts dangerous activities or permits dangerous instruments and conditions to exist on premises, the occupier must take reasonable measures to prevent injury to those whose presence on the property reasonably can be foreseen. O’Leary v. Coenen, 251 N.W.2d 746, 752 (N.D.1977).

[¶ 14] There is evidence in the record that the City owns the Civic Center and does business in the name of the Civic Center. Richard Petersen, who was the marketing director for the Civic Center on the date of the accident and who later became general manager of the Civic Center, testified the Civic Center building was designed in part to facilitate the showing of livestock. Petersen indicated the Agri Show was “owned by and managed by” the Civic Center and the City in 1995, the City applied for a trademark for the name of the Agri Show, and the general manager of the Civic Center determined which animals were allowed into the Civic Center. Paul Johnson was manager of the Civic Center at the time of the accident, and the general manager has duties of overseeing the operations of the Civic Center and daily operation of the building. The record includes evidence the City received both rent and revenue from the Agri Show receipts.

[¶ 15] Advertising for the Agri Show included the Junior Show as an event running concurrently with the Agri Show. Income and expense sheets for the Agri Show included items for the Junior Show, and Gustin acknowledged the Junior Show was part of the Agri Show. The judges for the Junior Show were paid staff of the Agri Show. Although the Doans’ injuries occurred after the conclusion of the Junior Show, the heifer cow that trampled the Doans was not part of the Junior Show but part of the Agri Show.

[¶ 16] Viewing the evidence in favor of the Doans, there are triable issues of fact concerning the City’s control of the Civic Center, Agri Show, and Junior Show. See Stanley, 1997 ND 169, ¶ 10, 567 N.W.2d 345 (discussing the centrality of “control” of the property in our premises liability law). From these unresolved factual questions, reasonable persons could draw different inferences and conclusions about whether the City owed the Doans a duty of reasonable care under the circumstances. See McDowell v. Gillie, 2001 ND 91, ¶ 25, 626 N.W.2d 666 (reversing a summary judgment because a reasonable person could draw more than one conclusion from the evidence in the record). We conclude the trial court erred in granting summary judgment in favor of the City after finding the City did not control the premises and did not owe Doans a duty. There .are genuine issues of material fact regarding these issues.

B

[¶ 17] The Doans contend the district court erred in concluding the City owed them no duty of care based on the court’s finding that the City hired Gustin as an independent contractor to coordinate the Agri Show where the Doans were injured. The Doans insist there are relevant unresolved facts regarding whether Gustin was an independent contractor, whether the City retained control over Gustin’s work and the Agri Show, and whether the City could delegate to Gustin the City’s duty to maintain the Civic Center in a reasonably safe condition.

1

[¶ 18] The Doans claim the City clearly retained significant control over Gustin, so Gustin in fact was not an independent contractor. Alternatively, even if Gustin was an independent contractor, the Doans claim the City remained liable for the Doans’ injuries by controlling Gustin’s actions.

[¶ 19] The key question in determining if an individual is an independent contractor or an employee focuses on who is in control. Myers-Weigel Funeral Home v. Job Ins. Div. of Job Serv. N.D., 1998 ND 87, ¶ 9, 578 N.W.2d 125. The employer’s right to direct or control the means and manner of performing the work is dispositive regarding the employee or independent contractor classification, whether or not the right has been exercised. Id. Under the doctrine of respon-deat superior, if an individual is not an independent contractor, agency principles provide that the employer is vicariously liable to third persons for the negligence of the employer’s agent in the transaction of the business of the agency. N.D.C.C. § 3-03-09; Zimprich v. Broekel, 519 N.W.2d 588, 590 (N.D.1994). The underlying rationale for this doctrine is predicated on the employer’s right to control the employee’s conduct. Zimprich, at 591. The question of agency is a fact question for the trier of fact. Gessner v. City of Minot, 1998 ND 157, ¶ 12, 583 N.W.2d 90.

[¶ 20] Generally, an employer is not liable for the negligence of its independent contractor, unless the employer retains control over the independent contractor’s work. Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 14, 623 N.W.2d 382. This doctrine of retained 'control does not impose vicarious liability on an employer of an independent contractor, but creates an independent basis of liability for the employer’s failure to exercise retained control with reasonable care. Id. at ¶ 16. Thus, employers who entrust work to an independent contractor are subject to liability for harm to others for whom the employer owes a duty to exercise reasonable care, if the employer “retains ... control of any part of the work” and causes harm by failing to exercise such control with reasonable care. Id. at ¶ 14 (quoting Restatement (Second) of Torts § 414 (1965)). The degree of retained control necessary to impose a duty on the employer arises only when the employer retains the right to control the method, manner, and operative detail of the work. Rogstad, at ¶ 15. We have explained:

It is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which nee’ not necessarily be followed, or to pra cribe alterations and deviations.... There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in [the contractor’s] own way.

Id. (quoting Restatement (Second) of Torts § 414 cmt. c (1965)). The duty created by § 414 may arise either by an express provision in a contract, retaining for the employer a right to control operative details of the independent contractor’s work, or by the employer’s actual exercise of retained control of the work. Rogstad, at ¶ 16. In Rogstad, we concluded an employer that hired an independent contractor did not owe a duty to provide for the safety of the contractor’s employee because a contract expressly provided the independent contractor retained complete control over its employees and was solely responsible for all means, methods, techniques, sequences, and portions of the work. 623 N.W.2d 382, 2001 ND 54, at ¶¶ 21, 24. We stated such an unambiguous contract is particularly amenable to summary judgment. Id. at ¶ 20. We further concluded the employer did not retain actual control over the scope of work performed by the employee of the independent contractor, even if the employer informed the employee what work to do and periodically checked on the progress of that work. Id. at ¶¶ 25-26; see also Pechtl v. Conoco, Inc., 1997 ND 161, ¶¶ 12, 15, 19, 567 N.W.2d 813 (concluding an employer of an independent contractor did not owe a duty to the contractor’s employee to maintain a safe workplace, because a contract expressly gave the ■ contractor control over the method, manner, and operative details of the work and the employer did not actually direct the contractor or its employee to begin work under adverse conditions which caused the employee’s injury); Kristianson v. Flying J Oil & Gas, Inc., 553 N.W.2d 186, 189 (N.D.1996) (determining an owner did not retain control of an independent contractor’s work and did not owe duty of care to injured contractor’s employee as the owner had “no role” in selecting safety equipment).

[¶ 21] Our review of the record in the light most favorable to the Doans indicates the City hired Gustin to manage and coordinate the Agri Show, but the City had no written contract with Gustin. Gustin testified she thought she should have a signed contract, but she “couldn’t find any record of one” and could not remember signing a contract. When questioned whether there were any written responsibilities set out for her, Gustin replied: “I don’t believe so. I think everything was handled in-in meetings and discussions.” After Gustin listed her duties, she stated she did not actually handle fee payments, “but requested] payment from the Civic Center.” Gustin further testified she “work[ed] with the Civic Center staff within the building for the capabilities of the building and the staff.” When questioned about the difference between her responsibilities and those of the Civic Center, Gustin reported: “I guess we worked so close together that any questions I had on the facility I went to the budding, and it was usually their event coordinator or one of the gentlemen on maintenance. It was basically whoever was on staff.” When asked if she reported to a supervisor on the Civic Center staff, Gustin stated: “Obviously the manager of the building.... Obviously I would take my direction from Dick Petersen.” Gustin acknowledged, “I ultimately worked with Dick [Petersen].” She testified Dick Petersen or Paul Johnson “definitely” gave her direction. The record includes status reports from Gustin to Johnson and Petersen. Furthermore, Gustin’s testimony indicated she could not decide some things on her own, such as major changes or financial decisions, which Gustin worked on together with the City; and she asserted: “It really [was] a team effort.” Gustin acknowledged receiving a 1099 form from the City for her services, and she said the Civic Center, not Gustin, was responsible for hiring and paying bills for the Agri Show.

[¶ 22] We conclude a reasonable person could draw more than one conclusion from the evidence regarding the City’s control of the method, manner, and operative details of Gustin’s work. There is no unambiguous contract relinquishing the City’s control over the Agri Show to Gustin. See Rogstad, 2001 ND 54, ¶ 20, 623 N.W.2d 382 (stating an unambiguous contract is amenable to summary judgment). The record reflects the existence of genuine issues of material fact regarding whether Gustin was an independent contractor or whether the City’s retained control imposed a duty of care to the Doans. See Schultze v. Cont’l Ins. Co., 2000 ND 209, ¶ 6, 619 N.W.2d 510 (indicating summary judgment is improper if there are relevant, unresolved factual issues). In light of this conflicting evidence, we conclude the district court’s grant of summary judgment was improper.

2

[¶ 23] The Doans also argue the City could not delegate to Gustin the oversight of the Agri Show because the City had a nondelegable duty to maintain the Civic Center in a reasonably safe condition when inviting the public into the Civic Center premises. Because we have determined there are numerous factual questions which could potentially result in either direct or vicarious liability for the City on the Doans’ claims, we need not reach the question of the City’s nondelegable duty. See Moszer v. Witt, 2001 ND 30, ¶ 20, 622 N.W.2d 223 (stating an appellate court need not address questions the answers to which are unnecessary to the determination of an appeal).

IV

[¶ 24] The Doans also assert that the district court erred in granting summary judgment in favor of Dionne, after finding Dionne owed no duty to the Doans. We agree with the Doans.

[¶ 25] Generally, whether a defendant owes a plaintiff a duty of care is a preliminary question of law for the court to determine, but if the existence of a duty depends on resolving factual issues, the trier of fact must ascertain the facts. Pechtl v. Conoco, Inc., 1997 ND 161, ¶ 7, 567 N.W.2d 813. In general negligence actions, an actor’s duty is to exercise reasonable care under the circumstances. Johansen v. Anderson, 555 N.W.2d 588, 594 (N.D.1996). The owner of any property must use it with an ordinary degree of care so as not to damage others, exercising caution and reasonable care under the circumstances. Stoeber v. Minneapolis, St. P. & S.S.M. Ry. Co., 40 N.D. 121, 127, 168 N.W. 562, 564 (1918); see also Peterson v. Conlan, 18 N.D. 205, 213, 119 N.W. 367, 370 (1909) (imposing on owners of a bull the common-law duty of exercising due care to protect others, not only from known viciousness, but from the mischievous acts of such animal, which might reasonably be expected from the natural disposition and propensities of animals of this class).

[¶ 26] Reasonable care under the circumstances necessarily includes any specialized knowledge, facts, or skill possessed by the one charged with a duty. Tom Beuchler Constr., Inc. v. City of Williston, 392 N.W.2d 403, 405 (N.D.1986). In negligence actions, customs or practices do not necessarily establish the standard of care, but may be evidence of whether conduct meets the general standard of reasonable care under the circumstances. Id. The ultimate question of whether the actor’s conduct was reasonable is for the fact finder to determine. Johansen, 555 N.W.2d at 594. Moreover, there is a triable issue of fact if different inferences can be drawn from the evidentiary facts permitting the fact finder to conclude the actor’s conduct was not reasonable. Id. Generally, summary judgment is inappropriate for resolving issues involving reasonableness standards. McDowell v. Gillie, 2001 ND 91, ¶ 21, 626 N.W.2d 666; see also Latendresse v. Latendresse, 294 N.W.2d 742, 748 (N.D.1980) (stating negligence claims, by their very nature, are poor subjects for summary judgment, as well as issues involving reasonableness standards, assumption of risk, and related matters).

[¶ 27] An employer is liable for harm to those whom the employer owes a duty to exercise reasonable care, when the harm is caused by an independent contractor hired by that employer, if the employer has retained control of any part of the contractor’s work and caused the harm by failing to exercise such control with reasonable care. Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 14, 623 N.W.2d 382 (citing the Restatement (Second) of Torts § 414 (1965)). Furthermore, if special precautions are not taken, one who employs an independent contractor to do work likely to create a peculiar unreasonable risk of physical harm to others is liable for such harm, unless a contract provides the contractor shall take such precautions or unless the employer exercises reasonable care to provide in some manner for the taking of such precautions. McLean v. Kirby Co., 490 N.W.2d 229, 240 (N.D.1992) (citing Restatement (Second) of Torts § 413 (1965)).

[¶28] The Doans submitted by affidavit their testimony regarding Dionne’s training of the heifer before bringing the animal to the Agri Show. Jerry Doan is a member of the Stockmen’s Association, the sponsor of the Junior Show, and Renae Doan is a member of the North Dakota Cattlewomen and District Five Cattlewomen. The Doans run cattle on their ranch and both actively participate in the family ranching operation. Renae Doan testified: “Animals that are in stock shows are supposed to be trained ... to be shown and that’s one part of training them, is getting them used to being around people and in other environments.” Shanda Doan and Dionne, both of whom train and show cattle, each testified they train cattle prior to cattle shows. Shanda testified she typically trains cattle “[p]robably four to five months” before showing the animals at events. In response to inquiry about how much training the heifer who trampled the Doans was given, Dionne responded: “I guess I couldn’t tell exactly when we started breaking her, but we generally work with these animals from four to six weeks ahead.” Dionne alleged he hired Blake as an independent contractor to transport, groom, show, and take care of the heifer during the Agri Show. According to Dionne, the details, method, and manner of Blake’s work were left to Blake, who “assumed total control and sole responsibility for the heifer.” However, Dionne’s allegations do not include hiring Blake to train the heifer, nor does Dionne argue Blake controlled the heifer’s training. Jerry Doan testified Dionne’s description of his training of the heifer “was very brief and his preparation of the animal must not have been proper or sufficient, because the animal became wild for no apparent reason and seriously injured my wife and young boy.”

[¶ 29] This conflicting testimony raises factual disputes as to the standard of reasonable care for showing cattle, including customs and practices involved in properly training cattle for exhibition in public places. Questions also remain concerning whether Dionne took precautions to prevent unreasonable risk of physical harm to others from his heifer. Viewed in the light most favorable to the Doans, we conclude the evidence raises genuine issues of material fact, and inferences to be drawn from such unresolved facts, regarding Dionne’s duty to exercise reasonable care under the circumstances and whether Dionne breached this duty.

V

[¶ 30] Numerous material issues of fact remain concerning the City’s control of the Agri Show and Dionne’s duty to exercise reasonable care. Summary judgment for the City and Dionne is reversed, and this case is remanded for further proceedings.

[¶ 31] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, JJ„ WILLIAM F. HODNY, S.J., concur.

[¶ 32] The Honorable WILLIAM F. HODNY, S.J., sitting in place of MARING, J., disqualified.