Opinion
No. C0-98-2169.
Filed August 17, 1999.
Appeal from the District Court, St. Louis County, File No. C097300445.
Pamela Marie Miller, William J. Mavity, (for appellants)
Joseph J. Roby Jr., Laura J. Schacht, (for respondent Mesabi Regional Medical Center)
Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Lansing, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
After an adverse jury verdict, appellants Roseann Williams and Lora Anderson challenge: (1) the trial court's grant of partial summary judgment on their vicarious liability, negligent supervision, and negligent and intentional infliction of emotional distress claims; (2) several evidentiary rulings; (3) certain jury instructions; and (4) the trial court's refusal to grant a new trial. We affirm.
FACTS
Appellants Roseann Williams and Lora Anderson were employed as nurses at Mesabi Regional Medical Center (Mesabi) at all times relevant to this litigation. In 1994 and 1995, John Parson, another nurse at Mesabi, inappropriately touched Anderson. On August 14, 1995, Parson inappropriately touched Williams. Shortly after this incident took place Williams reported the incident to her supervisor, Sue Jamar. Anderson, along with several other women, then came forward with stories relating to Parson's inappropriate behavior at the hospital.
Upon learning of Parson's inappropriate conduct, Mesabi placed Parson on unpaid leave. On August 24, 1995, Parson resigned his employment with the hospital. Appellants brought suit against Parson and Mesabi. Prior to trial, the district court granted partial summary judgment in favor of Mesabi. This appeal follows a jury trial in which the jury found that Mesabi was not negligent and appellants did not sustain any damages.
DECISION I.
On appeal from a grant of summary judgment appellate courts review the record to determine whether there are any genuine issues of material fact and whether the [district] court erred in its application of the law.
Hedglin v. City of Willmar , 582 N.W.2d 897, 901 (Minn. 1998). This court looks upon the evidence "in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).
A.
Appellants contend the trial court erred by granting summary judgment on appellants' assault and battery claims against Mesabi and by dismissing appellants' negligent supervision claim before submitting the case to the jury. Mesabi's liability for these claims, if any, is of a vicarious nature. Bruchas v. Preventative Care, Inc. , 553 N.W.2d 440, 443 (Minn.App. 1996). But "[f]or respondeat superior to lie * * * the actor must be within the scope of the employment by the employer." Leaon v. Washington County , 397 N.W.2d 867, 874 (Minn. 1986).
In Minnesota, liability is imposed on the employer when it is established that the employee's acts were motivated by a desire to further the employer's business. Lange v. National Biscuit Co. , 297 Minn. 399, 401, 211 N.W.2d 783, 784 (Minn. 1973). An employer is liable for an assault perpetrated by its employee when the attack "is related to the duties of the employee and the assault occurs within work-related limits of time and place." Id. at 404, 211 N.W.2d at 786.
Here, Parson's assaults occurred at work, but Parson did not inappropriately touch appellants in an attempt to help them lift patients or perform some other hospital service. Instead, the record supports the conclusion that Parson strayed from his hospital duties in order to further his own desires and Parson did not use his position as a nurse to further his own objectives in the sense discussed by the court in Marston v. Minneapolis Clinic of Psychiatry Neurology, Ltd. , 329 N.W.2d 306, 310-11 (Minn. 1982) (employer may be liable where psychiatrist used his position as a psychiatrist to manipulate patients into sexual relations). Cf. P.L. v. Aubert , 545 N.W.2d 666, 668 (Minn. 1996) (no vicarious liability for school district where teacher had unforeseeable sexual relations with student at school during school hours). We conclude that the trial court did not err in concluding that Parson was not acting within the scope of his employment with Mesabi, and therefore Mesabi is not liable for Parson's assaults.
B.
Appellants contend the trial court erred by granting summary judgment on appellants' negligent and intentional infliction of emotional distress claims. In order for an intentional infliction of emotional distress claim to be actionable, the conduct must be "extreme and outrageous, so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community." Haagenson v. National Farmers Union Property Cas. Co. , 277 N.W.2d 648, 652-53 n. 3 (Minn. 1979) (citation omitted). The record indicates that if Mesabi is liable at all, it is for not thoroughly investigating allegations regarding Parson's prior conduct. But when viewed in the light most favorable to appellants, Mesabi's act of not thoroughly investigating allegations is not extreme and outrageous or outside the boundaries of decency.
To sustain a negligent infliction of emotional distress claim a plaintiff must show that he or she "suffered severe emotional distress with attendant physical manifestations." K.A.C. v. Benson , 527 N.W.2d 553, 557 (Minn. 1995). Emotional distress is severe if "no reasonable [person] could be expected to endure it." Iacona v. Schrupp , 521 N.W.2d 70, 73 (Minn.App. 1994) (quotation omitted). Here, appellants testified that they were bothered by Parson's conduct, but their testimony fails to show that they suffered severe emotional distress with attendant physical manifestations. We conclude that the trial court did not err by granting summary judgment on appellants' negligent and intentional infliction of emotional distress claims.
II.
Appellants moved the trial court to allow amendment of their complaint and contend the trial court erred by denying this motion. But appellants failed to include arguments on this issue within the statutory limit of 50 pages. See Minn.R.Civ.App.P. 132.01, subd. 3 (setting forth page limits). Thus, we decline to address this issue and grant Mesabi's motion to strike. See Melina v. Chaplin , 327 N.W.2d 19, 20 (Minn. 1982) (holding that issues not argued in briefs are deemed waived).
III.
Appellants contend the trial court abused its discretion by making several incorrect evidentiary rulings. Absent a clear abuse of discretion, a trial court's evidentiary rulings will not be disturbed. Alevizos v. Metropolitan Airports Comm'n of Minneapolis Saint Paul , 452 N.W.2d 492, 500 (Minn.App. 1990), review denied (Minn. May 11, 1990). Even if this court concludes that the trial court made an erroneous evidentiary ruling, a new trial will not be granted unless it appears that the admission of the evidence might reasonably have changed the result of the trial. Id.
A.
Appellants maintain that the trial court abused its discretion by allowing the testimony of Carol Scott relating T.M.'s out-of-court statements because the testimony was hearsay. While Scott's testimony may have been hearsay, her testimony was subject to a hearsay exception. See Minn.R.Evid. 804(b)(3) (stating that even though presented as hearsay, statement against interest is admissible if declarant is unavailable as a witness).
Appellants contend that Scott's testimony should have been excluded because it was more prejudicial than probative. See Minn.R.Evid. 403 (providing for exclusion on grounds of prejudice). The record reveals that Scott's testimony of what T.M. told her was relevant to the issue of whether Mesabi's allegedly negligent actions caused appellants' injuries. Because the probative value of Scott's testimony was not substantially outweighed by its prejudicial effect, the trial court did not abuse its discretion by allowing Scott's testimony.
B.
Appellants contend they are entitled to a new trial, arguing that the trial court abused its discretion by admitting certain testimony of John Berland relating Scott's statements of what T.M. said. At trial, Scott testified to statements by T.M. that were similar to the statements ascribed by Berland to T.M. Further, both Scott's and Berland's testimony was offered to cast doubt on the truth of T.M.'s initial complaint. Thus, because Berland's testimony was largely repetitive of Scott's testimony, even if the trial court did abuse its discretion by allowing Berland's testimony, we conclude that the admission of this evidence did not have a prejudicial effect on the result of the trial.
C.
Appellants contend the trial court abused its discretion on several other evidentiary rulings. First, appellants argue that the trial court abused its discretion by refusing to admit evidence of a reporting obligation under the Vulnerable Adults Act (VAA), Minn. Stat. § 626.557 (1998). But because the hospital's knowledge of abuse was not supported by sufficiently strong circumstances to trigger the reporting requirement under the VAA, we conclude that the trial court did not abuse its discretion by refusing to admit evidence of a reporting obligation. See Wall v. Fairview Hosp. Healthcare Servs. , 584 N.W.2d 395, 406 (Minn. 1998) (stating that the VAA mandates reporting only when the suspicion of wrongdoing is "supported by sufficiently strong circumstances").
Second, appellants contend that the trial court abused its discretion by refusing to admit evidence of: (1) Mesabi's failure to prevent another hospital from hiring Parson; and (2) Parson's subsequent assault of another woman at the other hospital. We conclude that the danger of unfair prejudice outweighed the probative value of this evidence and the trial court did not abuse its discretion by refusing to admit the evidence.
Third, appellants argue that the trial court abused its discretion by excluding expert testimony on certain damages related to Mesabi's post-assault activities. Because appellants did not bring a cause of action related to Mesabi's post-assault activities, we conclude that the trial court did not abuse its discretion by refusing to admit this testimony.
Finally, appellants contend that the trial court abused its discretion by allowing evidence of past events in Williams's life. Because appellants asked for emotional distress damages, evidence of past events in Williams's life indicating that her emotional distress may not have resulted from Parson's conduct was hence relevant to this issue. We conclude that the trial court did not abuse its discretion by refusing to admit this evidence.
IV.
Appellants contend the trial court abused its discretion in instructing the jury and in constructing jury questions. But appellants completely failed to object to the jury instructions and lodged only one objection to the jury questions. A failure to object to the verdict form before submission to the jury constitutes a waiver of a party's right to object on appeal. Kath v. Burlington Northern Rail Co. , 441 N.W.2d 569, 572 (Minn.App. 1989) , review denied (Minn. July 27, 1989). Therefore, we conclude that appellants have waived these issues to the extent they did not object.
As for the issue to which appellants did object, appellants requested that the trial court ask the jury whether appellants "were placed in apprehension of being physically harmed" rather than whether appellants were threatened with physical injury. But the specific "wording of the special verdict form is left to the discretion of the trial court." Covey v. Detroit Lakes Printing Co. , 490 N.W.2d 138, 142 (Minn.App. 1992) (citation omitted). "[A]ll that is required is that the charge as a whole convey to the jury a clear and correct understanding of the law." Benson v. Northwest Airlines, Inc. , 561 N.W.2d 530, 539 (Minn.App. 1997), review denied (Minn. June 11, 1997). We conclude that the difference between "apprehension" and "threat" is minimal and the trial court acted within its discretion by using "threat."
V.
Appellants maintain the trial court abused its discretion by refusing to grant a new trial because the jury's finding of no damages was against the weight of the evidence. See Minn.R.Civ.P. 59.01, subds. e, g. (providing grounds for granting a new trial). The decision to grant a new trial lies "within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion." Halla Nursery, Inc. v. Baumann-Furrie Co. , 454 N.W.2d 905, 910 (Minn. 1990). The "assessment of damages is the peculiar province of the jury." Verhel by Verhel v. Independent School Dist. No. 709 , 359 N.W.2d 579, 592 (Minn. 1984) (quotation omitted). Moreover, when the jury has found that there is no liability on the part of the defendant, and that finding is supported by credible evidence, "the denial of damages * * * does not necessarily show prejudice or render the verdict perverse". Otterness v. Horsley , 263 N.W.2d 403, 405 (Minn. 1978) (quotation omitted).
Here, the jury found that Mesabi was not negligent and this finding is supported by credible evidence: Sue Jamar testified that she investigated T.M.'s report and did not know of any other improprieties involving Parson until after appellants' problems came to light. We conclude that the trial court did not abuse its discretion by refusing to grant a new trial.
Affirmed.
I concur in the majority's holding insofar as it affirms the dismissal of the respondeat superior claims for assault and battery and for negligent and intentional infliction of emotional distress. I also agree that the issue relating to the amendment of the complaint is insufficiently presented to invoke appellate review. But because the district court erred as a matter of law in dismissing the negligent supervision claim and in several key evidentiary rulings relating to that claim and the negligent retention claim, I would reverse and remand both claims for trial.
The district court dismissed the negligent supervision claim before submitting the case to the jury. The majority affirms the dismissal, stating Mesabi's liability for the claim is of a vicarious nature and concluding that the hospital cannot be liable for a negligent supervision claim because nurse Parson was not acting within the scope of his employment when he committed the sexual misconduct against nurse Williams and nurse Anderson. The majority fails to distinguish the analysis of the respondeat superior claim for assault and battery, which imposes vicarious liability, and the analysis of the negligent supervision claim, which imposes direct liability.
A tort-theory negligent supervision claim is not based on vicarious liability but direct liability. See Ponticas v. K.M.S. Invs. , 331 N.W.2d 907, 911 n. 5 (Minn. 1983) (distinguishing direct liability imposed under negligent hiring from vicarious liability imposed under respondeat superior); Marston v. Minneapolis Clinic of Psychiatry Neurology, Ltd. , 329 N.W.2d 306, 307 (Minn. 1982) (stating jury had found defendant "not liable under respondeat superior or directly for negligence in supervising" employee tortfeasor); M.L. v. Magnuson , 531 N.W.2d 849, 856 n. 3 (Minn.App. 1995) (distinguishing direct liability under "negligent employment theories," including negligent supervision, from vicarious liability under respondeat superior). Negligent supervision "is directed at an employer's duty to control his or her employee's physical conduct while on the employer's premises or while using the employer's chattels." Semrad v. Edina Realty, Inc. , 493 N.W.2d 528, 534 (Minn. 1992). To prevail, a plaintiff must prove "that the employee's conduct was foreseeable and that the employer failed to exercise ordinary care when supervising the employee." Oslin v. State , 543 N.W.2d 408, 415 (Minn.App. 1996) (citations omitted), review denied (Minn. Apr. 1, 1996).
Negligent supervision claims arise from employee acts that either occur on the employer's premises or are committed while using the employer's chattels. Semrad , 493 N.W.2d at 534; Restatement (Second) of Torts § 317 (1965) (defining master's duty to control a servant's conduct). In contrast to a respondeat superior claim, a tort-theory negligent supervision claim does not require that the employee act within the scope of employment or even that the act be related to the employee's duties. See Semrad , 493 N.W.2d at 534 (thrust of tort-theory negligent supervision is employer's duty to control their employees, "even when the employee is acting outside the scope of employment, in order to prevent intentional or negligent infliction of personal injury"); Restatement (Second) of Torts § 317 (employer "is under a duty to exercise reasonable care so as to control his [employee] while acting outside the scope of his employment as to prevent him from intentionally harming others"). The majority and district court err, as a matter of law, by denying the plaintiffs claims because Parson was acting outside of his "scope of employment." At issue under negligent supervision is not whether the employee acted within the scope of the employee's duties, but rather whether the employer provided "reasonable measures of supervision" and whether the employer adequately considered the safety and welfare of the persons who interact with their employees on their premises. P.L. v. Aubert , 545 N.W.2d 666, 668 (Minn. 1996).
The majority's analysis also erroneously incorporates a motivation requirement in negligent supervision claims by stating "liability is imposed on the employer when it is established that the employee's acts were motivated by a desire to further the employer's business." (citing Lange v. National Biscuit Co. , 297 Minn. 399, 401, 211 N.W.2d 783, 784 (Minn. 1973)). Negligent supervision does not involve the employee's motivation; the direct liability under negligent supervision is based on the employer's failure to exercise reasonable care in supervising the employee.
Further, the majority's analysis misconstrues the requirements for a respondeat superior claim because "the employee's motivation should not be a consideration for the imposition of vicarious liability." Marston , 329 N.W.2d at 311. Indeed, in Lange , the supreme court recognized the "inherent inconsistency" of requiring the employee to be motivated by a desire to further the employer's business, 297 Minn. at 402, 211 N.W.2d at 784, and stated "the focus should be on the basis of the [tort] rather than the motivation of the employee," id. at 403, 211 N.W.2d at 785 (emphasis added). See Fahrendorff v. North Homes, Inc. , ___ N.W.2d ___, ___, 1999 WL 570971 at *6 (Minn. Aug. 5, 1999) ("just because an employee's ultimate actions may be motivated by personal gratification and prohibited by the employer does not mean that those actions fall outside the scope of employment as a matter of law") (citation omitted); Marston , 329 N.W.2d at 311 ("it would be a rare situation where [an employee's] wrongful act would actually further an employer's business"). By asserting Parson "strayed from his hospital duties in order to further his own desires" the majority's analysis erroneously focuses on the employee's motivation.
Sexual harassment and sexual assault are unlikely to ever be within the scope of an employee's duties, and Minnesota's courts have not dismissed negligent supervision claims on this basis before. See P.L. , 545 N.W.2d at 668 (affirming dismissal of negligent supervision claim, based on teacher's sexual conduct, on other grounds); Bruchas v. Preventive Care, Inc. , 553 N.W.2d 440, 443 (Minn.App. 1996) (affirming grant of judgment notwithstanding the verdict for employer for negligent supervision claim, based on employer's alleged sexual harassment, on other grounds); Oslin , 543 N.W.2d at 415 (affirming dismissal of negligent supervision claim based, on sexual harassment in workplace, on other grounds). It is undisputed that Parson's assaults occurred on Mesabi's premises. Based on the 1992 patient complaint, Mesabi was on notice of an earlier assault by nurse Parson, and his actions may have been foreseeable. Whether his actions were foreseeable and whether Mesabi supervised Parson in a reasonable manner in accord with the standard set out in P.L. are issues of fact for the jury.
II
Four of the district court's evidentiary rulings relating directly to elements of negligent supervision and negligent retention are either errors of law or an abuse of discretion and should be reversed. See Uselman v. Uselman , 464 N.W.2d 130, 138 (Minn. 1990) (district court's evidentiary rulings will not be disturbed unless based on an erroneous view of the law or constitute an abuse of discretion).
First, the district court permitted evidence undermining the report of T.M., a patient, who reported nurse Parson's sexual misconduct in 1992. Mesabi acknowledged that it had received the complaint and conducted an investigation with inconclusive results. The district court allowed testimony from Carol Scott, a social acquaintance of T.M., who testified that the patient told her she "could make some money out of this" and that there was no way for Mesabi "to know whether he was just massaging my back" and that she "could claim that [Parson] had done other things." But the social acquaintance had not talked to the patient until nine months after the patient reported the misconduct, and there is no indication that Mesabi knew of or relied on the statement in conducting its investigation into the report.
Moreover, Scott's testimony seeks to belatedly determine whether T.M.'s complaint was completely truthful, an issue that is not subject to proof in this case and is collateral to the issue of notice. Smith v. Whittier , 30 P. 529, 532 (Cal. 1892) (if the issue is a party's knowledge or notice, whether "information was or was not correct is immaterial for the purpose of determining its admissibility"). Thus, Scott's testimony is hearsay, see Minn.R.Evid. 801(c), and is inadmissible except as provided in the rules of evidence, Minn.R.Evid. 802. The majority indicates that if Scott's testimony was hearsay, it would be admissible as a statement against T.M.'s interest under rule 804(b)(3). But neither T.M.'s interests nor the truth of T.M.'s complaint are at issue; Mesabi's notice of Parson's actions is at issue. No exception applies, and therefore the district court's admitting the evidence on the issue of "notice" was prejudicial error. Similarly, John Berland's testimony of a telephone conversation with Scott about the purported statements of the patient was double hearsay, to which no exception applies.
The third erroneous evidentiary ruling excluded evidence offered by the respondents on the agreement between Mesabi and Parson for Parson's resignation. Three days after Williams reported Parson's assault, Mesabi and Parson entered into a resignation agreement. Under the agreement, Mesabi agreed to give Parson a letter that stated he "has not been the subject of any disciplinary action," and to keep the reasons for his resignation confidential in exchange for Parson agreeing to resign voluntarily. In addition, Parson's supervisor told him she would give him a good recommendation if a prospective employer called. The district court allowed the evidence that Parson resigned three days after the assault, but excluded the other evidence.
An employer's rapid investigation, suspension, or termination of an employee are evidence favorable to the employer in negligent-retention and negligent-supervision claims. See Kresko v. Rulli , 432 N.W.2d 764, 770 (Minn.App. 1988), review denied (Minn. Jan. 31, 1989). Because the employer's actions are at issue, all of its conduct involving the allegedly dangerous employee is relevant. In its opening statement, the hospital said that in "less than four days [of his assault on Williams], John Parson was out of the hospital for good" and that because it was a unionized situation, the hospital allowed him "to resign in lieu of discharge." The employer's response is an issue of fact, and the district court should have allowed the jury to consider all of the evidence relating to Mesabi's response.
Mesabi asserts that its agreement with Parson is inadmissible under Minn.R.Evid. 408. Rule 408 provides that offering, promising, or accepting valuable consideration "to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount." The agreement between Parson and Mesabi did not involve a claim against either Parson or Mesabi; rather, it involved the conditions under which Parson would immediately resign. Thus, rule 408 does not apply.
The fourth erroneous evidentiary ruling was testimony of Mesabi's psychologist that Williams who, prior to 1985, had been the victim of physical abuse, had physically abused an ex-husband in an altercation, had abused alcohol, and had talked "a little bit about some cannabis and cocaine." The district court should have excluded the evidence because its danger of unfair prejudice substantially outweighed its probative value. See Minn.R.Evid. 403; Nichols v. American Nat'l Ins. Co. , 154 F.3d 875, 884-85 (8th Cir. 1998) (evidence of plaintiff's abortion, which was not connected to plaintiff's emotional distress and which occurred six years before events at issue, was too remote in time and of little probative value); Jenson v. Eveleth Taconite Co. , 130 F.3d 1287, 1292-93 (8th Cir. 1997) (evidence of appellants' personal background, including domestic abuse, generally not relevant and too remote in time), cert. denied , 118 S.Ct. 2370 (1998). Mesabi's psychologist also testified that because Williams had sought psychological help for her earlier problems, "if there had been a severe reaction to [Parson's assault], she would have sought help." The district court should have excluded this because it was character evidence used "for the purpose of proving action in conformity therewith on a particular occasion." Minn.R.Evid. 404(a). This evidence was obviously prejudicial, had little, if any, probative value on the issue of mental distress ten years after the event, and should have been excluded.
I concur with the majority's conclusion that the district court properly excluded evidence that another medical facility hired Parson after his resignation from Mesabi and that he committed a sexual assault at that facility. I also concur that the district court properly excluded appellant's expert's testimony that Williams experienced emotional distress based on a fear that Parson would be hired and hurt someone else.
III
Finally, I believe the district court erred in its jury instruction on physical harm. Although the appellants failed to object, the issue is relevant in a new trial and should be addressed. See Minn.R.Civ.App.P. 103.04 (appellate court may "review any other matter as the interest of justice may require"). On the issue of physical harm, the district court instructed the jury:
To prevail on their claims, plaintiffs must prove by a greater weight of the evidence that they received a physical injury or were threatened with physical injury. A threat of bodily injury may include a spoken threat or threatening conduct. Merely being uncomfortable around someone or fearing for your job is not a threat of physical injury.
Mesabi does not dispute the assaults on Williams and Anderson. Parson assaulted Williams by grabbing her breasts, holding her breasts, and pinning her so that she could feel "his erect penis pushing against [her] body." Parson assaulted Anderson on one occasion by pinning her to a bed and pushing "his groin area and that against [her] lower back and buttocks" and, on a later occasion, by running his hands underneath her shirt, up her shirt, down and then "slid his fingers down the top, the front part of [her] pants, and touched the upper part of [her] pubic hair."
In negligent supervision and negligent retention actions involving sexual harassment or sexual assault, the jury should be instructed that physical injury also includes the apprehension of physical injury. Grozdanich v. Leisure Hills Health Ctr., Inc. , 25 F. Supp.2d 953, 980 (D.Minn. 1998) ("Employment based sexual harassment involves enough of a threat of physical injury to permit a negligent retention claim."); Thompson v. Olsten Kimberly Qualitycare, Inc. , 980 F. Supp. 1035, 1041 (D.Minn. 1997) (negligent supervision and negligent retention require "at least a threat, or reasonable apprehension of actual physical injury"); Mandy v. Minnesota Mining Mfg. , 940 F. Supp. 1463, 1471-72 (D.Minn. 1996) (physical acts of sexual misconduct "are sufficient to satisfy any requirement of a threat of physical injury"). This accords with the section of the Restatement of Torts cited by Semrad v. Edina Realty, Inc. , which requires only an unreasonable risk of bodily harm. Restatement (Second) of Torts § 317 (employer under duty to prevent employee from "conducting himself as to create an unreasonable risk of bodily harm"), quoted by Semrad , 493 N.W.2d at 534; see also Porter v. Grennan Bakeries, Inc. , 219 Minn. 14, 22, 16 N.W.2d 906, 910 (1944) (liability rests upon "exposing others to unreasonable risk of injury") (citation omitted).
Furthermore, the conduct described by Williams and Anderson is conduct that is defined as criminal sexual conduct under Minn. Stat. §§ 609.342-.3451 (1998). The supreme court has held a physical injury is implicit in sexual misconduct described by these statutes. See W.J.L. v. Bugge , 573 N.W.2d 677, 681 (Minn. 1998) ("implicit in the act of sexual abuse is personal injury"); Blackowiak v. Kemp , 546 N.W.2d 1, 3 (Minn. 1996) ("as a matter of law one is `injured' if one is sexually abused"). The standard of an unreasonable risk of bodily harm is best reflected in an instruction that allows physical injury based on a plaintiff's reasonable apprehension of bodily harm. For these reasons, I would reverse and remand for trial the issues of negligent retention and negligent supervision.