Prelvitz v. Milsop

831 F.2d 806
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 26, 1987
DocketNo. 86-5417
StatusPublished
Cited by10 cases

This text of 831 F.2d 806 (Prelvitz v. Milsop) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prelvitz v. Milsop, 831 F.2d 806 (8th Cir. 1987).

Opinion

ROSS, Circuit Judge.

Ronald Prelvitz appeals from the district court’s1 grant of summary judgment on his action brought pursuant to the Federal Tort Claims Act. Prelvitz’s claim arose from injuries he received in an automobile accident on September 15, 1984. Prelvitz alleged that his injuries were the result of the negligence of a United States Customs Inspector in suggesting an intoxicated driver drive the car in which Prelvitz was riding. For the reasons set forth below, we affirm.

Background

At about 10:30 p.m. on September 14, 1984, Prevlitz and three others, Jeffrey Mil-sop, John Marvin, and Bret Colden, drove in Milsop’s car from Warroad, Minnesota to the Sprague Hotel in Sprague, Manitoba, Canada. There the four drank various amounts of alcoholic beverages.2 After approximately two hours, Colden became obviously intoxicated, was refused further service and was asked to leave. The four bought three twelve packs of beer and headed back to Warroad with Colden driving Milsop’s car.

At approximately 1:00 a.m., the group arrived at the Warroad Port of Entry, where United States Customs Inspector James M. Bishop was on duty. Inspector Bishop recognized the four young men, as they were friends with his son. Inspector Bishop knew that Milsop was a minor. Inspector Bishop approached the car and asked the group whether they had any alcohol to declare. On being informed that they had beer in the trunk, Inspector Bishop told them that someone would have to pay duty on it. All four went into the port of entry office, and Colden paid the duty.

After speaking with Inspector Bishop for approximately fifteen minutes, the group prepared to continue back to Warroad. Upon noticing that Colden was under the influence, Inspector Bishop recommended that he not drive.3 The parties disagree as to whether Inspector Bishop said anything further. However, considering the evidence in the light most favorable to Prelvitz, see Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir.1986), the affidavits show that Inspector Bishop then suggested that Mil-sop drive since it was his car, but did not order him to do so.

The group departed from the port of entry station with Milsop driving. The accident occurred approximately four miles from the station when Milsop attempted to make a right turn. In executing the maneuver, Milsop first swung the car to the left, and then began to turn right. At the same time, an automobile driven by Troy Larson overtook the Milsop vehicle from the rear and attempted to pass on the right side. The Larson vehicle struck the Milsop vehicle in mid-turn. All the occupants of both vehicles, including Prelvitz, were injured.

Blood alcohol tests administered two and one-half hours after the accident showed Colden’s blood alcohol concentration to be 0.13, Milsop’s 0.06, Prelvitz’s 0.04 and Mar[808]*808vin’s 0.03.4 A highway patrolman at the scene of the accident stated that the effects of alcohol on Milsop were obvious.

Prelvitz brought this action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), alleging that Inspector Bishop, in seeking to designate a driver for the group, assumed a duty to protect Prelvitz. Prelvitz further alleged that Inspector Bishop breached this duty in negligently suggesting that Milsop drive. The district court granted the government’s motion for summary judgment, and Prelvitz appeals.

Discussion

Under the Federal Tort Claims Act, the United States is liable for the negligence of its employees under circumstances where a private individual would be liable under the state law where the incident occurred. 28 U.S.C. § 1346(b). Therefore, the question presented in this case is whether under Minnesota law Inspector Bishop owed some duty to protect Prelvitz on the night of the accident, and whether he breached that duty.

The general rule of law in Minnesota is that a person has no common law duty to protect another from injuries from a third person absent some kind of “special relation.” See Andrade v. Ellefson, 391 N.W.2d 836, 841 (Minn.1986). Prelvitz does not attempt to argue that Inspector Bishop had some special duty to protect any of the four young men solely by virtue of Bishop’s position as Customs Inspector. Indeed, Inspector Bishop had no greater duty than a private citizen to assure that the group had a safe ride home.5 Rather, Prelvitz argues that although Inspector Bishop initially had no duty to act, he assumed a “special” duty towards Prelvitz and the others when he took it upon himself to designate which of the group should drive. See Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn.1979).

In Cracraft, the Minnesota Supreme Court set forth the “special duty” doctrine as follows: “once a duty to act for the protection of others is voluntarily assumed, due care must be exercised even though there was no duty to act in the first instance.” Id. Cracraft involved a suit against a city for negligently failing to discover a fire code violation when inspecting a high school. Two students were killed and a third injured when a subsequent explosion occurred because of the fire code violation. Affirming the grant of summary judgment on behalf of the city, the Cracraft court determined that a special duty of care to protect the individual students from fire was not created by the city’s fire inspection. Id. at 807-08. In reaching its decision, the court set forth four factors to be considered in determining whether a special duty has been created or assumed: 1) whether the governmental entity had actual knowledge of the dangerous condition; 2) whether the third person reasonably relied on the government officials’ conduct or representations; 3) whether the governmental entity had a statutory duty to protect a particular class of persons rather than the public as a whole; and 4) whether the government’s action increased the risk of harm. Id. at 806-07.

Applying the Cracraft factors to the instant case, we determine that no special duty to protect the four young men was created or assumed by Inspector Bishop. First, Inspector Bishop had no actual knowledge of the dangerous condition. [809]*809Constructive knowledge is insufficient to impose a special duty. Andrade, supra, 391 N.W.2d at 841. Inspector Bishop testified that he thought Milsop was capable of driving, and therefore he had no actual knowledge that Milsop would not be a safe driver.

Second, there is no indication that Prelvitz relied on Inspector Bishop for appointing a safe driver, thereby foregoing other alternatives for protecting himself. Nor is there evidence that Inspector Bishop made any representation to Prelvitz that he was securing for him a safe ride home.

Nor is the third factor present in this case. Inspector Bishop was under no statutory duty to enforce Minnesota’s driving under the influence laws or to arrest or detain intoxicated drivers.

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831 F.2d 806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prelvitz-v-milsop-ca8-1987.