This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016). STATE OF MINNESOTA IN COURT OF APPEALS A16-0686 Jodi L. Toedter, Trustee for the Heirs and Next of Kin of Susan Ann Gray, Appellant,

vs. Winona County, Respondent, Hiawatha Valley Mental Health Center, Respondent. Filed January 17, 2017 Affirmed Reilly, Judge Winona County District Court File No. 85-CV-15-573 Philip G. Villaume, Jeffrey D. Schiek, Thomas H. Priebe, Villaume & Schiek, P.A., Bloomington, Minnesota (for appellant) James R. Andreen, Erstad & Riemer, P.A ., Minneapolis, Minnesota (for respondent Winona County) Timothy P. Jung, William L. Davidson, Gr ant D. Goerke, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota (for re spondent Hiawatha Valley Mental Health Center) Considered and decided by Bjorkman , Presiding Judge; Co nnolly, Judge; and Reilly, Judge.2 U N P U B L I S H E D O P I N I O N REILLY , JudgeAppellant challenges the district court’s grant of summary judgment in a wrongfuldeath action, arguing that the district court er red by: (1) determining that vicarious official immunity protected respondent co unty; (2) granting judgment in favor of deceased’s health care providers on appellant’s negligence claims for failure to establish a duty of care; and (3) granting judgment against ap pellant on her claim for mutilation of a corpse. We affirm. FACTS This appeal arises out of a wrongful deat h action initiated by appellant Jodi L. Toedter against respondents Winona County a nd Hiawatha Valley Mental Health Center (Hiawatha Valley) following the death of appella nt’s sister, Susan A nn Gray, in September 2013. Gray was born in 1965 and suffered from mental and physical impairments requiring hospitalization. In January 2013, Gray was admitted to a community grou p home, where she remained until June 2013 wh en she was discharged to he r home in Winona County. Houston County, where Gray previously resi ded, remained active in Gray’s care for 60 days following her release from the group ho me and provided case management services to Gray in July and August 2013. A Houst on County social worker assessed Gray and determined that she was eligib le to receive services under the Community Alternatives for Disabled Individuals (CADI) waiver progra m, a voluntary program designed to enable individuals with disabilities to live in their own homes rather th an in institutional care. The Houston County social worker coordinated se veral services for Gray, including medication services, transportation assistance, an emer gency response system or “lifeline,” and3 “tracking” services, which ensured that a c ounty social worker visited Gray’s home on a daily basis to check in on her. Gray’s civ il commitment officially ended on August 8. Gray had “stabilized in the co mmunity” at that point and, at Gray’s request, her Houston County tracking services were withdrawn at that time. Gray was also referred to Hiawatha Valley for an Adult Rehabilitative Mental Health Services (ARMHS) program, which bega n on or around July 23 and was expected to continue for up to 26 weeks. The ARMH S program is a state-certified, medicalassistance-reimbursed service that provides vol untary intensive-case-management services for people with mental-health issues who qualify. Gray me t with an ARMH S worker in July and August, but missed a scheduled appoi ntment in late August and did not respond to her ARMHS worker’s attempt to contact her. The ARMHS wo rker did not consider this unusual because he had the impr ession that Gray did not want to receive services anymore, which he testified “happens re latively often with voluntary se rvices.” The ARMHS worker also testified that Gray previously told him not to come to her home. In September 2013, Gray became an estab lished resident of Winona County and her care transferred from Houston Coun ty to Winona County. Prio r to the transfer, Gray met with her Houston County social worker and a Winona County social work er for a transition meeting. Gray opted to continue using on ly three services in Winona County: busing services, the emergency-response system , and medication management, a voluntary program that permitted Gray to pick up her medications from a county facility on a weekly basis. On September 3, the Winona Coun ty social worker called Gray to discuss scheduling her medication pick-up. Gray did not return the phone call and missed a4 scheduled appointment on September 10. The so cial worker attempted to contact Gray on September 20 and 24 but could not reach her. The social worker di d not consider it “out of the ordinary” for a client not to return ph one calls for two weeks, explaining that in Gray’s case that she knew Gray wa s attending school full time. Appellant attempted to call Gray in late September, but did not reach her. A police officer conducting a welfare check disc overed Gray deceased in her home on September 24. Gray was last seen alive on September 8, and the da te of her death is unknown. The autopsy report listed seve ral immediate causes of death including cardiovascular disease, diabetes mellitus, obesity, a history of hepatitis C, and a history of depressive disorder and borderline personality di sorder with suicidal ideation. Gray’s body also suffered from post-morte m anthropophagy. Following Gray’s death, appellant initiated a wrongful-death action asserting claims against each respondent for negligence, negligence per se, and unlawfu l mutilation of a body. Resp ondents moved for summary judgment, which the district court gran ted. This appeal follows. D E C I S I O N
I. Winona County is en titled to vicarious official immunity.

a. Standard of Review This court reviews a district court’ s summary judgment decision de novo to “determine whether the district court prope rly applied the law and whether there are genuine issues of material fact that preclude summary judgment.” Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC , 790 N.W.2d 167, 17 0 (Minn. 2010) (citation omitted). The evidence is viewed in the light most favorab le to the party against whom judgment was5 granted. Kratzer v. Welsh Cos., LLC , 771 N.W.2d 14, 18 (Minn. 2009). Judgment will be affirmed “if no genuine issues of material fact exist and if th e court below properly applied the law.” Id . Even if we “disagree with the district court’s analysis of some issues, summary judgment will be affirmed if it can be sustained on any grounds.” Allianz Ins. Co. v. PM Servs. of Eden Prairie, Inc ., 691 N.W.2d 79, 82-83 (M inn. App. 2005). The common-law-official immunity doctrineprevents public officials charged by law with duties that call for the exercise of “judgment or discretion from being held personally liable to an i ndividual for damages,” unless the o fficial is guilty of a willful or malicious wrong. Schroeder v. St. Louis Cty ., 708 N.W.2d 497, 505 (Minn. 2006) (quotation omitted). “Official immunity enables public empl oyees to perform their duties effectively, without fear of personal liability that might inhibit the exercise of their independent judgment.” Mumm v. Mornson , 708 N.W.2d 475, 490 (Minn. 2006) (citation omitted). A county social worker qualifies as a pu blic official for purposes of this analysis. Olson v. Ramsey County , 509 N.W.2d 368, 372 (Minn. 1993). If a social worker is protected under the official-immunity doctrine , then the county, as the social worker’s employer, is entitled to share in the employee’ s immunity by way of vicarious official immunity. Id

. Generally, official immunity “turns on: (1) the conduct at issu e; (2) whether the conduct is discretionary or ministerial . . . ; and (3) if discretionary, whether the conduct was willful or malicious.” Kariniemi v. City of Rockford , 882 N.W.2d 593, 600 (Minn. 2016) (quoting Vassallo ex rel. Brown v. Majeski , 842 N.W.2d 456, 462 (Minn. 2014)). Whether immunity applies is a le gal question reviewed de novo. Kariniemi , 882 N.W.2d6 at 599. Winona County, as the party asserti ng immunity, bears the bur den of establishing that the doctrine applies. Meier v. City of Columbia Heights , 686 N.W.2d 858, 863 (Minn. App. 2004), review denied (Minn. Dec. 14, 2004).
b. The conduct at issue involves the c reation of a communi ty-support plan. Because only discretionary decisions are i mmune from suit, “[t]he starting point for analysis of an immunity ques tion is the identification of th e precise governmental conduct at issue,” to determine whether the actions ar e discretionary or mini sterial in nature.
Huttner v. State , 637 N.W.2d 278, 284 (Minn. App. 2001), review denied (Minn. Nov. 13, 2001) (quotation omitted). The co nduct at issue in this case involves the social worker’s creation of, and attempts to finalize, a comm unity-support plan to identify which voluntary CADI services Gray wished to continue in Winona County and to arrange providers for those services.

c. The social worker’s duties w ere discretionary in nature. The next step in an offici al immunity analysis is de termining whether the conduct involves ministerial or discretionary duties. Majeski , 842 N.W.2d at 462. “A discretionary act involves individual professional judgment, reflecting the professional goal and factors of a situation.” Huttner , 637 N.W.2d at 284. By contrast, a ministerial act is “one that is absolute, certain and imperative, involving merely the execu tion of a specific duty arising from fixed and designated facts. A ministerial duty leaves not hing to discretion; it is a simple, definite duty arising under and because of stated conditions.” Mumm , 708 N.W.2d at 490 (citations and q uotations omitted).7 Appellant asserts that the social worker’s acts were ministerial because they “did not require any judgment” on the social worke r’s part. Winona County argues that the social worker’s conduct was discretionary be cause formulating a community-support plan for an individual’s care is a function of the social worker’s professional judgment. We agree with the county . The social worker met with Gray to formulate a community-support plan for her care, coordinate services under the plan, and monitor those services. The Minnesota Supreme Court applie d the doctrine of offi cial immunity to a situation involving si milar conduct. In Olson , the supreme court held that a social worker was protected by common-law official immunity because the formulation of a case plan for a child in need of protection and a determ ination of which services to provide to the family was a discretionary function. 509 N.W.2d at 371-72. The Olson decision stated that designing a suitable case plan “required th e exercise of judgment in determining what services should be provided, who should prov ide them, their frequency, and the nature and extent of agency supervision.” Id . at 372. The Olson court concluded that such activities “involved professional planning at the operational level in the discharge of an assigned governmental duty, and we have no difficulty holding that [d efendant social worker is] protected by official immunity in her formulation of the [c]ase [p]lan.” Id

. Cf. Huttner , 637 N.W.2d at 285 (determining that a social worker’s duty to verify that a client was taking prescribed medication during provisi onal discharge from commitment for a mental illness was not discretionary). Minnesota statutory authority further buttre sses our decision that the social worker’s conduct rests on the exercise of professional judgment. Section 256B .49 provides that a8 “case manager may delegate cert ain aspects of case management services to [other] individuals,” but “may not delegate those aspects which require professional judgment including: (1) finalizing the coordinated serv ice and support plan; (2) ongoing assessment and monitoring of the person’s needs and ade quacy of the approved coordinated service and support plan; and (3) adjustments to the c oordinated service and support plan.” Minn. Stat. § 256B.49, subd. 13 (b)( 1)-(3) (2016) (emphasis added). This provision supports a determination that the legislature considers certain tasks, such as creating a communitysupport plan, assessing a client’s needs under th e plan, and adjusting the plan as necessary, to require the exercise of nondelegable prof essional judgment rather than ministerial execution. That is precisely the conduct at issue here. In light of Olson and Minnesota Statutes section 256B.49, we conclude that the social worker was performing a discretionary function when she worked with Gray on the commun ity-support plan. Because the social worker’s duties were discretionary in nature, she is entitled to official immunity for her actions unless they were willful or malicious.
d. The social worker’s actions were not willful or malicious. The last step of our analysis is determ ining whether the discretionary conduct was willful or malicious. Majeski , 842 N.W.2d at 462. “Discre tionary conduct is . . . not protected if the official committed a willful or malicious wrong.” Elwood v. Rice County , 423 N.W.2d 671, 679 (Minn. 1988). “Mali ce means nothing more than the intentional doing of a wrongful act without legal justification or excu se, or, otherwise stated, the willful violation of a known right.” Rico v. State , 472 N.W.2d 100, 107 (Minn. 1991)9 (citations and quotations omitted). “In the official immun ity context, wilful and malicious are synonymous.” Id . The existence of malice is generally a fact question, Kelly v. City of Minneapolis , 598 N.W.2d 657, 664 n.5 (Minn. 1999), but a reviewing court may dispose of the question as a matter of law if there are no genuine issues of material fact. See Frankson v. Design Space Int’l , 394 N.W.2d 140, 144-45 (Minn. 1986). Appellant argues that the social worker act ed willfully and maliciously by failing to complete the community-support plan before Gray’s death. But willful or malicious conduct in the official immunity cont ext “contemplates something more.” Rico , 472 N.W.2d at 107. The public official “must have reason to kno w that the cha llenged conduct is prohibited,” that is, “the exception anticipates liability only when an official intentionally commits an act that he or she then has reason to believe is prohibited.” Id . The record does not support a willful-or-malic ious finding here. The social worker met with Gray in August to discuss the community-support plan, and attempte d to contact her in September to finalize the plan. The social worker’s supervisor testified that this process requires the cooperation of the client. It is undisputed that the CADI program is voluntary, and Gray was no longer under the terms of a civil commi tment or required by la w to participate. There is not a genuine issue of material fact concerning the existence of willful or malicious conduct on the part of the soci al worker. We therefore conclude that official immunity applies because the conduct at issue was di scretionary and not willful or malicious.

e. Winona County is entitled to vicarious official immunity. Based on our determination th at the social worker is en titled to official immunity, we further determine that Winon a County, as her employer, is entitled to vicarious official10 immunity. See Olson , 509 N.W.2d at 372 (recognizing th at employee’s immunity extends to employer through doctrine of vicarious o fficial immunity). “S ummary judgment is appropriate when a governmental entity has es tablished that its actions are immune from civil liability.” Brown v. City of Bloomington , 706 N.W.2d 519, 522 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006). Therefore, th e district court did not err by granting summary judgment in Wino na County’s favor.
II. Appellant’s negligence claims against Hiawatha Valley fail as a matter of law. 1

a. Hiawatha Valley was not negligent.

“ Negligence is the failure to exercise the level of care that a person of ordinary prudence would exercise under the same or similar circumstances.” Doe 169 v. Brandon , 845 N.W.2d 174, 177 (M inn. 2014). To prevail on a neg ligence claim in a wrongful-death action, a plaintiff must prove: (1) the existenc e of a duty of care, (2) a breach of that duty, (3) a death, and (4) that the bre ach of the duty caused the death. Funchess v. Cecil Newman Corp. , 632 N.W.2d 666, 672 (Minn. 2001). “Su mmary judgment is appropriate when the record lacks proof of any of the four elements” of negligence. Kellogg v. Finnegan , 823 N.W.2d 454, 458 (Minn. App. 2012). The only el ement presented to the court on appeal is the existence of a duty of care. “The existenc e of a legal duty [of care ] is an issue for the court to determine as a matter of law.” Louis v. Louis , 636 N.W.2d 314, 318 (Minn. 2001).

1 Because we determine that Winona County is protected by vicarious official immunity, we do not separately address appellant’s neg ligence claims as asserted against Winona County.11 i. Hiawatha Valley did not owe a duty of care to Gray on the basis of a special relationship. Generally, there is no duty of care to protect another from harm, even when the individual “realizes or should realize that action on [his or her] part is necessary for another’s aid or protection.” Bjerke v. Johnson , 742 N.W.2d 660, 665 (Minn. 2007). However, a duty may be found if “(1) there is a special relationship between the parties; and (2) the risk [of harm] is foreseeable.” Id . A district court considers certain factors when determining whether a sp ecial relationship exists, incl uding “the vulnerability and dependency of the individual, the power exerte d by the defendant, and the degree to which the defendant has deprived the plaintiff of her ordinary means of protection.” Becker v. Mayo Found ., 737 N.W.2d 200, 213 (Min n. 2007). The existence of a special relationship giving rise to a legal duty is an issue of la w that an appellate court reviews de novo. Gilbertson v. Leininger , 599 N.W.2d 127, 130 (Minn. 1999). Appellant argues that Hiawatha Valley owed a duty of care to Gray based upon a special relationship establishe d when Hiawatha Valley agreed to provide ARMHS services to Gray. A special relationship ma y be found in three scenarios: The first arises from the status of the parties, such as parents and children, masters and servants, possessors of land and licensees, and common carriers and their customers. The second arises when an individua l, whether voluntarily or as required by law, has custo dy of another person under circumstances in which that other person is deprived of normal opportunities of self-protection. The third arises when an individual assumes responsibility for a duty that is owed by another individual to a third party. Bjerke , 742 N.W.2d at 665 (citations and quotations omitted).12 None of the Bjerke scenarios apply here. The first sc enario is directed at “parents and children, masters and serv ants, possessors of land and licensees, and common carriers and their customers.” Id. (quotation omitted). Minnesota co urts have also found that a special relationship exists for those “who have custody of a person with dangerous propensities,” Delgado v. Lohmar , 289 N.W.2d 479, 48384 (Min n. 1979), or for daycare providers. Andrade v. Ellefson , 391 N.W.2d 836, 842 (Minn. 1986). Hiawatha Valley does not fit within any of these categories. The second scenario arises when an actor exerts “physical custody or contro l” over another party. Gilbertson , 599 N.W.2d at 131. This relationship is frequently found where an institu tion “such as a hospital or jail has physical custody and control of the person to be protected.” Donaldson v. Young Women’s Christian Ass’n of Duluth , 539 N.W.2d 789, 792 (Minn. 19 95). There is no evidence that Hiawatha Valley exercised physical custody or control over Gray, who engaged in ARMHS services on a voluntary basis and told her ARMHS worker that she wanted to live independently and that he could no t visit her at home. The third Bjerke scenario requires the involvement of at least three parties. See Ironwood Springs Christian Ranch, Inc. v. Walk to Emmaus , 801 N.W.2d 193, 199 (Minn. App. 2011). Because appellant does not allege that respondents assumed a duty owedby Gray to a third person, a special relationship cannot arise out of the third scenario. Appellant argues that the district court ignored an affidavit from her expert, a licensed professional clinical counselor and ARMHS supervisor, who opined that Hiawatha Valley deviated from th e standard of care. Howeve r, an expert affidavit “cannot create a duty [of care] wh ere none exists.” Safeco Ins. Co. of Am. v. Dain Bosworth Inc .,13 531 N.W.2d 867, 873 (Minn. App. 1995), review denied (Minn. July 20, 1995). While the expert states that respondents breached a duty, conclusory statements or promises to produce evidence at trial are not sufficient to create a genuine issue of material fact. See Nicollet Restoration, Inc. v. City of St. Paul , 533 N.W.2d 845, 848 (Mi nn. 1995). To resist summary judgment, appellant must do more th an “rest on mere averments” that a duty existed and that Hiawatha Valley violated that duty. DLH, Inc. v. Russ , 566 N.W.2d 60, 71 (Minn. 1997). The expert affidavit does not create a question of material fact regarding the existence of a special relationshi p between Hiawatha Valley and Gray. Based upon our de novo review, we de termine that there was not a special relationship between Hiawatha Valley and Gray under any of the three Bjerke scenarios and Hiawatha Valley was entitled to summary judgment as a matter of law. And because we determine as a matter of law that a special relationship does not exis t, we do not consider whether the risk of harm to Gray was foreseeable. See Bjerke , 742 N.W.2d at 665 (requiring presence of both elements). ii. Hiawatha Valley did not owe Gray a duty of care un der a contract theory of negligence. Alternatively, appellant argues that it is not necessary to show a special relationship between Hiawatha Valley and Gray because a c ontractual duty of care existed. Appellant relies on Lundgren v. Fultz , 354 N.W.2d 25, 26-27 (Minn. 1984) for the pr inciple that Hiawatha Valley owed a “professional duty” to Gray. Lundgren is inapposite. Lundgren addressed whether a psychiatri st had a duty to control the conduct of a third person to prevent injury to another. Id

. Lundgren states that whether a duty exists to control the14 conduct of a third person depends upon whether a “special relationship” exists between the professional and the third person, and whether the harm was foreseeable. Id . at 27. That factual situation is not present here. Appellanthas not established a viable cause of action for negligence based on an alle ged breach of a contractua l duty of care and summary judgment was appropriate.
b. Hiawatha Valley is not liable under a theory of negligence per se. “[N]egligence per se is a form of ordinary negligence that results from violation of
a statute.” Johnson v. Paynesville Fa rmers Union Co-op. Oil Co ., 817 N.W.2d 693, 706 (Minn. 2012) (quotations omitted). The diffe rence between negligence and negligence per se is that in the latte r theory, “a statutory duty of care is substituted for the ordinary prudent person standard such that a violation of a statute is conclusive eviden ce of duty and breach.” Id . (quotation omitted). “[B]reach of a statute gi ves rise to negligence per se if [(1)] the person harmed by [the statutory violation is] within the inte nded protection of the statute and [(2)] the harm suffered is of the type the legislati on was intended to prevent.” Alderman’s Inc. v. Shanks , 536 N.W.2d 4, 8 (Minn. 1995) (quotation omitted). Because the statute “imposes a fi xed duty of care, . . . its breach constitutes c onclusive evidence of negligence.” Id

. Here, appellant’s negligence per se claim against Hiawatha Valley fails as a matter of law because appellant has not identified a statute which imposes a duty upon Hiawatha Valley. Appellant argues that Hiawatha Valle y violated sections 256B.0623, subdivisions 2(a) and 2(a)(1), by failing to hold weekly mee tings with Gray and by failing to help her during a crisis situation. See Minn. Stat. § 256B.0623, subds. 2(a), 2(a)(1) (2016). Chapter15 256B provides for medical assi stance for needy persons, and section 256B.0623 establishes adult rehabilitative-mental-health-service cove rage, including the scope of the program, the definition section, eligibility requireme nts, and provider entity standards. See Minn. Stat. § 256B.0623, subds. 1-4 (201 6). The subdivisions appellant references fall within the definitional section of the statute. See id ., subds. 2(a), 2(a)(1). Rather than imposing a statutory duty to host weekly meetings or help in emergency situations, this section merely defines “adult rehabilitative me ntal health services.” Id. Appellant cannot satisfy the negligence per se factors and we therefore conclu de that the district court properly granted summary judgment with respect to appellant’s negligence pe r se claim against Hiawatha Valley.
III. Respondents are entitled to summary judgment on appellant’s wrongfulmutilation claim. A cause of action may lie in tort where the willful and neg ligent conduct of a defendant leads to the disfi gurement of a dead body. Lindh v. Great N. Ry. Co ., 99 Minn. 408, 409-10, 109 N.W. 823, 824 (1906). However, Mi nnesota courts have limited recognition of this cause of ac tion to those instances in whic h the wrongdoing party is in actual possession of the dead body. See, e.g. , Sworski v. Simons , 208 Minn. 201, 207-08, 293 N.W. 309, 311-12 (1940) (c oroner in possession of body); Kingsley v. Forsyth , 192 Minn. 468, 469-70, 257 N.W. 95, 96-97 (193 4) (deputy coroner in possession of body); Larson v. Chase , 47 Minn. 307, 307, 50 N.W. 238, 238 (1891) (remains of body in tortfeasor’s custody).16 We are sympathetic to the loss that a ppellant no doubt suffered on account of her sister’s death and the manner in which he r body was found. However, because it is uncontested that respondents we re not in possession of Gray ’s body following her death, the district court did not err in granting summary judgment in respondents’ favor on appellant’s mutilation claim. See Lubbers v. Anderson , 539 N.W.2d 398, 401 (Minn. 1995) (holding that summary disposition is appropriate when “the record reflects a complete lack of proof on an essential element of the plaintiff’s claim”). Affirmed.