United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1553

___________

Delvin E. Gylten; Doris E. Gylten, *

*

Plaintiffs-Appellants, *

*

v. * Appeal from the United States

* District Court for the

Timothy Jon Swalboski, Sr., * District of Minnesota.

individually, and as a parent of *

Timothy Jon Swalboski, Jr., a minor; *

Timothy Jon Swalboski, Jr., *

individually, *

*

Defendants, *

*

Climax Independent School *

District No. 592; Fisher Independent *

School District No. 600, *

*

Defendants-Appellees. *

___________

Submitted: October 12, 2000

Filed: April 24, 2001

___________

Before BYE, BRIGHT, and MAGILL, Circuit Judges.

___________
1The Honorable Ann D. Montgomery, United States District Judge for the

District of Minnesota.

-2-

BRIGHT, Circuit Judge.

Delvin and Doris Gylten appeal from the district court's1 summary judgment of

dismissal of their actions against Fisher Independent School District ("Fisher") and

Climax Independent School District ("Climax"), on the Gyltens' claims of negligence

in this diversity action. We affirm.

I. Background

Fisher and Climax cosponsor one high school football team pursuant to a

cooperative agreement drafted in 1984. The team alternates practice locations between

the two schools located about fifteen miles apart in northwestern Minnesota. The

agreement states that “[t]he control and supervision of student participants while in

transport to and from each school district shall be the responsibility of the home school

district." (J.A. at 58.) Under the agreement, each school is expected to provide a bus

to transport its student athletes when practices are held at the other school. 

On September 12, 1996, during the school day, school administrators realized

there was some confusion over the location of that day's football team practice. Both

schools’ schedules listed the practice as taking place at their own school. When the

confusion arose, Climax had a bus at its school but no licensed driver was available to

operate it, and Fisher had a licensed driver (the football team coach) but no bus was

available at its school. Ultimately, the schools agreed that practice should be held at

Fisher that day with the Climax student athletes providing their own transportation to

Fisher. The parties dispute issues relating to the person(s) making the final decision on

where to hold the practice.
-3-

Once the decision had been made, Timothy Swalboski, Jr., a high school junior

at Climax and member of the football team, drove himself and fellow teammate,

Matthew Davidson, to practice at Fisher. On his way to practice, Swalboski, Jr. failed

to yield the right-of-way at an intersection and collided with a vehicle driven by Delvin

Gylten. Swalboski, Jr., Davidson, and Delvin Gylten sustained injuries in the accident,

the latter suffering severe heart, head, and elbow injuries. In the ensuing litigation,

Doris Gylten made a claim for loss of consortium. 

The Gyltens sued Climax, Fisher, and Swalboski, Jr.'s parents, alleging they

were liable for Swalboski, Jr.'s negligence. The Gyltens settled their claims with

Swalboski, Jr.'s parents. In their claims against Fisher and Climax, the Gyltens contend

that Swalboski, Jr.'s negligence is imputed to the school districts because of their

supervisory relationship. The Gyltens allege that Climax and Fisher negligently

breached their duty of supervision and control of the students while in transport to

football practice. 

The defendants brought motions for summary judgment arguing that they owed

no legal duty to non-students who might be injured due to the negligence of a student

driving to a school-sponsored activity. Additionally, the defendants argued immunity

from suit under Minn. Stat. § 466.03(6) (immunity for discretionary acts). The district

court granted summary judgment to Fisher and Climax on both grounds. The Gyltens

appeal.

II. Discussion

We review a grant of summary judgment de novo, applying the same standard

as did the district court: whether the record, viewed in a light most favorable to the

nonmoving party, shows that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. Hammond v. Northland

Counseling Ctr., Inc., 218 F.3d 886, 891 (8th Cir. 2000). Summary judgment is proper
-4-

if the plaintiff fails to establish any element of his or her prima facie case. Wilking v.

County of Ramsey, 153 F.3d 869, 873 (8th Cir. 1998).

Because this is a diversity action, state law governs issues of substantive law.

Oriental Trading Co., Inc. v. Firetti, 236 F.3d 938, 944 (8th Cir. 2001). In Minnesota,

to prevail on a claim for negligence, a plaintiff must prove the following: (1) that the

defendant has a legal duty to the plaintiff to take some action; (2) that there was a

breach of that duty; (3) that the breach of that duty was the proximate cause of the harm

to the plaintiff; and (4) damage. Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn.

1999).

A. Duty

We turn to the question of whether the Gyltens presented sufficient evidence of

the existence of a duty on the part of the school districts toward Delvin Gylten.

Appellees argue that they had no duty to protect Mr. Gylten, a non-student, from harm

caused by the conduct of Swalboski, Jr., the student driver. In Minnesota, the

existence of a legal duty to act depends on two factors: (1) the relationship of the

parties, and (2) the foreseeability of the risk involved. See Erickson v. Curtis Inv. Co.,

447 N.W.2d 165, 168-69 (Minn. 1989). "[Special] relationships can give rise to an

affirmative duty to take precautions to protect others from harm, as well as to rescue

them." FOWLER V. HARPER, FLEMING JAMES, JR., & OSCAR S. GRAY, THE LAW OF

TORTS § 18.6, at 724 n.25 (2d ed. 1986). In addition, "[a]n affirmative obligation to

use care to control the conduct of others may . . . be raised by a special relationship

between the actor and the person injured." Id. at § 18.7, at 741. "In order to find that

a special relationship exists, it must be assumed that the harm to be prevented by the

defendant is one that '[the defendant] is in a position to protect against and should be

expected to protect against.'" Gilbertson, 599 N.W.2d at 131 (quoting Erickson, 447

N.W.2d at 168).
-5-

(1) Claims as to Fisher

Under the cooperative agreement between the two school districts, Fisher did not

assume a responsibility to supervise or transport Climax students to football practice.

The agreement provided that the "control and supervision of student participants while

in transport to and from each school district shall be the responsibility of the home

school district." (J.A. at 58.) Swalboski, Jr. was a Climax student and, pursuant to the

agreement, Climax was responsible for his transportation and not Fisher. Therefore,

we conclude that under the agreement, Swalboski, Jr. and Fisher did not have any

student-school relationship. Thus, Swalboski, Jr.'s conduct could not be attributed to

Fisher. No duty existed under the agreement which required Fisher to supervise Climax

students. Thus, the district court properly dismissed Fisher from the action brought by

the plaintiffs.

(2) Claims as to Climax

The more difficult question is whether Climax owed a duty to the Gyltens. If no

duty exists, then we need not reach the issue of whether Climax can claim the

protection of discretionary immunity in allowing student athletes to drive themselves

to practices.

The Gyltens contend that Climax is liable for their injuries as a result of negligent

supervision of Swalboski, Jr. during his drive to Fisher and for negligent failure to

obtain parental consent authorizing students to drive to Fisher for practice. The Gyltens

claim that the student-school relationship creates a duty of supervision and

responsibility for all foreseeable harm caused by a student to any party. Where the

state's highest court has not ruled, we follow the decisions of the state's intermediate

courts when they are the best evidence of what the state law is. See Marvin Lumber

& Cedar Co. v. PPG Indus., Inc., 223 F.3d 873, 883 (8th Cir. 2000). The Gyltens have

cited no Minnesota case that recognizes the liability of a school district for injuries to
-6-

a non-student plaintiff injured by students off school premises, and our research

uncovers no such case in the Minnesota appellate courts.

The Gyltens cite to a Minnesota case bearing on possible liability of a school

district for failure to properly supervise the extracurricular activity where an injury was

sustained by a student in an accident involving a motor vehicle operated by a student

during an extracurricular activity of the school where misbehavior by unsupervised

students is to be expected. See Verhel v. Independent Sch. Dist. No. 709, 359 N.W.2d

579 (Minn. 1984) (5-4 decision) (Simonett, J., dissenting). In Verhel, the court

affirmed a judgment against a school district in a negligence action by a high school

cheerleader and her father to recover for injuries suffered by the cheerleader in an

automobile collision that occurred when the cheerleading team, traveling in a van

operated by another cheerleader, was bannering homes of football players early in the

morning one day prior to the start of the season. Id. at 590. The Gyltens cite to dicta

in Verhel, id. (driving misbehavior by unsupervised students is to be expected and is

precisely the harm to be guarded against by the exercise of the school district's

supervision). We cannot say that the Verhel dicta amounts to a statement of clearly

established law. Moreover, that case hinged on the duty to supervise its students and

that the school district, through its agent–a faculty cheerleading sponsor, was aware of

the risk of harm to its students. Id. at 589-90.

The duty of a school to supervise its students has been defined as an obligation

to:

use ordinary care and to protect its students from injury resulting from the

conduct of other students under circumstances where such conduct would

reasonably have been foreseen and could have been prevented by the use

of ordinary care. There is no requirement of constant supervision of all

the movements of pupils at all times.
-7-

Sheehan v. St. Peter's Catholic Sch., 188 N.W.2d 868, 870 (Minn. 1971) (cited with

approval in, Raleigh v. Independent Sch. Dist. No. 625, 275 N.W.2d 572, 574-75

(Minn. 1978)).

The relationship between a school district and its students creates the duty.

Spanel v. Mounds View Sch. Dist. No. 621, 118 N.W.2d 795, 802 (Minn. 1962)

("School children have a special status in the eyes of the law, and in view of the

compulsory attendance statute deserve more than ordinary protection.") (footnote

omitted). A school is negligent if it fails to exercise ordinary or reasonable care

towards its students. Hernandez v. Renville Pub. Sch. Dist. No. 654, 542 N.W.2d 671,

674 (Minn. Ct. App. 1996). The evidence must show that "supervision would probably

have prevented the accident." Verhel, 359 N.W.2d at 586. However, "[a] teacher,

generally, is not required to anticipate the hundreds of unexpected student acts which

occur daily or to guard against dangers inherent in rash student acts." Id.

Here, as the district court noted, Climax does not owe a duty to the Gyltens

because it does not have a special relationship with Mr. Gylten, a non-student, thirdparty plaintiff. This view of no duty is supported by other state courts which have

addressed the issue, for example, the Indiana Court of Appeals. In Wickey v. Sparks,

642 N.E.2d 262 (Ind. Ct. App. 1994), a member of the general public who suffered

injuries in a collision with an automobile operated by a student commuting between a

public school and its vocational center brought a negligence action against the public

school corporation and a vocational center organized by several school corporations.

Characterizing the question as whether the duty to supervise, owed by a school to its

students, extended to third parties, the Wickey court balanced three competing factors:

(1) the relationship between the parties; (2) the reasonable foreseeability of harm to the

injured party; and (3) public policy concerns. Wickey, 642 N.E.2d at 266 (quoting

Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991)). The court determined that all three

factors weighed against imposing a duty on the school district to protect third parties.

Id. at 268.
2The opinion in Hamilton is unclear as to whether the injured plaintiff was a

student herself at the time.

-8-

The district court in this case relied on Wickey and cases from two other

jurisdictions, Hoff v. Vacaville Unified Sch. Dist., 968 P.2d 522 (Cal. 1998), and

Thompson v. Ange, 443 N.Y.S.2d 918 (App. Div. 1981). In Hoff, a student leaving

school at the end of the day lost control of his car, jumped a curb and hit an individual

who was walking on the sidewalk across the street. Hoff, 968 P.2d at 522. The court

held that school personnel who neither know nor reasonably should know that a

particular student has a tendency to drive recklessly owe no duty to off-campus nonstudents. Id. at 529. In Thompson, the plaintiffs were injured in a multi-car accident

caused by a student driving between high school and vocational school. Thompson,

443 N.Y.S.2d at 920. The court held that neither school had a duty to members of the

public to keep their students off the public highways during school hours. Id. at 921.

The Gyltens rely on Hamilton v. Independent Sch. Dist. No. 114, 355 N.W.2d

182 (Minn. Ct. App. 1984), to argue that schools owe a duty to non-student third

parties. In Hamilton, after a school-sponsored basketball game, a student waiting

outside the school gym pushed a fellow student who fell into the plaintiff, injuring her.

Id. at 183. As the Hamilton decision makes clear, however, the school knew the

students had been involved in prior altercations. Id. at 184. The Minnesota Court of

Appeals, reversing a summary judgment of dismissal, determined that the school may

have owed the plaintiff, a spectator at a school sporting event, a duty because the

school knew there was a foreseeable risk of injury and a jury could have found the

presence of a school supervisor might have prevented the injury. Id. at 185.2

 Similarly,

in Verhel, the Minnesota Supreme Court determined that the driving behavior, or

misbehavior, of a cheerleader carrying thirteen passengers in her parents' van before

dawn was foreseeable. Verhel, 359 N.W.2d at 589-90 (noting that evidence was

introduced that the student driver had been "driving kind of fast," that she had driven
-9-

over the curb shortly before the accident, and was feeling tired at the time of the

accident).

We agree with the district court's conclusion that the Gyltens did not produce

sufficient evidence to give rise to a legal duty of care owed by Climax or Fisher to the

Gyltens. As the court noted, the Gyltens are members of the general public with no

relationship to either school district. In addition, the Gyltens produced no evidence that

either school district knew or should have known that Swalboski, Jr. was anything but

an average licensed driver who had been granted parental permission to drive his car

to school. No evidence indicated that Swalboski, Jr. prior to the accident drove in an

unsafe manner or, if he was a careless driver, that Climax received any notice of those

driving characteristics. This case differs from those where liability of a school district

derived from the school district providing a defective motor vehicle to students or

permitting students' use of a defective motor vehicle. See, e.g., Hanson v. Reedley

Joint Union High Sch. Dist., 111 P.2d 415 (Cal. Dist. Ct. App. 1941) (affirming

judgment for injured students' parents after an automobile accident and holding that the

school district was responsible for the negligence of the school's tennis teacher in

requesting that a tennis team member drive the two students home after practice, when

the teacher knew that the team member's vehicle was defective). In the absence of

contrary precedent in the Minnesota courts, we believe that the Minnesota Supreme

Court would likely reach the conclusion of not extending a school district's liability to

non-student third parties who lack any connection to the school. Although we proceed

with caution on summary judgment motions in a negligence action, Hughes v. American

Jawa, Ltd., 529 F.2d 21, 23 (8th Cir. 1976), we conclude that the grant of summary

judgment was proper. Absent a duty, there can be no breach, and thus, no basis for

recovery under a negligence theory.
-10-

B. Immunity

The district court, on an alternative basis, noted that even if appellants were able

to support a prima facie case of negligence, the discretionary function immunity under

Minn. Stat. § 466.03(6) protected the school districts from liability. Minnesota's

discretionary function immunity protects municipalities from tort liability for "[a]ny

claim based upon the performance or the failure to exercise or perform a discretionary

function or duty, whether or not the discretion is abused." Minn. Stat. § 466.03(6).

We need not and do not address the immunity issue in light of our disposition

adverse to the Gyltens on the negligence issue. We neither approve nor disapprove of

the district court's ruling on immunity.

III. Conclusion

Accordingly, the summary judgment of dismissal against each school district is

affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.