                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-0713

                                  Jane Doe 175, a minor,
                   by her mother and natural guardian, Mother Doe 175,
                                        Appellant,

                                           vs.

                      Columbia Heights School District, ISD No. 13,
                                     Respondent,

                               Christopher Lloyd Warnke,
                                       Defendant.

                                 Filed January 4, 2016
                                       Affirmed
                                     Hooten, Judge

                              Anoka County District Court
                               File No. 02-CV-11-7667

Jeffrey R. Anderson, Sarah G. Odegaard, Jeff Anderson & Associates, P.A., St. Paul,
Minnesota (for appellant)

Margaret A. Skelton, Christian R. Shafer, Ratwik, Roszak & Maloney, P.A., Minneapolis,
Minnesota (for respondent)

Susan L. Naughton, League of Minnesota Cities and Association of Minnesota Counties,
St. Paul, Minnesota (for amici curiae League of Minnesota Cities and Association of
Minnesota Counties)

Paul D. Peterson, Lori L. Barton, Harper & Peterson, P.L.L.P., Woodbury, Minnesota (for
amicus curiae Minnesota Association for Justice)

Michelle D. Kenney, Knutson, Flynn & Deans, P.A., Mendota Heights, Minnesota (for
amicus curiae Minnesota School Boards Association)

         Considered and decided by Kirk, Presiding Judge; Chutich, Judge; and Hooten,

Judge.
                                      SYLLABUS

       Under Minnesota Statutes section 466.03, subdivision 15 (2014), a school district is

not vicariously liable for the torts of its employees committed while acting outside the

“scope of office or employment,” as that phrase is used in Minnesota Statutes section 3.736,

subdivision 1 (2014), and defined in Minnesota Statutes section 3.732, subdivision 1(3)

(2014).

                                       OPINION

HOOTEN, Judge

       In this second appeal, appellant challenges the district court’s summary judgment

dismissal of her claims against respondent school district for vicarious liability, negligence,

and negligent supervision arising out of the sexual abuse of appellant by respondent’s

employee. We affirm.

                                           FACTS

       The material facts in this case are largely undisputed. In the fall of 2009, defendant

Christopher Lloyd Warnke was an employee of respondent Columbia Heights School

District, ISD No. 13, working as a football coach and weight room supervisor. Before

hiring Warnke, the school district interviewed him, checked his references, and conducted

a criminal background check on him. During the hiring process, the school district did not

discover anything about Warnke that suggested he posed a risk to students.

       When Warnke was hired by the school district in 2008, he received a copy of the

school district’s employee handbook, which contained policies regarding how employees

should interact with students. The handbook referenced the Columbia Heights School


                                              2
Board Policy Manual, which was available on the Internet. Policy #423 of the policy

manual stated, “Sexual relationships between school district employees and students,

without regard to the age of the student, are strictly forbidden and may subject the employee

to criminal liability.” The policy also prohibited employees from dating students, having

sexual interactions with students, and committing or inducing students to commit immoral

or illegal acts. The policy directed employees to “employ safeguards against improper

relationships with students and/or claims of such improper relationships.” Warnke testified

that he knew during the fall of 2009 that the policy prohibited school district employees

from dating or having sexual interactions with students.

       In the fall of 2009, appellant Jane Doe 175 was fourteen years old and in the ninth

grade in the Columbia Heights School District. Doe had first met Warnke when she was

in the eighth grade and Warnke was coaching the eighth-grade football team. At that time,

Doe was friends with football players on Warnke’s team and would stop by and say hello

to her friends at football games. Doe and Warnke got to know each other better at the start

of her ninth-grade year, as she continued to visit her friends on the ninth-grade football

team that Warnke then coached.

       After a football game in the fall of 2009, Doe borrowed Warnke’s cell phone to call

her parents for a ride home. When she got home, she used the caller ID feature of her home

telephone to acquire Warnke’s cell phone number and proceeded to initiate correspondence

with Warnke under a false identity. Doe used her personal cell phone to send Warnke text

messages, pretending to be an adult woman interested in having a sexual relationship with

him. After a week of exchanging text messages with Warnke, Doe admitted to him that


                                             3
she was the person who was sending the text messages. Warnke was initially angry with

Doe, but he soon resumed texting with her, even though he knew that she was a ninth-grade

student.    Over the following weeks, Warnke and Doe exchanged hundreds of text

messages, many of which contained graphic sexual content. Warnke also e-mailed Doe

two photographs of his penis.

       During this time period, Warnke and Doe saw each other in person mainly in the

weight room that Warnke supervised. Doe testified that, with the exception of one incident

of sexual contact, her visits to the weight room to see Warnke were limited to conversation,

although the subject matter of these conversations was at times sexually explicit. Doe

testified that other people were nearly always in the weight room when Warnke and Doe

interacted, but that there were no other school district employees present when she visited

Warnke in the weight room. Warnke testified that he was alone with Doe in the weight

room on only two occasions. Once when Warnke was alone with Doe in the weight room

office, he either placed Doe’s hand on his penis or coerced her to touch his penis.1 After

this incident of sexual contact, Warnke and Doe continued to exchange sexual text

messages.

       On November 17, 2009, another student’s mother contacted Doe’s mother and told

her that Warnke and Doe had been exchanging sexually explicit text messages. On

November 18, 2009, that student told a school official about Warnke’s inappropriate



1
  While Doe and Warnke disputed whether Warnke placed Doe’s hand on his penis or
coerced her to touch his penis, this fact dispute did not affect the district court’s analysis
of the issues on summary judgment and does not affect our analysis.

                                              4
relationship with Doe. The district court stated that “[i]t is undisputed that the first time

any [other] employees of the [school district] knew about the relationship between Warnke

and [Doe] was November 18, 2009.” The school district called the police the same day to

report Warnke’s sexual abuse. Warnke was arrested, and his employment was terminated

shortly thereafter. In 2011, Warnke pleaded guilty to one count of fourth-degree criminal

sexual conduct and two counts of solicitation of a minor to engage in sexual conduct.

       In October 2011, Doe filed a complaint against Warnke and the school district,

alleging sexual battery against Warnke and vicarious liability, negligence, and negligent

supervision against the school district. The school district moved for summary judgment

on the three claims against it. In February 2013, the district court granted summary

judgment to the school district on Doe’s negligence and negligent supervision claims, but

denied summary judgment on the vicarious liability claim. In March 2013, the district

court certified two questions to this court, and the school district filed a notice of appeal to

obtain answers to the certified questions, but this court dismissed the appeal on procedural

grounds in January 2014. Doe 175 by Doe 175 v. Columbia Heights Sch. Dist., 842 N.W.2d

38, 40–41, 49 (Minn. App. 2014).

       In March 2014, the school district moved for summary judgment for a second time

on the vicarious liability claim, raising for the first time an immunity defense. The district

court granted summary judgment to the school district on Doe’s vicarious liability claim.

In this second appeal, Doe challenges the district court’s grant of summary judgment to the

school district on all three claims.




                                               5
                                          ISSUES

       I.     Is the school district’s mootness argument properly before this court?

       II.    Did the district court err in granting the school district’s motion for summary

judgment on Doe’s vicarious liability claim?

       III.   Did the district court err in granting the school district’s motion for summary

judgment on Doe’s negligence and negligent supervision claims?

                                        ANALYSIS

                                              I.

       As a preliminary matter, the school district argues that Doe’s vicarious liability

claim is moot. Four months after the district court granted summary judgment to the school

district on Doe’s vicarious liability claim, but before Doe’s current appeal to this court,

Doe and Warnke stipulated that Doe’s sexual battery claim against Warnke “shall be

dismissed with prejudice.” The district court dismissed the claim with prejudice by order

dated October 31, 2014. On appeal, the school district argues for the first time that the

October 2014 order renders moot Doe’s vicarious liability claim. Specifically, the school

district contends that its vicarious liability can be no greater than Warnke’s direct liability

and that the October 2014 order prevents Doe from establishing Warnke’s direct liability.

       The only issues appealed by Doe are whether the district court properly granted

summary judgment to the school district on her vicarious liability, negligence, and

negligent supervision claims. In response, the school district argues that the district court

correctly granted summary judgment on Doe’s vicarious liability claim on the basis of

statutory immunity, but alternatively argues that we should not even review this summary


                                              6
judgment on appeal because the claim is now moot in light of the subsequent stipulated

dismissal of Doe’s claim against Warnke. However, in order to reach the issue of whether

Doe’s vicarious liability claim is moot, we would necessarily be required to determine as

a matter of law whether a stipulated dismissal with prejudice is the equivalent of a release,

such that the common law rule that “the release of the agent releases the principal from

vicarious liability” would apply in this case. See Booth v. Gades, 788 N.W.2d 701, 707

(Minn. 2010). The legal effect of the stipulated dismissal of Doe’s claim against Warnke

was not raised before the district court as an alternative ground for summary judgment and

was not adequately briefed to this court. Rather, the only defense asserted by the school

district in its second motion for summary judgment, ruled upon by the district court, and

appealed by Doe relative to the school district’s vicarious liability was statutory immunity.

Therefore, we decline to consider the school district’s mootness argument and proceed to

the substance of the issues raised in this appeal.2

                                              II.

       Doe argues that the district court erred by granting the school district’s motion for

summary judgment on her vicarious liability claim. She contends that the district court


2
  If we were to reverse the district court’s grant of summary judgment on Doe’s vicarious
liability claim—which we are not doing—the school district would then have the
opportunity to argue about the effect of the stipulated dismissal before the district court.
But, because we are affirming on this issue, the school district’s alternative argument
(mootness) need not be addressed. Even if we were to agree that the vicarious liability
claim is moot, a discretionary exception to the mootness doctrine would allow us to reach
the merits of this issue. See Dean v. City of Winona, 868 N.W.2d 1, 6 (Minn. 2015) (“We
have the discretion to consider a case that is technically moot when the case is functionally
justiciable and presents an important question of statewide significance that should be
decided immediately.” (quotations omitted)).

                                              7
erred in interpreting and applying the Minnesota municipal tort claims act, Minn. Stat.

§§ 466.01–.15 (2014), and the Minnesota state tort claims act, Minn. Stat. § 3.736 (2014),

to her claim. In its order granting the school district’s second motion for summary

judgment, the district court did not analyze whether the school district was subject to

vicarious liability under Minn. Stat. § 466.02. Instead, the district court determined that

the school district was immune from vicarious liability under Minn. Stat. § 466.03, subd.

15. We agree that even if the school district would otherwise be subject to vicarious

liability under section 466.02, it would be immune from vicarious liability under section

466.03, subdivision 15.

       On appeal from summary judgment, we review de novo whether there are any

genuine issues of material fact and whether the district court erred in applying the law.

STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76–77 (Minn. 2002). We

view the evidence in the light most favorable to the nonmoving party. Id. Whether

immunity applies is a question of law, which we review de novo. Schroeder v. St. Louis

Cty., 708 N.W.2d 497, 503 (Minn. 2006). “The party claiming statutory immunity has the

burden of proof.” S.W. & J.W. ex rel. A.M.W. v. Spring Lake Park Sch. Dist. No. 16, 580

N.W.2d 19, 22 (Minn. 1998).

       The interpretation of a statute presents a question of law, which we review de novo.

Weston v. McWilliams & Assocs., Inc., 716 N.W.2d 634, 638 (Minn. 2006). “The object

of all interpretation and construction of laws is to ascertain and effectuate the intention of

the legislature.” Minn. Stat. § 645.16 (2014). The interpretation of section 466.03,

subdivision 15, is an issue of first impression. “The first step in statutory interpretation is


                                              8
to determine whether the statute’s language, on its face, is ambiguous.” Christianson v.

Henke, 831 N.W.2d 532, 536 (Minn. 2013) (quotations omitted).

              In determining whether a statute is ambiguous, we will
              construe the statute’s words and phrases according to their
              plain and ordinary meaning. A statute is only ambiguous if its
              language is subject to more than one reasonable interpretation.
              Multiple parts of a statute may be read together so as to
              ascertain whether the statute is ambiguous. When we conclude
              that a statute is unambiguous, our role is to enforce the
              language of the statute and not explore the spirit or purpose of
              the law. Alternatively, if we conclude that the language in a
              statute is ambiguous, then we may consider the factors set forth
              by the [l]egislature for interpreting a statute.

Id. at 536–37 (quotations and citations omitted).           The parties offer conflicting

interpretations of the language of the statute at issue here. But, because there is only one

reasonable interpretation—the school district’s—we conclude that the statute’s language

is unambiguous.

       Section 466.02 provides: “Subject to the limitations of sections 466.01 to 466.15,

every municipality is subject to liability for its torts and those of its officers, employees

and agents acting within the scope of their employment or duties whether arising out of a

governmental or proprietary function.” The term “municipality” includes school districts.

Minn. Stat. § 466.01, subd. 1. But, the term “scope of their employment or duties” is not

defined in the municipal tort claims act. Section 466.03 details numerous “limitations and

exceptions” to municipal vicarious liability. Hansen v. City of St. Paul, 298 Minn. 205,

211, 214 N.W.2d 346, 350 (1974). In relevant part, this section provides that every

municipality shall be immune from liability for “[a]ny claim against a municipality, if the




                                             9
same claim would be excluded under [Minn. Stat. § 3.736], if brought against the state.”

Minn. Stat. § 466.03, subd. 15.

       Section 3.736, subdivision 1, provides that, with some exceptions, the state can be

held liable only for losses caused by the torts of its employees “while acting within the

scope of office or employment.” For purposes of section 3.736, “scope of office or

employment” means “that the employee was acting on behalf of the state in the

performance of duties or tasks lawfully assigned by competent authority.” Minn. Stat.

§ 3.732, subd. 1(3). By limiting the state’s vicarious liability to the torts of employees

“acting within the scope of office or employment,” section 3.736 plainly excludes from

vicarious liability torts committed by a state employee who was not “acting on behalf of

the state in the performance of duties or tasks lawfully assigned by competent authority.”

See Minn. Stat. § 645.19 (2014) (codifying the interpretive canon expressio unius est

exclusio alterius). In addition to this implicit exclusion, the state tort claims act details

numerous other exclusions from the state’s vicarious liability, none of which are relevant

here. See Minn. Stat. § 3.736, subd. 3.

       There is no dispute that Warnke engaged in sexual misconduct for his own personal

reasons, not “on behalf of” the school district “in the performance of duties or tasks

lawfully assigned by competent authority.” See Minn. Stat. § 3.732, subd. 1(3). Therefore,

if Warnke had been employed by the state rather than the school district, Doe’s vicarious

liability claim would have been “excluded under section 3.736.” See Minn. Stat. § 466.03,

subd. 15. Thus, in its summary judgment ruling, the district court correctly concluded that

the school district was immune from liability under section 466.03, subdivision 15.


                                             10
       Doe offers a different interpretation of the statute, but her interpretation is

unreasonable. Doe claims that because section 466.03, subdivision 15, uses the word

“excluded,” it refers only to the “[e]xclusions” of section 3.736, subdivision 3. See Minn.

Stat. § 466.03, subd. 15 (“Any claim against a municipality, if the same claim would be

excluded under section 3.736, if brought against the state.” (emphasis added)). Doe then

points out that none of the enumerated exclusions in the state tort claims act provides for

immunity for claims of child sexual abuse and therefore argues that section 466.03,

subdivision 15, does not confer immunity upon the school district. Doe’s interpretation is

flawed because section 466.03, subdivision 15, provides immunity to a municipality if the

state would be immune “under section 3.736”—not if the state would be immune “under

section 3.736, subdivision 3.” This court cannot “add words to the statute that the

[l]egislature did not supply.” Graphic Commc’ns Local 1B Health & Welfare Fund “A”

v. CVS Caremark Corp., 850 N.W.2d 682, 691 (Minn. 2014).               And, section 3.736,

subdivision 1, specifically provides that the state may be vicariously liable only for injury

“caused by an act or omission of an employee of the state while acting within the scope of

office or employment.”

       The school district persuasively argues that section 3.736, subdivision 1, creates a

general rule that the state is immune from vicarious liability for the torts of its employees

unless they were committed “within the scope of office or employment.” Subdivision 3

expands this general rule by providing additional circumstances (“[e]xclusions”) under

which the state is immune, even if an employee’s tort was committed “within the scope of

office or employment.” On the other hand, Doe’s narrow, formalistic interpretation of


                                             11
section 466.03, subdivision 15, ignores the general rule of immunity set forth in section

3.736, subdivision 1.

       Based upon our interpretation of the interplay between the municipal tort claims act

and the state tort claims act, we hold that the school district is immune from vicarious

liability under Minn. Stat. § 466.03, subd. 15. The district court did not err in granting

summary judgment to the school district on Doe’s vicarious liability claim.

                                            III.

       Doe next argues that the district court erred by granting summary judgment to the

school district on her negligence and negligent supervision claims because the existence of

alleged “red flags” should have put the school district on notice that Warnke’s sexual abuse

of Doe was foreseeable. The school district counters that Doe mischaracterizes the record

to exaggerate the significance of the alleged red flags and contends that Warnke’s sexual

abuse of Doe was not foreseeable. To defeat summary judgment, the nonmoving party

must do more than “merely create[] a metaphysical doubt as to a factual issue” or “rest on

mere averments.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). Rather, the

nonmoving party must offer “substantial evidence” to support each essential element of its

cause of action. See id. at 70–71 (quotation omitted). Speculation and innuendo are not

sufficient. Johnson v. Van Blaricom, 480 N.W.2d 138, 140 (Minn. App. 1992).

       The elements of a negligence claim are the existence of a duty of care, breach of

that duty, proximate causation, and injury. Bjerke v. Johnson, 742 N.W.2d 660, 664 (Minn.

2007). For purposes of a negligence claim, there is no general duty to protect another from

harm, but a duty to protect arises if there is a special relationship between the parties and


                                             12
the risk is foreseeable. Id. at 665. Similarly, “[t]o make out a successful claim for negligent

supervision, the plaintiff must prove (1) the employee’s conduct was foreseeable; and (2)

the employer failed to exercise ordinary care when supervising the employee.” C.B. by

L.B. v. Evangelical Lutheran Church in Am., 726 N.W.2d 127, 136 (Minn. App. 2007)

(quotations omitted). Therefore, to succeed on a claim of either negligence or negligent

supervision, a plaintiff must prove that the risk in question was foreseeable.

       Whether a risk is foreseeable is a legal question that must be decided by the district

court before submitting a case to a jury. Alholm v. Wilt, 394 N.W.2d 488, 491 (Minn.

1986). In the context of negligence and negligent supervision claims, foreseeability means

“a level of probability which would lead a prudent person to take effective precautions.”

Fahrendorff by Fahrendorff v. N. Homes, Inc., 597 N.W.2d 905, 912 (Minn. 1999)

(quotation omitted). “In determining whether a danger is foreseeable, courts look at

whether the specific danger was objectively reasonable to expect, not simply whether it

was within the realm of any conceivable possibility.” Whiteford by Whiteford v. Yamaha

Motor Corp., U.S.A., 582 N.W.2d 916, 918 (Minn. 1998). Sexual abuse “will rarely be

deemed foreseeable in the absence of prior similar incidents.” K.L. v. Riverside Med. Ctr.,

524 N.W.2d 300, 302 (Minn. App. 1994), review denied (Minn. Feb. 3, 1995).

       The district court granted the school district’s motion for summary judgment on

these claims because it concluded that Warnke’s sexual abuse of Doe was not foreseeable.

The district court relied heavily on P.L. v. Aubert, 545 N.W.2d 666 (Minn. 1996), in

reaching this conclusion. In P.L., the supreme court held that the sexual abuse of a student

by a teacher did not impose liability on the school district because the teacher and student


                                              13
concealed their relationship, such that “closer vigilance would not have uncovered the

relationship.”   Id. at 668. Doe argues that the existence of the following red flags is

sufficient, when construed most favorably to her, to raise a genuine issue of material fact

as to whether Warnke’s sexual abuse of Doe was foreseeable and whether the school

district had reason to know that Warnke posed a danger to Doe.

Doe yelling at Warnke at a football practice

       Doe watched Warnke’s football practice during the fall of 2009 on one or two

occasions. On one of these occasions, Doe yelled to Warnke, “Chris, I love you.” In

response to Doe yelling this, L.S., another football coach, told Warnke, “[T]hat’s trouble.”

Warnke did not respond to Doe, and L.S. asked Doe to leave the practice.

Doe and Warnke talking in a school parking lot

       In late September or early October 2009, L.S. saw Warnke and Doe talking in a

school parking lot after football practice. Several other students and coaches were in the

parking lot at the time. In her appellate brief, Doe states that the conversation took place

while she and Warnke were “alone” in the parking lot, but this mischaracterizes the record.

L.S. testified that “[t]hey weren’t alone. They were talking to each other, but there [were]

lots of people in the parking lot.” L.S. further testified that he did not find it odd to see

Doe and Warnke talking in the parking lot, as “it wasn’t uncommon for coaches, male or

female, to be talking to students.”

Doe using the weight room office computer

       Sometime in the fall of 2009, L.S. and another football coach saw Doe using a

computer in the weight room office while Warnke was supervising the weight room.


                                             14
Warnke was not in the office at the time, as he was lifting weights with football players in

the weight room. L.S. or the other coach said to Warnke something like, “[S]he needs to

leave,” to which Warnke responded, “She’s not my problem.” L.S. testified that, while he

had seen Doe in the weight room from time to time, he did not recall ever seeing Doe

interacting with Warnke in the weight room. L.S. indicated that both female and male

athletes used the weight room. Doe testified that she was an athlete and that she often

visited the weight room with her brother, who was on the junior varsity football team. L.S.

testified that the weight room office, which was located near the entryway of the weight

room, was shared by several coaches who supervised the weight room. When asked about

the weight room office, Doe stated: “It’s just open. Anybody [could] go in there.” Doe

testified that she had accessed the computer “probably a couple of times” using her student

login. L.S. testified that he was unaware of any policies related to students using the

computer in the weight room office.

Warnke alone in the weight room with a young girl on a Saturday

       Another weight room supervisor saw Warnke alone with an unknown “young girl”

in the weight room on a Saturday morning when Warnke was supervising the weight room.

The weight room supervisor did not report this observation to school officials until the

school district conducted its internal investigation of Warnke’s sexual abuse. When asked

about this incident, Warnke testified that he had never been confronted about being alone

in the weight room with a young girl. He also testified that his daughter would occasionally

accompany him to the weight room on Saturdays when his wife was working.




                                            15
       Even viewing the record in the light most favorable to Doe, these alleged red flags

were insufficient to raise a genuine issue of material fact as to whether Warnke’s sexual

abuse of Doe was foreseeable. Taken in context, the incidents Doe cites are not sufficiently

similar to or indicative of sexual abuse as to give the school district notice that an

inappropriate relationship existed between Warnke and Doe. First, Doe’s “Chris, I love

you” shout was a single statement by a teenage girl at a football practice, Warnke did not

react to the shout, and Doe was instructed to leave the practice after she shouted. Second,

as to the observation of Doe talking to Warnke in the school parking lot, the record

indicates that Doe and Warnke were not alone and that it was common to see coaches

talking with students in the parking lot after sports practices. Third, the observation of Doe

using a computer in the weight room office while Warnke was supervising other students

in the weight room is not an objectively reasonable indicator of a potentially inappropriate

relationship between Warnke and Doe.            Fourth, observations of Warnke and an

unidentified young female alone in the weight room on a Saturday do not raise any

reasonable inferences of potential or ongoing sexual abuse. Furthermore, there is no

evidence that any school district employee observed physical contact or sexual conduct of

any kind between Warnke and Doe.

       Doe alternatively argues that foreseeability in this case is a “close call,” presenting

a jury question. See Whiteford, 582 N.W.2d at 918 (“In close cases, the question of

foreseeability is for the jury.”). Even viewing the evidence in the light most favorable to

Doe, however, these incidents gave no “objectively reasonable” indication of a “specific




                                             16
danger” of potential or ongoing sexual abuse. Id. Our review of these facts shows that

foreseeability was not a “close call” that should be decided by a jury.

       Doe contends that inadequate training by the school district might be the reason why

the school district’s employees failed to discern the significance of the alleged red flags.

But, Doe does not identify any additional training that would have caused school district

employees to view the benign interactions she characterizes as red flags as indicators of

possible sexual abuse. The mere assertion that additional training might have affected

observers’ perceptions is not sufficient to defeat summary judgment. See DLH, Inc., 566

N.W.2d at 70–71 (requiring substantial evidence and not mere averments to defeat

summary judgment).

       Based on the undisputed facts in the record, we agree with the district court that

Warnke’s sexual abuse of Doe was not foreseeable. The district court did not err in

granting summary judgment to the school district on Doe’s negligence and negligent

supervision claims.

                                     DECISION

       Because the school district is immune from vicarious liability under the municipal

tort claims act, we affirm the district court’s grant of summary judgment to the school

district on Doe’s vicarious liability claim. And, because Warnke’s sexual abuse of Doe

was not foreseeable, we affirm the district court’s grant of summary judgment to the school

district on Doe’s negligence and negligent supervision claims.

       Affirmed.




                                            17
