                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0181

        James Ariola as next of kin and trustee for Jack Ariola Erenberg, his son,
                                       Appellant,

                                           vs.

                        The City of Stillwater, Minnesota, et al.,
                                     Respondents,
                                 Washington County,
                                      Respondent,
                       State of Minnesota Department of Health,
                                      Respondent.

                               Filed October 27, 2014
                  Affirmed in part, reversed in part, and remanded
                                   Stauber, Judge

                           Washington County District Court
                                File No. 82CV131070

John R. Neve, Evan H. Weiner, Neve Webb, P.L.L.C., Minneapolis, Minnesota; and

Roger Strassburg, (pro hac vice), Roger Strassburg, P.L.L.C., Scottsdale, Arizona (for
appellant)

Pierre N. Regnier, Jessica E. Schwie, Jamie L. Guderian, Jardine, Logan & O’Brien,
P.L.L.P., Lake Elmo, Minnesota (for respondent City of Stillwater)

Scott T. Anderson, Jennifer Bannon, Rupp, Anderson, Squires & Waldspurger, P.A.,
Minneapolis, Minnesota (for respondent Washington County)

Lori Swanson, Minnesota Attorney General, Jennifer Coates, Assistant Attorney General,
St. Paul, Minnesota (for respondent State of Minnesota)
       Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and

Kirk, Judge.

                         UNPUBLISHED OPINION

STAUBER, Judge

       Appellant challenges the dismissal of his wrongful-death claims against

respondents Minnesota Department of Health, Washington County, and the City of

Stillwater arising out of the death of his son from a brain infection caused by deadly

amoeba in a lake. Because we conclude that appellant has stated viable claims against

the city, we reverse the dismissal of appellant’s claims against it. But we conclude that

neither the department nor the county owed duties to the decedent, and thus we affirm the

dismissal of appellant’s claims against them.

                                           FACTS

       Lily Lake is a body of fresh, untreated water situated within the City of Stillwater,

which is located in Washington County. Lily Lake Park abuts Lily Lake and is owned

and operated by the city. The city constructed certain improvements at the park,

including picnic tables, shelters with BBQ grills, bathrooms, water fountains, an adult-

league ball field, tennis courts, a basketball court, a sand volleyball court, an indoor ice

arena, playground equipment, and a boat launch. The park also has a swimming beach

with beach facilities that are maintained by the city and open to the public.

       In constructing the swimming area, the city allegedly altered the lake bottom to

create a shallow area of water. The shallow area results in especially warm water that is

uniquely favorable for the proliferation of Naegleria fowleri, a microscopic free-living


                                              2
and flesh-eating amoeba that is invisible to the unaided human eye. Naegleria fowleri is

capable of hiding in the sediment of lake bottoms, where it is able to survive adverse

environmental conditions. During its lifetime, Naegleria fowleri can assume three

different forms: flagellate, trophozoite, or cyst. Of these forms, only the trophozoite is

flesh-eating and deadly to humans.

        The trophozoite becomes dangerous to humans when it enters the human body

through the nose and establishes an infection. It then travels up the nasal passage,

multiplying in numbers and eating the delicate membranes of the nose and sinuses until it

reaches the brain. Once in the brain, the amoebae’s feeding activities kill the brain tissue

and cause brain inflammation, resulting in primary amoebic meningoencephalitis (PAM),

a fatal condition.

        In August 2010, seven-year-old Annie Bahneman died from PAM after being

exposed to Naegleria fowleri. Information was subsequently published identifying

several bodies of water, including Lily Lake, at which Bahneman was possibly exposed

to Naegleria fowleri. But despite signs posted at the park addressing certain risks,

including the risk of drowning in the absence of lifeguards, there were no signs posted

after Bahneman’s death addressing the potential presence of Naegleria fowleri in Lily

Lake.

        In early August 2012, nine-year-old Jack Ariola Erenberg (Jack) was exposed to

Naegleria fowleri by swimming in Lily Lake. A few days later, on August 6, 2012, Jack

died from PAM. Appellant James Ariola, Jack’s father, subsequently commenced this

wrongful-death action against the city, the county, and the Minnesota Department of


                                              3
Health (respondents). Shortly thereafter, appellant served and filed a first amended

complaint. Appellant’s first amended complaint asserted claims that (1) respondents

negligently failed to make safe or warn of artificial hazards to children; (2) respondents

made negligent misrepresentations by posting warning signs about other dangers, while

failing to post warning signs of the presence of Naegleria fowleri; (3) respondents failed

to warn of artificial conditions involving the risk of injury or death; (4) respondents failed

to exercise reasonable care to warn; (5) respondents failed to warn of a danger on real

property; (6) respondents failed to satisfy a voluntarily assumed higher standard of

warning; and (7) the county and the department aided and abetted the city’s tortious

conduct.

       Respondents moved to dismiss the first amended complaint on the basis that it

failed to state a claim on which relief could be granted. While the motions were under

advisement, appellant moved for leave to file a second amended complaint. After a

hearing, the district court granted respondents’ motions to dismiss appellant’s first

amended complaint “in its entirety with prejudice.” The district court dismissed

appellant’s claims against the city on the basis of recreational-use immunity. The district

court also concluded that “to the extent that [appellant’s] claims against the county and

[the department] arise from their constructive possession of Lily Lake, they also are

barred by the doctrine of recreational use immunity.” The district court further concluded

that, even if the county and the department “are not immune under recreational use

immunity, [appellant] has not, and cannot, allege sufficient facts to establish the first

element of a negligence claim against them: the existence of a duty of care.” Finally, the


                                              4
district court denied appellant’s motion to amend “[b]ecause the claims in [appellant’s]

proposed second amended complaint would necessarily fail as a matter of law.” This

appeal follows.

                                       DECISION

       In reviewing the district court’s grant of a motion to dismiss under Minn. R. Civ.

P. 12.02(e), the sole question before us is whether the complaint sets forth a legally

cognizable claim for relief. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550,

553 (Minn. 2003); see also Minn. R. Civ. P. 8.01 (requiring that pleadings “contain a

short and plain statement of the claim showing that the pleader is entitled to relief and a

demand for judgment for the relief sought”); Roberge v. Cambridge Coop. Creamery Co.,

243 Minn. 230, 232, 67 N.W.2d 400, 402 (1954) (stating that pleadings must be framed

so as to give notice of the claim asserted and permit the application of the doctrine of res

judicata). “[I]t is immaterial whether or not the plaintiff can prove the facts alleged.”

Martens v. Minnesota Min. & Mfg. Co., 616 N.W.2d 732, 739 (Minn. 2000). Our review

is de novo, and we must “consider only the facts alleged in the complaint, accepting those

facts as true and must construe all reasonable inferences in favor of the nonmoving

party.” Bodah, 663 N.W.2d at 553.

       Our supreme court has held that motions to dismiss serve a “limited function,”

Elzie v. Comm’r of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980), and recently reaffirmed

that “[a] claim is sufficient against a motion to dismiss for failure to state a claim if it is

possible on any evidence which might be produced, consistent with the pleader’s theory,

to grant the relief demanded.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 603 (Minn.


                                                5
2014) (quotation omitted). Thus, “‘a pleading will be dismissed only if it appears to a

certainty that no facts, which could be introduced consistent with the pleading, exist

which would support granting the relief demanded.’” Id. at 602 (quoting N. States Power

Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963)).

                                                I.

       We first address appellant’s challenge to the dismissal of his claims against the

City of Stillwater. The district court dismissed appellant’s claims against the city based

on its determination that they were barred by recreational-use immunity under Minn. Stat.

§ 466.02 (2012). Generally, “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.” Minn. Stat.

§ 466.02. But municipalities are immune from:

                      Any claim based upon the construction, operation, or
               maintenance of any property owned or leased by the
               municipality that is intended or permitted to be used as a
               park, as an open area for recreational purposes, or for the
               provision of recreational services, or from any claim based on
               the clearing of land, removal of refuse, and creation of trails
               or paths without artificial surfaces, if the claim arises from a
               loss incurred by a user of park and recreation property or
               services. Nothing in this subdivision limits the liability of a
               municipality for conduct that would entitle a trespasser to
               damages against a private person.

Minn. Stat. § 466.03, subd. 6e (2012). The term “municipalities” as defined by Minn.

Stat. § 466.01, subd. 1 (2012), includes both cities and counties.

       Recreational-use immunity “does not wholly absolve [governmental agencies]

from liability, it enables them to treat visitors, in the tort context, as trespassers rather


                                                6
than licensees or invitees.” Sirek by Beaumaster v. State, Dept. of Natural Res., 496

N.W.2d 807, 809 (Minn. 1993). “A public entity is liable only if it violated the standard

of care that a private landowner owes a trespasser.” Fear v. Independent School Dist.

911, 634 N.W.2d 204, 213 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

       In determining the standard of care owed to trespassers, Minnesota follows “the

standard of conduct imposed under the law of trespass as defined in Restatement

(Second) of Torts §§ 333-339.” Sirek, 496 N.W.2d at 809. Appellant argues that this

case should be governed by section 339, which provides a liability standard for injuries to

child trespassers. But our supreme court has rejected application of that standard in cases

involving accompanied minors. See Johnson v. Washington County, 518 N.W.2d 594,

599 (Minn. 1994) (holding that even though the child was in the water alone, the general

trespasser standard of section 335 was applicable because the child was under the

supervision of adults); Sirek, 496 N.W.2d at 811 (holding that child-trespasser standard

did not apply to child injured while visiting state trails with her parents because

unaccompanied children did not frequent isolated state trail); see also Henry v. State, 406

N.W.2d 608, 610-12 (Minn. App. 1987) (applying section 335 standard in case where

injured children were sleeping in tent adjacent to parents’ tent), review denied (Minn.

Aug. 12, 1987). Because Jack was accompanied by adults while swimming in Lily Lake,

we apply the generally applicable trespasser-liability standard set forth in section 335.

       Section 335 provides:

                     A possessor of land who knows, or from facts within
              his knowledge should know, that trespassers constantly
              intrude upon a limited area of the land, is subject to liability


                                              7
              for bodily harm caused to them by an artificial condition on
              the land, if
                     (a)    the condition
                            (i)    is one which the possessor has created or
                                   maintains and
                            (ii)   is, to his knowledge, likely to cause
                                   death or seriously bodily harm to such
                                   trespassers and
                            (iii) is of such a nature that he has reason to
                                   believe that such trespassers will not
                                   discover it, and
                     (b)    the possessor has failed to exercise reasonable
                            care to warn such trespassers of the condition
                            and the risk involved.

Restatement (Second) of Torts § 335 (1965).

       Appellant, as the plaintiff, will bear the burden of establishing that each of the

elements of trespasser liablity has been met in order to defeat the city’s claim of

immunity. Martinez v. Minnesota Zoological Gardens, 526 N.W.2d 416, 418 (Minn.

App. 1995), review denied (Minn. Mar. 29, 1995). Thus, appellant must ultimately prove

to a factfinder that Jack’s death was caused by (1) an artificial condition that was

(2) created or maintained by the city and that (3) the city knew that the condition was

likely to cause death or serious bodily harm. At this procedural juncture, however, we do

not ask whether appellant has proved the elements; instead our focus is on whether

appellant has sufficiently pleaded facts that, if proved, would meet the elements. See

Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997) (stating that, in appeal from rule-

12.02(e) dismissal, elements of claim must be considered “in the context of pleading

requirements in Minnesota”).




                                              8
       We conclude that appellant has pleaded facts sufficient to support a claim of

trespasser liability and thus to overcome the city’s recreational-use immunity. Appellant

alleges that Jack’s death was caused by the artificial condition of the improvements at

Lily Lake, which were created and maintained by the city, and that the city knew that the

improvements at Lily Lake were likely to cause death or serious bodily harm. These

allegations are sufficient to put the city on notice of the appellant’s claims against it and

state a valid claim for relief.

       The city asserts, and the district court concluded, that Jack’s death was not caused

by the improvements to Lily Lake, but rather by the Naegleria fowleri. But causation is

an issue of fact, often unsuitable for summary judgment. See, e.g., Osborne v. Twin

Town Bowl, Inc., 749 N.W.2d 367, 373 (Minn. 2008) (“Whether proximate cause exists

in a particular case is a question of fact for the jury to decide.”); Ingram v. Syverson, 674

N.W.2d 233, 237 (Minn. App. 2004) (“Where reasonable minds can differ on the issue of

causation, the jury should resolve the issue, and it would be error to grant summary

judgment.”), review denied (Minn. Apr. 20, 2004). Similarly, it is premature to reject

appellant’s assertion of causation on a motion to dismiss under rule 12.02(e). See Bodah,

663 N.W.2d at 553, (stating that in reviewing 12.02(e) dismissal, appellate courts

“consider only the facts alleged in the complaint, accepting those facts as true and must

construe all reasonable inferences in favor of the nonmoving party”).

       The city also asserts that the improvements to Lily Lake do not constitute an

artificial condition. Although Minnesota caselaw has not defined an artificial condition,

the comments to the Restatement (Second) of Torts provide that “a structure erected upon


                                              9
land is a non-natural or artificial condition, as are trees or plants planted or preserved, and

changes in the surface by excavation or filling, irrespective of whether they are harmful

in themselves or become so only because of the subsequent operation of natural forces.”

Restatement (Second) of Torts § 363 cmt b (1965). The city asserts that the

improvements to Lily Lake cannot be artificial conditions because they duplicate nature,

relying on Henry and Lawler v. Soo Line RR Co., 424 N.W.2d 313 (Minn. App. 1988),

review denied (Minn. Aug. 24, 1988). The district court also relied on Henry in

dismissing appellant’s claims. In Henry, this court held that “changes in natural

environments do not create an ‘artificial’ condition where the affected terrain duplicates

nature, except that an artificial condition will be found if there is some type of trap or

concealment.” Id. at 611. Appellant argues that Henry is distinguishable because the

Naegleria fowleri in Lily Lake were a trap or concealment. Again here, we conclude that

it is premature to reject appellant’s assertions.

       Notably, both Lawler and Henry were decided under a summary-judgment

standard, not under the notice-pleading standard that we apply here. See Lawler, 424

N.W.2d at 315 (stating summary-judgment standard of review); Henry, 406 N.W.2d at

610-11 (same). Moreover, in neither of those cases was there any indication that the

government land owner was aware of any potential for danger. See Lawler, 424 N.W.2d

at 317 (stating that there was no evidence “from which a fact finder could infer that the

state actually knew that the trail created a danger of death or serious bodily injury”);

Henry, 406 N.W.2d at 612 (approving district court finding that state had no knowledge




                                              10
that tree was likely to cause injury or death). Thus, it could not have been argued that the

dangerous condition was a trap or concealment.

       In explaining that an “artificial condition will be found if there is some type of trap

or concealment,” Henry cites Davies v. Land O’Lakes Racing Ass’n, 224 Minn. 248, 69

N.W.2d 642 (1955), 406 N.W.2d at 611. In Davies, the supreme court held the evidence

sufficient to support a finding of trespasser liability in a case arising out of a drowning in

a drainage catch basin. 244 Minn. at 259, 69 N.W.2d at 649 (1955). The supreme court

framed the issue as being whether “this body of water, in the state in which it was

permitted to exist . . . was a danger to trespassing children of tender age greater than the

danger present in the ordinary, open, natural, or artificial body of water?” Id. at 256, 69

N.W.2d at 647.1 Appellant asserts that the city created and maintained conditions at Lily

Lake that caused a trap or concealment in the form of Naegleria fowleri. We conclude

that appellant has sufficiently pleaded a “concealed danger case” under Davies. See id. at

256, 69 N.W.2d at 647.

       The city also relies on Martin v. Spirit Mountain Recreation Area Authority, in

which the supreme court held that the proper focal point to determine the existence of an

artificial condition was the sideward slope of a ski trail that the respondent alleged caused

his injuries, rather than the entire ski area. 566 N.W.2d 719, 723 (Minn. 1997). But

Martin too was a summary-judgment case subject to a different analysis than we apply

here. Id. at 721. Moreover, there does not appear to have been any allegation in Martin

1
 Although Davies was decided under the child-trespasser standard of section 339, its
analysis of traps or concealments nevertheless informs our analysis because, like section
335, section 339 requires that an injury be caused by an artificial condition.

                                              11
that anything other than the sideward slope of the ski trail caused the appellant’s injuries.

See id. at 720 (summarizing respondent’s allegation that “the sideward slope . . . was a

defective and dangerous condition”). Accordingly, Martin is of limited utility to our

analysis in this case.

       Because we conclude that appellant sufficiently pleaded claims against the city

that could, on some “evidence which might be produced consistent the with [appellant’s]

theory,” Walsh, 851 N.W.2d at 604 (quotation omitted), survive the city’s immunity

arguments, we reverse the district court’s dismissal of appellant’s claims against the city.

It may be that appellant ultimately will be unable to prevail at summary judgment or trial.

In addition to their dispute over whether Jack’s death was caused by an artificial

condition, the parties sharply dispute whether the city knew that the conditions at Lily

Lake were likely to cause death or serious bodily injury. We express no opinion

regarding the viability of appellant’s claims against the city under a summary-judgment

standard. See, e.g., DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (explaining that

“there is no genuine issue for trial when the nonmoving party presents evidence which

merely creates a metaphysical doubt as to a factual issue and which is not sufficiently

probative with respect to an essential element of the nonmoving party’s case to permit

reasonable persons to draw different conclusions”). We simply conclude that it is

premature at this juncture to dismiss these claims. Accordingly, we reverse the dismissal

of appellant’s claims against the city and remand for further proceedings consistent with

this opinion.




                                             12
                                             II.

       We next address appellant’s challenge to the dismissal of his claims against

Washington County and the Minnesota Department of Health. The district court

dismissed appellant’s claims against the county and department that were based on a

constructive possession theory as barred by recreational-use immunity. The court also

concluded, alternatively as to the constructive-possession claims, that neither the county

nor the department owed any duty to protect Jack. We agree that there was no duty

owed, and because that conclusion is dispositive of the claims against the county and the

department, we do not address the parties’ immunity arguments in relation to the county

and the department.

       A plaintiff cannot prevail on a negligence claim if the defendant owed no duty to

the plaintiff. See, e.g., Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011). The

determination of a whether a legal duty existed is a question of law reviewed de novo.

Id. at 22.

       The public-duty rule “requires that a governmental unit owe the plaintiff a duty

different from that owed to the general public in order for the governmental unit to be

found liable” in a negligence claim. Radke v. Cnty. of Freeborn, 694 N.W.2d 788, 793

(Minn. 2005). The public-duty rule is a specific application of the well-established

principle that “a person has no common law duty to prevent a third person from injuring

another unless there is some kind of special relationship.” Id.; see also Cracraft v. City of

St. Louis Park, 279 N.W.2d 801, 804 (Minn. 1979) (explaining that “the distinction

between public duty and special duty is not a doctrine unique to governmental torts”).


                                             13
Under the rule, it must be determined whether a duty is “owed to the public in general

(which cannot be the basis of a negligence action)” or “owed to individual members of

the public (which can be the basis of a negligence action).” Cracraft, 279 N.W.2d at 804.

       The district court applied the public-duty rule to conclude that neither the county

nor the department owed any special duty to Jack and thus that neither could be held

liable on a negligence claim. Appellant asserts that the district court’s public-duty

analysis is flawed because (1) the public-duty rule does not apply to all of his theories of

liability and (2) the county and the department did owe special duties to Jack.

                                             A.

       Appellant asserts that (1) the public-duty rule does not apply to all claims asserted

against governmental units and (2) he has alleged claims against the county and the

department to which the rule does not apply. The first assertion is accurate; the second is

not.

       As the Minnesota Supreme Court explained in Domagala, although there is no

duty to protect another from the conduct of a third party absent a special relationship,

“general negligence law imposes a general duty of reasonable care when the defendant’s

own conduct creates a foreseeable risk of injury to a foreseeable plaintiff.” 805 N.W.2d

at 23 (emphasis added). This general duty attaches without regard to whether there exists

a special relationship between the plaintiff and defendant. Id. at 23. “In other words,

when a person acts in some manner that creates a foreseeable risk of injury to another, the

actor is charged with an affirmative duty to exercise reasonable care to prevent his

conduct from harming others.” Id. at 26. As the court further explained in Domagala,


                                             14
however, the duty to protect another from one’s own conduct attaches only in the case of

misfeasance, or “active misconduct working positive injury to others.” Id. at 22

(quotation omitted). A duty does not attach when there is nonfeasance, or “passive

inaction or a failure to take steps to protect [others] from harm.” Id. at 22 (quotations

omitted).

       Applying these principles, we reject the county’s assertion that the public-duty

rule applies to all claims asserted against governmental units. Cracraft makes clear that

the public-duty rule arises out of the common-law rules regarding a person’s duty to

protect another person from the misconduct of a third party. 279 N.W.2d at 804-06.

Domagala reminds us that a person always has a duty to protect others from his own

affirmative misconduct. 805 N.W.2d at 23. Accordingly, if a governmental unit engages

in misfeasance that causes injury to an individual, and the governmental unit is not

otherwise immune, liability should attach. See Cracraft, 279 N.W.2d at 803 (explaining

that municipalities’ duties to comply with the law “are analogous to those owed by

private persons and a breach of such duties can be the basis of a lawsuit against the

municipality just as it can be the basis of a lawsuit against private tortfeasors”); cf.

Gatlin-Johnson ex rel. Gatlin v. City of Miles City, 291 P.3d 1129, 1133 (Mont. 2012)

(“The public duty doctrine was not intended to apply in every case to the exclusion of any

other duty a public entity may have. . . . It does not apply where the government’s duty is

defined by other generally applicable principles of law.”).

       Although there can be claims asserted against a governmental unit that do not

require application of the public-duty rule, appellant has not alleged any such claims


                                              15
here. Appellant asserts that the county breached a duty to order the city to close Lily

Lake, citing Minn. Stat. § 145A.04, subd. 8(a) (2012). Regardless of its statutory basis,

this is an allegation of nonfeasance, or the failure to act for the protection of another,

which must be analyzed under the public-duty rule. Put another way, there is no

allegation that the county engaged in affirmative conduct that put Jack in danger. Rather,

the allegation is that the county failed to protect Jack from dangerous conditions not

caused by the county. The public-duty rule applies to this allegation. Appellant asserts

that the department breached a duty to order the county to perform its statutory duty,

citing the department’s general supervisory authority under Minn. Stat. §§ 144.05, subd.

1(c), 145A.04, subd. 1 (2012). As with the allegations against the county, these are

allegations of failure to act for the protection of Jack, nonfeasance rather than

misfeasance. Accordingly, the public-duty rule applies to these allegations as well.

                                              B.

       Appellant argues that, even if applicable, the public-duty rule does not bar his

claims against the county and the department because each owed special duties to protect

Jack from the danger of Naegleria fowleri at Lily Lake. We disagree.

       In Cracraft, the Minnesota Supreme Court identified four factors that should be

identified in determining whether a governmental unit owes special, as opposed to public,

duties: (1) whether the governmental unit had actual knowledge of the dangerous

condition; (2) whether persons reasonably relied on representations made by the

governmental unit; (3) whether there is an ordinance or statute setting forth “mandatory

acts clearly for the protection of a particular class of persons rather than the public as a


                                              16
whole”; and (4) whether the governmental unit has increased the risk of harm. 279

N.W.2d at 806-07. The court has subsequently clarified that the Cracraft factors are “not

exhaustive” and that this is no “bright line test.” Radke, 694 N.W.2d at 794 (quotation

omitted). Although all four Cracraft factors “should . . . be considered, all four need not

necessarily be met for a special duty to exist.” Andrade v. Ellefson, 391 N.W.2d 2d 836,

841 (Minn. 1986). Notably, recent cases recognizing special duties focus on the third

Cracraft factor almost exclusively. See, e.g., Radke, 694 N.W.2d at 798 (explaining that

third factor was “overwhelmingly dominant” to determination that county owed special

duty to protect child-abuse victims); Andrade, 391 N.W.2d at 842-43 (citing third factor

as “decisive” in case holding that county owed special duty to protect children in licensed

daycare centers).

       Given the procedural posture, we accept as true appellant’s allegations that the

county and the department had knowledge of the dangerous condition at Lake Lily.

Thus, the first Cracraft factor might be met. But because none of the remaining

factors—including the crucial third factor—is met, we conclude that neither the county

nor the department owed special duties to protect Jack.

       With respect to the second Cracraft factor appellant asserts that the City, County

and/or State posted signs at Lily Lake warning of certain risks, including the risk of

drowning in the absence of lifeguards, and the risk of Eurasian milfoil, an aquatic weed

and that “by warning of the open and obvious risk of drowning, the signs raise the

reasonable, negative inference that no hidden risks of comparable danger would be

present.” Appellant concedes that it is unclear whether the department or the county was


                                             17
involved in posting the warning signs. Even assuming that the department and/or the

county are responsible for the signs, these are not the types of representations that our

supreme court has contemplated as imposing a duty on a governmental unit. See

Cracraft 279 N.W.2d at 807 (rejecting a negative-inference argument of the type

appellant raises here, explaining that a letter written by an inspector could be relied on

with respect to enumerated problems, but that “no grounds for reasonable reliance exist

with regard to hazards not set forth in the letter”). Accordingly, the second Cracraft

factor is not met.

       With respect to the third Cracraft factor, appellants cite portions of the Local

Public Health Act, Minn. Stat. §§ 145A.01-.17 (2012). Nothing in these statutes,

however, is aimed at protecting a particular class of individuals, as has been true in cases

in which the supreme court has recognized special duties. See Radke, 694 N.W.2d at 797

(concluding that acts mandated by Child Abuse Reporting Act are for protection of “a

particular class of persons—children who are identified in suspected abuse or neglect

reports received by the county”); Andrade, 391 N.W.2d at 842 (concluding that Welfare

Licensing Act “clearly mandates that small children in a licensed day-care facility are a

particular protected class”). Accordingly, the third Cracraft factor is not met.

       With respect to the fourth Cracraft factor, appellant asserts that the county and the

department increased the risk of harm by failing to close or warn of the dangers at Lily

Lake. The department persuasively asserts that this is an allegation of a failure to

decrease the harm, rather than of conduct that increased the harm. The fourth Cracraft

factor is not met when the risk of harm remains the same before and after the


                                             18
governmental unit’s alleged misconduct. See Cracraft, 279 N.W.2d at 808; see also

Andrade, 391 N.W.2d at 843 (“Increasing the risk goes to whether a legal duty with tort

sanctions should be imposed on the municipality; decreasing the risk goes to whether,

assuming the legal duty exists, it was breached.”). Accordingly, this fourth Cracraft

factor is not met.

       Based on the foregoing, we conclude that district court did not err by concluding

that the duties imposed on the county and the department by the Local Public Health Act

are public duties that cannot support a negligence cause of action. Accordingly, we

affirm the district court’s dismissal of appellant’s claims against the county and the

department.

       Affirmed in part, reversed in part, and remanded.




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