John Doe 101, et al., Appellants,

This opinion will be unpublished and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
A16-1650

John Doe 101, et al.,
Appellants,

vs.

Matthew Feeney, et al.,
Defendants,

Walden Entertainment a/k/a Samaritan Casting, LLC,
Respondent,

Werc Werk Works,
Respondent,

Allensworth Entertainment, Inc.,
Respondent,

White Wolf Entertainment, Inc.,
Respondent.

Filed April 10, 2017
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-CV-14-17039

Michael A. Bryant, Bradshaw & Bryant, PLLC, Waite Park, Minnesota; and

Patrick W. Noaker, Noaker Law Firm, LLC, Minneapolis, Minnesota (for appellants)

James A. Garlough, Garlough Law Firm, PLLC, Bloomington, Minnesota (for respondent
Samaritan Casting)

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Michael S. Kreidler, Stich, Angell, Kreidler, Dodge & Unke, P.A., Minneapolis, Minnesota
(for respondent Werc Werk Works)

John C. James, John M. James, Minnetonka, Minnesota; and

John D. Hagen, Jr., Minneapolis, Minnesota (for respondent Allensworth Entertainment)

Robert S. Halagan, Halagan Law Firm, Ltd., Buffalo, Minnesota; and

John P. Borger, Faegre Baker Daniels LLP, Minneapolis, Minnesota (for respondent White
Wolf Entertainment, Inc.)

Considered and dec ided by Larkin, Presiding Judge; Connolly, Judge; and Reyes,
Judge.

U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellants challen ge the district court’s summary -judgment dismissal of their
negligence-based claims against respondent s, which stemmed from an extras casting
director’s sexual abuse of appellants at his home. We affirm.
FACTS
In 2006, Matthew Feeney created Walden Entertainment LLC (Walden). Walden
cast extras for local film productions. Feeney was its sole owner and employee. At that
time, Walden was the only extras casting company in Minnesota. Feeney worked with
hundreds of different producers in extras casting , and none had the ability to prevent
Feeney from casting extras for other producers. Some of the extras casting agreements
3
between Feeney and the production companies wer e memorialized in written contracts,
others simply involved a “verbal agreement and a handshake.”
Feeney met appellants John Doe 101 and John Doe 102 in 2007 or 2008. Appellants
were minor children who aspired to be actors. Feeney provided appellants with casting
opportunities, acting classes, and coaching. Between 2009 and 2011, appellants went to
Feeney’s home numerous times for acting class es and coaching, and to play games and
watch movies. Appellants often spent the night at Feeney’s home. Appellants also went
on outings with Feeney and other children, including ca mping trips. Appellants’ parents
consented to these contacts with Feeney. Unbeknownst to appellants’ parents, Feeney had
pleaded guilty to fourth- and fifth-degree criminal sexual conduct in 1992.
Between May 2009 and the summer of 2011, Feeney sexually abused John Doe 101
multiple times. Between December 2009 and November 2011, Feeney sexually abused
John Doe 102 multiple times. In March 2013, Feeney pleaded guilty to second- and fourth-
degree criminal sexual conduct based on his abuse of appellants.
In January and February 2014, appellants sued Feeney and respondents Samaritan
Casting LLC (Samaritan) , Werc Werk Works (WWW) , and Allensworth Entertainment
Inc. (AEI), alleging sexual abuse and negligence claims against Feeney; negligence claims
against Samaritan, WWW, and AEI; and negligent-supervision, negligent-retention, and
vicarious-liability claims against Samaritan and WWW. In October 2015, appellants
amended their complaint to add respondent White Wolf Entertainment Inc. (White Wolf)
as a defendant, alleging negligence, negligent-supervision, negligent-retention, and
vicarious-liability claims.
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The district court granted summary judgment for each of the respondents. In July
2016, appellants’ remaining claims against Fenney were tried to a jury. Because the district
court had granted appellants’ motion for partial summary judgment against Feeney on the
issue of liability, the trial was limited to the issue of damages. The jury awarded John Doe
101 and John Doe 102 damages of $974,281.05 and $1,098,796.93, respectively. The
district court adopted the jury’s verdicts and entered judgments against Feeney. Appellants
challenge the district court’s pretrial grant of summary judgment for respondents.
D E C I S I O N
“A motion for summary judgment shall be granted when the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and that either party is entitled to a judgment
as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). No genuine
issue of material fact exists “ 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 e lement of the nonmoving party’s case to permit reasonable
persons to draw different conclusions.” DLH, Inc. v. Russ , 566 N.W.2d 60, 71 (Minn.
1997). If reasonable minds might draw different conclusions from the evidence presented,
summary judgment is ina ppropriate. Rochester City Lines, Co. v. City of Rochester , 868
N.W.2d 655, 665 (Minn. 2015).
This court reviews a district court’s grant of summary judgment de novo. Dukowitz
v. Hannon Sec. Servs., 841 N.W.2d 147, 150 (Minn. 2014). “We view the evidence in the
light most favorable to the party against whom summary judgment was granted to
5
determine whether there are any genuine issues of material fact and whether the district
court correctly applied the law.” Id. We consider the district court’s sum mary-judgment
dismissal of appellants’ claims against each respondent in turn.
I.
Stephanie Allensworth met Feeney around 2002 . In 2008, Allensworth was an
agent and part owner of NXT Entertainment Inc. (NXT), a talent agency. In March 2008,
appellants’ mother signed agency-talent contracts on behalf of appellants with NXT. The
contracts authorized NXT to “negotiate contracts” and “advise, counsel or direct”
appellants in “the development and/or advancement of [their] professional career[s].”
After signing the contracts, appellants and appellants’ mother believed that Allensworth
was appellant s’ agent. According to appellants’ mother, in 2008, Allensworth advised
appellants to meet with Feeney in an effort to obtain roles as extras in movie and television
projects.1 Allensworth explained that these extra, nonspeaking roles would help appellants
obtain speaking roles. NXT never secured employment for either appellant.
In December 2008, NXT ceased operations , and Allensworth formed AEI.
Allensworth is the sole employee of AEI. AEI did not have a written agreement with
appellants. AEI sent appellants on auditions and forwarded videotaped auditions to

1 The parties disagree regarding whether Allensworth referred appellants to Fee ney.
Allensworth submitted an affida vit in support of summary judg ment stating that she did
not “recall referring Plaintiffs John Doe 101 or John Doe 102 or any of their other family
members to Defendant Fee ney or Walden Entertainment.” According to Allensworth,
Feeney referred appellants to NXT. For purposes of our summary-judgment analysis, we
assume Allensworth made the referral.
6
entertainment companies on appellants’ behalves. The auditions and videotapes did not
result in further auditions or employment for appellants.
Appellants contend that the district court erred in granting AEI summary judgment
on their negligence claims. “To recover on a claim of negligence, a plaintiff must prove:
(1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) that the
breach of the duty was a proximate cause of the injury.” Doe 169 v. Brandon, 845 N.W.2d
174, 177 (Minn. 2014). A person generally “does not owe a duty of care to another—e.g.,
to aid, protect, or warn that person—if the harm is caused by a third party’s conduct.” Id.
at 177-78. This is true even when the person “realizes or should realize that action on her
part is necessary for another’s aid or protection.” Bjerke v. Johnson, 742 N.W.2d 660, 665
(Minn. 2007) (quotation omitted). However, a person does have a duty to protect another
from harm caused by a third party if “(1) there is a special relationship between the parties;
and (2) the risk is foreseeable.” Id. The existence of a duty of care is a question of law
that this court reviews de novo. Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011).
The supreme court has identified three situations in which a special relationship
exists such that a person may have a duty to protect another from a third party. Bjerke, 742
N.W.2d at 665.
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 individual, whether voluntarily or as
required by law, has custody of another person under
circumstances in which that other person is deprived of normal
opportunities of self -protection. The third arises when an
individual assu mes responsibility for a duty that is owed by
another individual to a third party.
7
Id. (citations and quotations omitted). For example, a person has a duty to act when the
person “undertakes, gratuitously or for consideration, to render services to anot her which
he should recognize as necessary for the protection of a third person or his things.” Walsh
v. Pagra Air Taxi, Inc., 282 N.W.2d 567, 571 (Minn. 1979) (quoting Restatement (Second)
of Torts § 324A (1965)).
Appellants contend that the third spe cial-relationship scenario is present here .
Appellants argue that “Allensworth agreed to perform services that Allensworth should
have recognized included the protection of Doe 101 & 102 ,” that “[t]he written contract
provided that Allensworth would negotiate contracts on the Appellants’ behalf and advise,
counsel and direct [appellants] in the development and advancement of their professional
acting careers,” that “ [t]hese services necessarily include an agreement to not place
[appellants] in danger,” and that “[w]hen Allensworth agreed to represent [appellants], it
was her job to screen persons to whom she sent these children.” A ppellants therefore
conclude that there “was a special re lationship between Allensworth and [appellants]
giving rise to a duty to protect” appellants from Feeney.
Appellants do not cite any caselaw or other authority establishing that a child actor’s
agent undertakes to render services that she should recognize are necessary for the
protection of the child. When this cour t pressed appellants for legal authority supporting
their position at oral argument, appellants conceded that there is no authority on point.
Moreover, the record in this case in no way suggests that Allensworth undertook to render
services to appellants that she should have recognized were necessary for their protection.
8
In sum, neither the law nor the record supports appellants’ contention that
Allensworth had a special relationship with them that gave rise to a duty to protect them
from Fee ney’s abuse. The district court therefore did not err by granting summary
judgment for AEI.
II.
Feeney arranged for John Doe 102 to work as an extra for one day in an episode of
“Monster Quest,” a television program. White Wolf produced that episode.2 Appellants’
father accompanied John Doe 102 during filming of the episode on September 29, 2009 .
Feeney was not present for the filming.
John Doe 102 contends that the district court erred in granting summary judgment
for White Wolf on his negligence, negli gent-supervision, negligent-retention, and
vicarious-liability claims. John Doe 102 argues that there is a material factual dispute
regarding whether Feeney was White Wolf’s employee or agent. John Doe 102 further
argues that there was a special relationship between White Wolf and John Doe 102
“through employee/agent Matthew Feeney” giving rise to a “duty of care to protect children
from harm who were involved with the production of [‘Monster Quest’].”
Under the common-law doctrine of respondeat superior, an employer may be held
vicariously liable for the torts of an employee committed within the course and scope of

2 The parties disagree regarding whether White Wolf produced the episode. Doug Hajicek,
the president and owner of White Wolf, submitted an affidavit in support of summary
judgment stating that “White Wolf contracted with Ilexfilmworks, Inc. (‘Iflex’) to act as
the producer for a re-enactment sequence” and “Ilex subseq uently contracted with
[Walden] to obtain extras.” For the purpose of our summary-judgment analysis, we assume
that White Wolf produced the “Monster Quest” episode.
9
employment. Urban v. Am. Legion Dep’t of Minn. , 723 N.W.2d 1, 4 (Minn. 2006).
Negligent-supervision and negligent -retention claims require the existence of an
employment relationship. See L.M. ex rel. S.M. v. Karlson , 646 N.W.2d 537, 545 (Minn.
App. 2002) (stating that negligent supervision requires that the employee’s actions
occurred within the scope of employment), review denied (Minn. Aug. 20, 2002); Yunker
v. Honeywell, Inc. , 496 N.W.2d 419, 422 (Minn. App. 1993) (noting that negligent
retention imposes liability for an employee’s intentional tort), review denied (Minn.
Apr. 20, 1993). An employer is not vicariously liable for an independent contractor’s
negligence. Conover v. N. States Power Co., 313 N.W.2d 397, 403 (Minn. 1981).
In determining whether an employment relationship ex ists, this court c onsiders:
“(1) the right of the employer to control the manner and means of performance of the work;
(2) the mode of payment; (3) furnishing of material or tools; (4) control of the premises
where the work is to be performed; and (5) right of discharge.” Iverson v. Indep. Sch. Dist.
No. 547, 257 N.W.2d 572, 573 (Minn. 1977). The most important factor is “the right of
the employer to control the means and manner of performance.” Guhlke v. Roberts Truck
Lines, 268 Minn. 141, 143, 128 N.W.2d 324, 326 (1964) . “The determinative right of
control is not merely over what is to be done, but primarily o ver how it is to be done.”
Frankle v. Twedt, 234 Minn. 42, 47, 47 N.W.2d 482, 487 (1951). “Where the evidence is
free from conflict as to the controlling facts, the question of whether a person is an
employee becomes one of law.” Darvell v. Paul A. Laurence Co. , 239 Minn. 55, 59, 57
N.W.2d 831, 834 (1953).
10
There is a similar long-standing common law rule that “a principal is liable for the
act of an agent committed in the course and within the scope of agency.” Bedow v. Watkins,
552 N.W.2d 543, 547 (Minn. 1996). “A principal -agent relationship results from the
manifestation of consent by one person to another that the other shall act on the first
person’s behalf and subject to his control; and the other must consent so to act.” White v.
Boucher, 322 N.W.2d 560, 566 (Minn. 1982). “The existence of an agency relationship is
a question of fact, and should be decided by the jury unless the evidence is conclusive.”
Urban ex rel. Urban v. Am. Legion Post 184 , 695 N.W.2d 153, 164 (Minn. App. 2005)
(citation omitted), aff’d sub nom. Urban v. Am. Legion Dep’t of Minn., 723 N.W.2d at 1.
In sum, the threshold question regarding John Doe 102 ’s negligent-supervision,
negligent-retention, and vicarious -liability claims against White Wolf is whether Feeney
was an employee or agent of White Wolf.
The record indicates that Feeney and Walden provided extras to White Wolf for
multiple “Monster Quest” episodes. White Wolf paid Walden for Feeney’s recruitment of
extras for “Monster Quest” on an episode -by-episode basis. White Wolf did not provide
Feeney with any direction regarding how to cast the extras, and Feeney did not provide
White Wolf with any written or oral report s regarding his casting efforts. While working
with White Wolf, Feeney also worked with other production companies on other projects.
Our independent review of the record does not reveal a material factual dispute
regarding whether Feeney was an employee or agent of White Wolf. Feeney denied such
a relationship in his deposition testimony, and Feeney did not have an employment
agreement with White Wolf. White Wolf did not pay Feeney a salary. White Wolf did not
11
control the means or manner of Feeney’s performance or the premises where Fee ney’s
work was performed . And White Wolf did not provide Feeney with material or tools .
There is no evidence from which a reasonable mind could conclude that Feeney was
employed by, or an agent of, White Wolf. Instead, the only reasonable conclusion that can
be drawn from the record is that Feeney was an independent contractor who supplied extras
for a number of different production companies, including White Wolf. The district court
therefore did not err in grantin g summary judgment for White Wolf on John Doe 102’s
negligent-supervision, negligent-retention, and vicarious-liability claims.
Our de novo review of the record also does not reveal evidence of a special
relationship between White Wolf and John Doe 102 that could have given rise to a duty to
protect John Doe 102 from abuse in Feeney’s home. John Doe 102 was not acting as an
extra when the abuse occurred, and the abuse did not occur on the “Monster Quest” set.
The evidence does not suggest that White Wo lf ever had custody of John Doe 102 or
assumed responsibility for John Doe 102 ’s protection during filming . To the contrary ,
industry practice required an adult guardian of any minor extra to be present on the set. In
fact, John Doe 102’s father was present during filming.
In sum, John Doe 102 has not demonstrated, and the record does not reveal, how
the limited relationship between White Wolf and John Doe 102 was a special relationship
that gave rise to a duty to protect him from Feeney’s abuse. The district court therefore
did not err in granting White Wolf summary judgment on John Doe 102’s negligence claim.
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III.
In 2010, Feeney told appellants’ father that he was employed by the production
company for the movie “The Convincer.” “The Convincer” was later renamed “Thin Ice.”
WWW was the production company for “Thin Ice.” 3 Feeney was the extras -casting
director for the film and provided “background artists for the set for the length of the
shooting of the movie.” Feeney told appe llants’ father that he could cast appellants as
extras in the film and advised appellants’ father that appellants would benefit from
“coaching sessions” at his home.
“Thin Ice” was filmed in Minnesota between February 2010 and March 2010. John
Does 101 and 102 appeared as extras in the film. There were no auditions or casting calls
for these parts. John Doe 101 was accompanied by his mother, father, and minor sister
when he worked as an extra during filming on February 11, and by an adult brother and
adult sister during filming on March 1. John Doe 102 was accompanied by his adult brother
when he worked as an extra during filming on February 9 . Feeney also appeared as an
extra in the film, but he did not supervise appellants on set.
Appellants contend that the district court erred in granting summary judgment for
WWW on their negligence-based claims. Appellants argue that there is a material factual
dispute regarding whether Feeney was WWW’s employee or agent. Appellants rely on

3 The parties disagree regarding whether WWW produced “Thin Ice.” Mark Steele, the
vice president of production for WWW, submitted an affidavit in support of summary
judgment stating that “Thin Ice” was produced by Ten Dollar Trophy LLC, a separate legal
entity from WWW. For the purpose of our summary-judgment analysis, we assume that
WWW produced “Thin Ice.”
13
Mark Steele’s deposition, noting that he “did not know who was in charge of the casting
procedures for Thin Ice, . . . did not know who Matthew Feeney reported to, . . . did not
know how Feeney was paid, who actually paid Feeney or when Matthew Feeney was hired
as the Extr as Casting Director .” Appellants further argue that there was a special
relationship between WWW and appellants “through employee/agent Matthew Feeney”
giving rise to a “duty of care to protect children from harm who were involved with the
production of [‘Thin Ice’].”
Our independent review of the record does not reveal a material factual dispute
regarding whether Feeney was an employee or agent of WWW. Steele’s lack of knowledge
regarding the details of Feeney’s extras-casting agreement for “Thin Ice” would not lead a
reasonable mind to conclude that Feeney was an employee or agent of WWW.4 The record
shows that there was no agreement regarding the procedure Feeney would use to provide
extras for “Thin Ice,” Feeney was paid by Walden and not WWW, WWW did not control

4 During Feeney’s deposition, Feeney asserted his Fifth Amendment right against self -
incrimination when asked questions regarding his abuse of appellants, including questions
regarding whether he abused appellants while he was the extras-casting director for “Thin
Ice.” Appellants contend that in each of these instances they “are entitled to inferences in
their favor.” In a civil case, a factfinder may draw an adverse inference from a party ’s or
witness’s invocation of the Fifth Amendment right against self-incrimination. Wartnick v.
Moss & Barnett, 490 N.W.2d 108, 111 n.1 (Minn. 1992); see In re Marriage of Crockarell,
631 N.W.2d 829, 831 (Minn. App. 2001) (noting that the district court may take appropriate
measures to ensure that assertion of the Fifth Amendment right against self -incrimination
does not unfairly prejudice an adverse party), review denied (Minn. Oct. 16, 2001). The
district court refused to draw an inference against WWW regarding Feeney’s relationship
with WWW, reasoning that Feeney answered all questions regarding that re lationship and
only invoked his right against self-incrimination when asked about his abuse of appellants.
Because Feeney did not invoke the Fifth Amendment in response to any question regarding
his relationship with WWW, appellants are not prejudiced by the invocation and are not
entitled to a favorable inference regarding Feeney’s relationship with WWW.
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the means or manner of Feeney’s performance, and WWW did not provide Feeney with
material or tools.
The only reasonable conclusion to be drawn from the record regarding Feeney’s
relationship with WWW is that he was an independent contrac tor who supplied extras for
“Thin Ice.” The district court therefore did not err in granting summary judgment for
WWW on appellant s’ negligent -supervision, negligent -retention, and vicarious -liability
claims.
As to the negligence claim s, the record does not suggest that WWW had a special
relationship with appellants that gave rise to a duty to protect them from Feeney’s abuse.
There is no evidence supporting a reasonable conclusion that appellants were entrusted to
WWW’s care . P ursuant to industry pract ice, appellants were accompanied by adult
guardians while they worked as extras on the set of “Thin Ice.”
In sum, a ppellants have not demonstrated , and the record does not reveal, how
WWW’s limited involvement with appellants created a special relationship that could have
given rise to a duty to protect them from Feeney’s abuse. The district court therefore did
not err in granting WWW summary judgment on appellants’ negligence claims.
IV.
In February 2012, Feeney was criminally charged with child sexual abuse in
Massachusetts, and Jeremy Gustafson took control of Walden . Previously, Gustafson
occasionally worked for Walden on a casual, on -call basis, “assisting with casting events
and auditions as well as equipment rentals a nd the like.” After le ss than one week,
Gustafson informed Feeney that he did not think Walden was “salvageable” and that
15
Gustafson could no longer be involved with the company. Feeney closed Walden and sold
its assets. In March 2012, Gustafson started Samaritan. Samaritan p urchased computers,
office equipment, and Walden’s domain name and e -mail lists from Walden. Gustafson
and Feeney agreed on a $42,000 purchase price for these assets and agreed that Feeney
would receive $1,000 and 50% of Samaritan’s profits until the tota l purchase price was
paid. Walden sold its remaining assets to other businesses. In December 2013, Gustafson
sold Samaritan.
Appellants contend that Samaritan is liable for their claims against Walden because
“Walden’s transfer of assets to Samaritan constituted a de facto merger.”5
“The general rule is that where one company sells or otherwise transfers all its assets
to another company, the purchasing company is not liable for the debts and liabilities of
the transferor.” J.F. Anderson Lumber Co. v. Myers, 296 Minn. 33, 37, 206 N.W.2d 365,
368 (1973). In the past, Minnesota courts recognized a de facto merger exception to this
general rule. See id. at 37-38, 206 N.W.2d at 368-69 (noting exception for situations where
“the transaction amounts to a consolidation or merger of the corporation” (quotation
omitted)).
In 2006, the Minnesota Legislature amended the LLC transfer statute , adding the
following language:
A disposition of a ll or substantially all of a limited liability
company’s properties and assets under this section is not
considered to be a merger or a de facto merger pursuant to this

5 In the district court, appellants also claimed that Walden’s assets were fraudulently
transferred to Samaritan. The district court rejected that claim, and appellants do not
challenge the district court’s decision on appeal.
16
chapter or otherwise. The transferee is not liable solely because
it is deemed to be a continuation of the transferor.

2006 Minn. Laws ch. 250, art. 2, § 31, at 406.
Under the plain language of the 2006 amendment, the de facto merger exception
does not apply to LLCs. Because appellants’ claims against Samaritan are based on the
exception, the claims fail, and the district court did not err in granting summary judgment
for Samaritan.
In conclusion, our de novo review of the district court’s grant of summary judgment
for each respondent reveals that there is no genuine issue of material fa ct precluding
summary judgment and that each respondent is entitled to judgment as a matter of law. We
are sympathetic to appellants’ claims and their likely inability to satisfy their judgments
against Feeney. And we in no way intend to minimize the har m that appellants have
suffered. But under current law, the record could not lead a reasonable mind to conclude
that any respondent is liable for F eeney’s abuse. We therefore affirm the district court’ s
summary dismissal of appellants’ claims against all respondents.
Affirmed.