Renee Dianne Florek, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0997

Renee Dianne Florek,
Respondent,

vs.

Randall Lee Vannet,
Appellant.

Filed March 25, 2019
Affirmed
Smith, Tracy M., Judge

Itasca County District Court
File No. 31-CV-15-2675

Christy L. Hall, Abigail Hencheck (certified student attorney), Gender Justice, St. Paul,
Minnesota (for respondent)

Alan B. Fish, Dennis H. Ingold, Alan B. Fish, P.A., Roseau, Minnesota (for appellant)

Considered and decided by Halbr ooks, Presiding Judge; Worke, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Randall Lee Vannet challenges the district court’s d enial of his motion
for judgment as a matter of law, arguing that respondent Renee Dianne Florek’s
negligence-per-se claim based on violation of a criminal-sexual -conduct statute is not
cognizable. We affirm.

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FACTS
Florek and Vannet were in a romantic relationship for about fo ur and a half years
beginning late 2008. In 2015, Flo rek asserted three claims agai nst Vannet: battery,
negligence, and negligence per se. Florek later voluntarily dismissed the negligence claim,
and the claims for battery and negligence per se were tried to a jury.
Florek testified that, on January 18, 2013, Vannet visited Flor ek in her home and
the two had consensual intercourse. Florek said that she later took a sedative pain
medication to ease cancer-related pain and that she was thereaf ter “unconscious.” She
testified that, when she next sa w Vannet several days later, he a s k e d h e r f o r s e x . S h e
declined his request, and he responded, “[T]hat’s okay, babe, because last time I was here
I took you two more times.” Florek claimed that she was unaware of and had not consented
to that sexual contact.
Vannet disputed Florek’s version of events. He testified that, on January 18, the two
had sexual intercourse a number of times—“[s]ort of an ongoing sleepy sex throughout the
night”—but that the sexual contact was consensual and Florek was not physically helpless.
On the special verdict form, the jury answered, “No,” to the qu estion regarding
battery: “Did Defendant intentionally cause harmful or offensive contact with Plaintiff on
January 18, 2013?” The jury answe red, “Yes,” to the two questio ns regarding negligence
per se: “Did Defendant intentionally sexually penetrate the Plaintiff on January 18, 2013?”
and “Did the Defendant know or have reason to know that the Pla intiff was physically
helpless at the time he sexually penetrated the Plaintiff?” The jury awarded Florek $5,000
in damages.

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After trial, Vannet moved for judgment as a matter of law, argu ing that the verdict
was contrary to law because a negligence-per-se claim cannot be based on violation of the
criminal-sexual-conduct statute. The district court denied the motion.
This appeal follows.
D E C I S I O N
A district court’s decision to deny a motion for judgment as a m a t t e r o f l a w i s
reviewed de novo. Christie v. Estate of Christie, 911 N.W.2d 833, 838 n.5 (Minn. 2018).
Vannet argues that the district court erred by recognizing Florek’s negligence-per-se claim.
He also argues that the district court erroneously created a new cause of action for sexual
abuse. We begin with negligence per se.
“Negligence per se is a form of ordinary negligence that results from violation of a
statute. A per se negligence rule substitutes a statutory stand ard of care for the ordinary
prudent person standard of care, such that a violation of a statute is conclusive evidence of
duty and breach.” Anderson v. State, Dep’t of Nat. Res. , 693 N.W.2d 181, 189-90 (Minn.
2005) (quotations omitted). Florek based her claim of negligenc e per se on violation of
Minn. Stat. § 609.344, subd. 1(d ) (2010), which prohibits a per son from “engag[ing] in
sexual penetration with another” when the person “knows or has reason to know that the
complainant is mentally impaired, mentally incapacitated, or physically helpless.”
“For a statutory violation to s atisfy the duty and breach elements”—in other words,
for negligence per se to apply—“the person harmed by the violation must be among those
the legislature intended to protect, and the harm must be of the type the legislature intended
to prevent by enacting the statute.” Anderson, 693 N.W.2d at 190. Vannet does not argue

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that this test is not met—he does not challenge that Florek is a person intended to be
protected by the statute or that the harm here was of the type that the statute is intended to
prevent.
Instead, Vannet argues that viola tion of Minn. Stat. § 609.344, subd. 1(d), cannot
be a predicate for a negligence-p er-se claim because violation of the statute requires
intentional conduct and intenti onal conduct cannot give rise to a negligence claim. He
argues that, “[f]rom the beginning of this case, [Florek] alleged that [Vannet] intentionally
sexually penetrated Florek twice while she was physically helpl ess or unable to consent.”
This alleged criminal sexual conduct, he asserts, could properl y serve as the basis for the
intentional tort of battery but could not be the basis of negligence per se.
Vannet acknowledges the absence of caselaw holding that violation of the criminal-
sexual-conduct statute cannot constitute negligence per se. Instead, he draws from general
n e g l i g e n c e c a s e s t o s u p p o r t h i s argument. He relies particularl y on Murphy v. Barlow
Realty Co. which states that negligence “ can only result from conduct unc ontrolled by
intent.” 289 N.W. 563, 565 (Minn. 1939). In Murphy, the complaint alleged that the
defendants “wil[l]fully and inte ntionally used improper materia ls and construction
methods and purposely concealed the defective portions so that those foreseeably likely to
use the premises would be lulled and deluded into belief of safety and security.” 289 N.W.
at 564. The supreme court decided that those allegations were “hardly short of intentional
and fraudulent creation of a trap” and thus could not support a claim of ordinary negligence.
Id. at 565. The defendants in Murphy intended more than just to commit the acts that

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produced a defective building. They intended to cause a particu lar result—the plaintiffs
being deceived regarding the safety of the building.
The intent required for violati on of Minn. Stat. § 609.344, sub d. 1(d), is different.
As Vannet asserts, and as the special verdict questions require d, to establish violation of
the statute, Florek had to prove that Vannet intentionally sexually penetrated Florek when
he knew or should have known she was physically helpless. The required intent is only to
commit the act (sexual penetration)—intent to cause a particular result, such as the victim
being harmed or offended, is not required. See State v. Holloway , 916 N.W.2d 338, 350
(Minn. 2018) (“[Section 609.344, subdivision 1,] require[s] the actor to have the general
intent to engage in sexual penetration . . . with the complaina nt.”). In criminal-law terms,
criminal sexual conduct is a gen eral-intent crime, not a specif ic-intent crime. “General
intent is satisfied when a defendant intentionally engaged in the prohibited conduct.” State
v. Dorn, 887 N.W.2d 826, 830 (Minn. 2 016) (quotation omitted). Specifi c intent is “an
intent to cause a particular result.” State v. Shane, 883 N.W.2d 606, 610 (Minn. App. 2016)
(quotation omitted).
Because Murphy addressed a negligence claim based on intent to cause a particular
result, not just an intent to act, it does not support Vannet’s argument.1 But Vannet also
relies on a line of insurance cases involving intentional-act exclusions in liability policies.

1 To the extent that Vannet argues that the only intent alleged was an intent to cause a
particular result, the argument is unconvincing. The complaint does not allege that Vannet
intended to harm or offend Florek by sexually penetrating her.

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The supreme court has explained the effect and application of an intentional-act exclusion
in an insurance policy:
Where a comprehensive genera l liability policy contains an
intentional act exclusion, there is no coverage for injury where
the insured acts with the specific intent to cause bodily injury.
The specific intent to cause injury requires that the insured
intended the harm itself, not tha t the insured intended to act.
Under this subjective standard, the intent to injure may be
established: (1) by proof of an actual intent to injure, or (2) by
inferring intent as a matter of law. . . .

The general rule is that intent is inferred as a matter of
law when the nature and circumstances of the insured’s act are
such that harm is substantially certain to result.

B.M.B. v. State Farm Fire & Cas. Co., 664 N.W.2d 817, 821 (Minn. 2003) (quotations and
citations omitted).
The insurance cases cited by Vannet— Lehmann, R.W., and Auto-Owners—all hold
that the specific intent to harm is inferred as a matter of law when an insured sexually
assaults another. Estate of Lehmann v. Metzger , 355 N.W.2d 425, 426 (Minn. 1984) (“In
construing the ‘intentional act ’ exclusion of liability insuran ce policies where the
underlying claim is that the insured intentionally sexually assaulted the victim, an intention
to inflict injury will be inferred as a matter of law.”); see also Auto-Owners Ins. Co. v.
Todd, 547 N.W.2d 696, 699 (Minn. 1996); R.W. v. T.F. , 528 N.W.2d 869, 873 (Minn.
1995). In other words, insurance law imputes to an insured the specific intent to cause harm
when committing sexual assault; the general intent to commit the acts constituting sexual
assault is automatically elevated to the specific intent to harm.

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But Vannet fails to explain why a rule of interpretation for i nsurance policies should
inform the applicability of negligence per se in cases where the tortfeaser has only an intent
to act, not an intent to cause the intended result. Insurance policies are contracts, and courts
have long developed various inte rpretive rules specific to insurance. And it has not been
the courts’ objective in developing insurance law to ensure consistent use of language with
other substantive areas of law. See Cont’l W. Ins. Co. v. Toal, 244 N.W.2d 121, 125 (Minn.
1976) (“[T]he presumption in tort and criminal law that a perso n intends the natural and
probable consequences of his inte ntional acts has no applicatio n to the interpretation of
terms used in insurance contracts.”). We are not persuaded that insurance law precludes
Florek’s claim.
The jury was asked to determine whether Vannet committed the i ntentional tort of
battery by intentionally causing harmful or offensive contact w ith Florek. It decided that
he did not—in other words, he did not intend the harm. 2 The jury was also asked whether
Vannet intentionally sexually penetrated Florek while knowing o r having reason to know
that she was physically helpless. It decided that he did—in oth er words, he intended the
sexual contact, even if he did not intend the harm. Vannet thus violated the criminal-sexual-
conduct statute and, under the doctrine of negligence per se, breached a duty that he owed

2 In the reply brief, Vannet argues that “the jury found that [h is] contact with Florek was
neither harmful nor offensive” without rendering any verdict on t h e i s s u e o f i n t e n t .
Vannet’s argument is not consistent with the award of damages f or Florek’s emotional
distress. The only harmonizing c onstruction of the special verd ict is that Vannet did not
have the necessary intent for battery. See Daly v. McFarland, 812 N.W.2d 113, 125 (Minn.
2012) (“A special verdict form is to be liberally construed to give effect to the intention of
the jury and on appellate review it is the court’s responsibility to harmonize all findings if
at all possible.” (quotation omitted)).

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to Florek. See Anderson, 693 N.W.2d at 189-90. Vannet notes, and Florek agrees, that there
is no case where a person who co mmitted sexual assault was foun d liable on a claim of
negligence. On appeal, the district court is not presumed to have erred; the party asserting
error bears the burden to make it “appear affirmatively before there can be reversal.”
Midway Ctr. Assocs. v. Midway Ctr., Inc. , 237 N.W.2d 76, 78 (Minn. 1975) (quotation
omitted); see also Horodenski v. Lyndale Green Townhome Ass’n , 804 N.W.2d 366, 372
(Minn. App. 2011). The absence of similar claims does not itsel f make it appear
affirmatively that the district court erred by recognizing Flor ek’s claims. Vannet fails to
meet his burden on appeal.
Because the district court did not err by recognizing Florek’s negligence-per-se
claim, we need not address Vannet’s argument that the district court created a new cause
of action for sexual abuse. Negligence per se is not a new cause of action.
Affirmed.