Jane S. Doe, Appellant,

This opinion will be unpublished and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
A20-0077

Jane S. Doe,
Appellant,

vs.

Kelly Kirby,
Defendant,

Winona State University,
Respondent,

HTC Counselling, LLC,
Defendant.

Filed August 24, 2020
Affirmed
Worke, Judge

Winona County District Court
File No. 85-CV-19-1026

Brian J. Kluk, Cheryl Hood Langel, Daniel J. Singel, Jessica A. Zeletes, McCollum
Crowley P.A., Minneapolis, Minnesota (for appellant)

Richard J. Thomas, Chad J. Hintz, Burke & Thomas, PLLP, Arden Hills, Minnesota (for
respondent)

Considered and decided by Worke, Pr esiding Judge; Connolly, Judge; and Smith,
Tracy M., Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges the district court’s grant of judgment on the pleadings in favor
of respondent, arguing that the district court: (1) erroneously applied a summary-judgment
standard; and (2) drew impermissible inferences in favor of respondent. We affirm.
FACTS
In May 2019, appellant Jane Doe filed a complaint against defendants Kelly Kirby
and HTC Counselling LLC (HTC) and respondent Winona State University (WSU). Doe’s
seventh claim for relief, the only claim at issue on appeal, alleged that WSU was
vicariously liable for Kirby’s sexual abuse, negligence, and negligence per se under the
doctrine of respondeat superior.
WSU moved for judgment on the pleadings, or alternatively, summary judgment.
Doe then moved to amend the first amended co mplaint, and the district court granted her
motion.
Doe made the following allegations in he r second amended complaint. In August
2008, Doe enrolled as a student at WSU. Doe suffered from severe depression and
subsequently sought mental-health care through WSU. In March 2011, Doe was referred
to Kirby, who was a counselor at WSU’s counseling center, for mental-health counseling.
While Doe was Kirby’s client at WSU, Kirby began “grooming” Doe. 1 Kirby gave Doe
gifts and engaged in inappropriate conversations with her on WSU’s campus.

1 Doe did not define the term “grooming” in her second amended complaint.

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In December 2011, Kirby moved Doe’s ca re to HTC while Kirby remained an
employee of WSU. Kirby met with Doe for extended periods of time at Kirby’s WSU
counseling office while Doe was a patient at HTC and used WSU’s email account, office
phone line, and office space to facilitate inappropriate conversations with Doe.
During the spring of 2012 and while Doe was still Kirby’s patient, Kirby informed
Doe that she had romantic feelings for her and “engaged in social activities and
unprofessional conversations with [Doe].” Doe graduated from WSU in May 2012, and
her last therapy session with Kirby was later that month. From July 2012 until November
2016, Kirby engaged in sexual contact with Doe.
Doe alleged that Kirby committed third- and fourth-degree criminal sexual conduct
by engaging in sexual contact with and the penetration of an emotionally-dependent former
patient, claiming that Kirby was civilly liable for sexual abuse under Minn. Stat. § 541.073,
subd. 1 (2018). The district court grante d WSU’s motion for judgment on the pleadings
on the basis that Doe’s respondeat-superior claim failed because the second amended
complaint alleged that the sexual abuse occurred outside of the course and scope of Kirby’s
employment at WSU. This appeal followed.
D E C I S I O N
Doe argues that the district court erred by granting WSU’s motion for judgment on
the pleadings because she suffi ciently pleaded a respondeat-superior claim against WSU.
Doe contends that the district court erred by applying a summary-judgment standard and
making impermissible inferences in favor of WSU.

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We review a district court’s grant of a motion for judgment on the pleadings “to
determine whether the complaint sets forth a legally sufficient claim for relief.” Sec. Bank
& Trust v. Larkin, Hoffman, Daly & Lindgren, Ltd. , 916 N.W.2d 491, 495 (Minn. 2018)
(quotations omitted). This court “consider[s ] only the facts alleged in the complaint,
accepting those facts as true a nd drawing all reasonable in ferences in favor of the
nonmoving party.” Id. (quotations omitted).
“To withstand a motion for judgment on the pleadings, [a plaintiff] must state facts
that, if proven, would support a colo rable claim and entitle it to relief.” Midwest Pipe
Insulation, Inc. v. MD Mech., Inc., 771 N.W.2d 28, 31 (Minn. 2009). This court reviews
de novo whether a complaint sets forth a legally sufficient claim for relief. Walsh v. U.S.
Bank, N.A., 851 N.W.2d 598, 606 (Minn. 2014).
“Under the doctrine of respondeat superio r, an employer is vicariously liable for the
torts of an employee committed within th e course and scope of employment.” Frieler v.
Carlson Mktg. Grp., 751 N.W.2d 558, 583 (Minn. 2008) (quotation omitted). The supreme
court has held that “an employer is liable fo r an assault by his employee when the source
of the attack is related to the duties of th e employee and the assau lt occurs within work-
related limits of time and place.” Lange v. Nat’l Biscuit Co., 211 N.W.2d 783, 786 (Minn.
1973).
Doe first argues that the district cour t erroneously applied a summary-judgment
standard. Doe contends that the district c ourt’s order did not set forth a legal standard,
referenced an allegation as being undisputed , and used language about an absence of
evidence. However, these arguments mischar acterize the district court’s order. WSU’s

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motion was for judgment on the pleadings, or alternatively, summa ry judgment. The
district court granted WSU’s motion in its entirety in an order captioned: “Order Granting
Defendant Winona State University’s Motion for Judgment on the Pleadings.” The district
court’s order referenced Minn. R. Civ. P. 12.03 and made mu ltiple references to viewing
the allegations in the second amended compla int as true. And while it may have been
improvident for the district court to refer to “undisputed facts, as plead[ed] in the [s]econd
[a]mended [c]omplaint” and an “absence of evidence” in its order, viewing the order in its
entirety indicates that the dist rict court properly examined whether the second amended
complaint sufficiently pleaded a claim for relief.
Doe next argues that the district court erred by making two impermissible inferences
in WSU’s favor. Specifically, Doe argues that the district court erred by inferring that:
(1) her treatment at WSU terminated when her treatment moved to HTC; and (2) “sexual
abuse” required “sexual contact” or “sexual assault.”
The district court did not make imperm issible inferences in WSU’s favor. Doe
alleged that Kirby’s sexual abuse involved sexual contact and penetration that occurred off
of WSU’s campus and after her treatment w ith Kirby at WSU and HTC terminated.
Whether Doe’s treatment at WSU terminated when her treatment moved to HTC is
therefore irrelevant, because the alleged sexu al abuse did not occur within the scope of
Kirby’s employment as a therapist. See Lange, 211 N.W.2d at 786 (listing elements of
respondeat-superior claim).
While Doe relies heavily on her allegati ons that “grooming” occurred while she
received mental-health counseling from Kirby at WSU, as pleaded, this conduct does not

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fall within an action for damages due to sexu al abuse pursuant to Minn. Stat. § 541.073,
subd. 1. In addition, Doe did not allege that Kirby’s grooming behavior constituted another
colorable claim for relief, and thus Kirby’s alleged actionable conduct falls outside of the
limits of time and place of her employment with WSU.
Accepting the facts alleged in Doe’s second amended complaint as true and drawing
reasonable inferences in her favor, we concl ude that Doe did not set forth an actionable
respondeat-superior claim premised on sexual abuse that occurred within Kirby’s work-
related limits of time and place. Therefore, the district court did not err by granting WSU’s
motion for judgment on the pleadings.
Affirmed.