Kevin Kopka, et al., individually and as parents and natural guardians of minor children B. Kopka and I. Kopka, Appellants,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0109

Kevin Kopka, et al., individually and as parents and
natural guardians of minor children B. Kopka and I. Kopka,
Appellants,

vs.

Sand Hospitality, LLC,
Respondent.

Filed November 1, 2021
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge

Stearns County District Court
File No. 73-CV-19-6839

Michael A. Bryant, Bradshaw & Bryant, PLLC, Waite Park, Minnesota (for appellants)

Emily B. Uhl, The Cincinnati Insurance Comp any, Coon Rapids, Minnesota (for
respondent)

Considered and decided by Ross, Presiding Judge; Segal, Chief Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Appellant-parents challenge the district court’s grant of summary judgment in favor
of respondent -hotel-owner, dismissing appellants’ personal-injury suit . Appellants
brought suit on behalf of their two young daughters and themselves based on their claim
that respondent negligently allowed the daughters to come into contact with a used condom
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in their hotel room that did not belong to appellants. Appellants asserted negligence claims
both for physical injury to the daughters and for the negligent infliction of emotional
distress to the daughters and themselves. The district court granted summary judgment to
respondent on the claim for physical injury to the daughters , concluding that the alleged
negligence was not the proximate cause of the injuries. The district court also granted
summary judgment on the claims for negligent infliction of emotional distress because the
daughters were unaware of any danger of contracting disease from the used condom and
neither parent was in the zone of danger and their fear was for the safety of their daughters,
not themselves . We reverse the grant of summary judgment on the claim for physical
injury to the daughters but affirm summary judgment on the claims for negligent infliction
of emotional distress.
FACTS
Appellants Julee and Kevin Kopka, 1 their two young daughters (d aughter 1 and
daughter 2), an older daughter, two cats, and a dog stayed for several days in a Holiday Inn
and Suites owned by respondent Sand Hospitality, LLC, following a fire in the family’s
home. The Kopkas had two hotel rooms.
On the date of the incident, Julee requested that the hotel provide more linens and
towels to be brought to the daugh ters’ room. When a hotel staff member arrived with the
towels and linens, Julee took daughters 1 and 2 out of the room, and left the staff member
alone in the room for ten to fifteen minutes. When Julee and the girls returned to the room

1 To avoid confusion, we will refer to the parents by their first names.
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after the staff member left, Julee went into the bedroom to check on the linens he had
brought. When Julee came back into the kitchen area of the room, she saw daughters 1 and
2 holding a used condom. Julee told the girls to stop playing with the condom and called
down to the front desk of the hotel to have the condom removed and the room cleaned .
Julee told hotel management that the condom had not been in the room prior to the arrival
of the hotel staff member.
Julee asked the girls whether they had put the condom in their mouth s and the
children did not answer directly, but when Kevin asked both daughters the same question
later, daughter 2 said, “No,” s he had not put it in her mouth. Daughter 1, who was
nonverbal, did not respond . The following day , the hotel manager told Julee that the
daughters should be tested for sexually transmitted diseases. The Kopkas’ pediatrician said
that it’s rare to transmit human immunodeficiency virus (HIV) from a used condom, but it
was possible, so they should test the daughters for HIV at two months and six months out
from the possible exposure.
The two young daughters each have preexisting medical issues. Daughter 1, the
older of the two girls, has been diagnosed with autism and was nonverbal at the time of the
incident. Daughter 2, the youngest child , has Von Willebrand disease, which causes
excessive bleeding, bruising , and poor clotting , and Ehlers -Danlos, a connective -tissue
disorder.
The Kopkas took daughters 1 and 2 to the family’s usual clinic to have their blood
drawn to test for HIV and hepatitis B. It was very difficult to draw either daughter’s blood,
and the blood draws cause d distress to both girls . Whenever the daughters get shots or
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have blood tests they need to be held down by their mother and nurses to keep them still,
and the daughters both scream during the process. Daughter 2 was particularly upset while
medical staff tried to draw her blood because it was hard to find a vein that they could draw
blood from without the vein “blowing”—at one point they tried to use a vein in daughter 2’s
head to draw blood but failed. Daughter 2 bled a lot during this process.
Julee was in the doctor’s office with both girls when attempts were made to draw
their blood while Kevin waited in the sitting room, but Kevin was still able to hear both
daughters screaming.
The Kopkas had to return multiple times to the doctor’s office because the first
attempts to draw a blood sample failed. The doctor’s office staff were able to draw daughter
2’s blood on the second visit, but the blood draw inflamed her Von Willebrand disease. It
took two or three visits to successfully draw daughter 1’s blood. Because of unrelated
medical conditions, the children also had blood drawn at other times over the same six -
month period.
The clinic had a person from the hospital who was very good at drawing blood from
difficult veins come to draw daughter 2’s blood and daughter 2’s blood sample returned a
presumptive positive or “reactive” result for HIV. The clinic sent that sample to the Centers
for Disease Control and Prevention (CDC) for conclusive results. The family waited about
three days to hear the results from the CDC, and ultimately learned that daughter 2’s results
were negative for HIV.
Neither daughter understands that they were playing with a condom at the hotel, or
any of the potential health risks. In fact, to the extent either child remembers the incident,
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it is a memory about playing with a glove. At no point did the Kopkas explain to the
children what had happened, or their fears that the children would contract HIV.
The two daughters h ave exhibited symptoms of emotional distress since the blood
tests. Daughter 1 now has a fear of doctors and needles, which is being treated by her
regular psychiatric provider. Daughter 2 has anxiety, refuses to stay away from home for
more than a few d ays, and also refuses to sleep alone. Daughter 2 is being treated for
depression and anxiety.2
The Kopkas sued Sand Hospitality claiming that their negligence in allegedly
allowing a used condom to be brought into the daughters’ room caused the daught ers
physical injury and emotional distress from the ordeal of the blood draws. The y also
alleged that, as parents, they suffered emotional distress resulting from the ir fear that the
girls may have been exposed to HIV and other pathogens and from witnessing the trauma
experienced by the girls from the blood draws.
After the close of discovery, Sand Hospitality moved for summary judgment, which
the district court granted. The district court determined that the claim for injuries to the
girls from the blood draws failed because there was a break in causation between the
claimed breach of duty and the girls’ alleged physical injuries. The court noted that, when
the blood draws were conducted with the assistance “of a s pecialist, the blood draws
occurred without incident ” and that the Kopkas conceded “that the children’s emotional

2 Since the stay in the hotel, daughter 2 has undergone other medical treatment and
procedures unrelated to this case, including having her tonsils r emoved to treat recurring
intermittent fevers and treatment for two concussions that requires her to attend
occupational and physical therapy.
6
distress, e.g., new fear of needles and general increased anxiety, resulted from the blood
draws and not from the hotel incident itself.” The district court concluded that the injuries
were thus too attenuated to satisfy the proximate-cause requirement because “the children’s
injuries were caused by the method in which the doctor chose to draw the children’s blood
and not as a result of the Defendant’s negligence.”
The district court also granted summary judgment against the Kopkas on their
claims of negligent infliction of emotional distress that they had asserted on behalf of their
daughters and themselves . The court noted that, while the two children were within the
zone of danger posed by the used condom, the children “ believed they were playing with
a glove and had no knowledge of the infectious threat it posed.” The court thus granted
summary judgment on the daughters’ claims of neglig ent infliction of emotional distress
because the negligent act —the presence of the used condom in the hotel room —was not
the cause of their emotional distress.
The district court granted summary judgment on the parents’ negligent-infliction
claim because neither parent could demonstrate that they were in the “zone of danger”
posed by the condom and because they alleged that their emotional distress was caused by
fear for their daughter’s safety, not their own.
The Kopkas now appeal.
DECISION
The Kopkas raise two arguments on this appeal. First, they challenge the district
court’s conclusion that there was a break in the chain of causation between the breach of
duty and the failed blood draws. And, second, they ask this court to abandon the “zone of
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danger” test for the tort of negligent infliction of emotional distress . We address each
argument in turn below.
Standard of Review
On appeal from a grant of summary judgment, we apply a de novo standard of
review “to determine whether there are genuine iss ues of material fact and whether the
district court erred in its application of the law.” Montemayor v. Sebright Prods., Inc., 898
N.W.2d 623, 628 (Minn. 2017) (quotation omitted). Summary judgment is appropriate if
the party who bears the burden of proof fails to bring forward evidence sufficient to create
a genuine issue of material fact in support of one or more essential elements of his or her
claim. Eng’g & Constr. Innovations, Inc. v. L.H. Bolduc Co., 825 N.W.2d 695, 704 (Minn.
2013). And s ummary judgment is “inappropriate when reasonable persons might draw
different conclusions from the evidence presented.” Montemayor, 898 N.W.2d at 628
(quotation omitted). “We view the evidence in the light most favorable to the party against
whom summary judgment was granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644
N.W.2d 72, 76-77 (Minn. 2002).
I. There is a genuine issue of material fact on the question of causation as to the
daughters’ claims for damages arising out of the blood draws.

The first claim asserted by the Kopkas is that the hotel’s negligence in allowing their
two younger daughters to be exposed to the used condom caused physical injury to the girls
because the girls had to endure needle sticks and blood draws as a result of the exposure.
To establish a negligence claim, a plaintiff must prove four elements: “(1) the existence of
a duty of care; (2) a breach of that duty; (3) an injury; and (4) the breach of the duty being
8
the proximate cause of the injury. ” Engler v. Ill. Farmers Ins. Co., 706 N.W.2d 764, 767
(Minn. 2005).
The district court concluded that the Kopkas had put forward sufficient evidence to
create a genuine issue of material fact and survive summary judgment with regard to the
first three elements of a negli gence claim—that the hotel owed a duty, that the duty was
breached, and that the blood draws could constitute a physical injury. The district court
concluded, however, that there was a break in causation between the negligent act —
allowing exposure to a used condom in the hotel room —and the blood tests administered
to the girls. The district court reasoned that the girls’ injuries were from the failed attempts
to draw blood, including the needle stick that inflamed daughter 2’s Von Willebrand
disease. The district court noted that “[w]hen the doctors sought the expertise of a
specialist, the blood draws occurred without incident.” The district court thus determined
that the doctors’ actions were an intervening cause that broke the chain of causation
between the hotel’s breach of duty and the injury. The Kopkas claim that the district court
erred in its conclusion that the doctors’ failed efforts to draw blood broke the chain of
causation, and we agree.
Under established law, intervening negligence by a medical provider does not
necessarily relieve the original tortfeasor of liability if the medical treatment was made
necessary by the negligent act of the tortfeasor. See Couillard v. Charles T. Miller Hosp.,
Inc., 92 N.W.2d 96, 99 (Minn. 1958); Fields v. Mankato Elec. Traction Co., 133 N.W. 577,
578 (Minn. 1911) (stating “risks incident to submitting to treatments and operations”
following from a negligent action were incurred because of the fault of the wrongdoer and
9
were therefore proximately caused by the wrongdoer, and the wrongdoer was liable). Thus,
even if the doctors were negligent in connection with the blood draws, it is the alleged
negligence of Sa nd Hospitality that caused the girls to get the blood tests. We therefore
reject the district court’s conclusion that the doctors’ choice of technicians to draw blood
was an intervening cause sufficient to relieve Sand Hospitality of potential liability as a
matter of law.
Sand Hospitality also argues that proximate cause does not exist because the Kopkas
never alleged any actual exposure to HIV; they just alleged that they feared the girls had
been so exposed. Sand Hospitality cites the case of K.A.C. v. Benson in support of its
argument. 527 N.W.2d 553 (Minn. 1995) . In K.A.C., a former patient sued her
gynecologist because he was HIV positive and had performed a n invasive exam without
informing her of his HIV status. The physician had HIV-related lesions on his hands at the
time but was wearing gloves and followed all the protocols the medical board had provided
to him. Id. at 556-57. The supreme court held that “[i]n an action for damages based solely
upon plaintiff’s fear of acquiring AIDS , without allegation of actual exposure to HIV, no
legally cognizable claim exists under Minnesota law. ” Id. at 560. In this case, however,
the daughters’ claims are based not on the fear of contracting HIV, but on the physical
injury caused by the blood draws for the testing. K.A.C. is thus distinguishable.
The question then is whether Sand Hospitality “ought . . . to have anticipated [its
negligence] was likely to result in injury to others, though [it] could not have anticipated
the part icular injur y which did happen. ” Lubbers v. Anderson , 539 N.W.2d 398, 401
(Minn. 1995) (quotation omitted) . Here, there is at least a fact question whether Sand
10
Hospitality should have anticipated that their alleged negligent act of allowing exposure to
a used condom would lead to the need for testing. Indeed, Sand Hospitality’s own manager
recommended that the girls should be tested.
Thus, we conclude that there is a genuine issue of material fact on the question of
causation that cannot properly be dispensed with on a motion for summary judgment. As
recently emphasized by the Minnesota Supreme Court, summary judgment is proper only
when “the record reflects a complete lack of proof on proximate cause.” Staub v. Myrtle
Lake Reso rt, LLC , 964 N.W.2d 613, _ __, No. A20-0267, slip op. at 10 (Minn. 2021)
(quotation omitted); see also Bondy v. Allen , 635 N.W.2d 244, 248 (Minn. App. 2001)
(stating i ssues of causation “seldom can be disposed of on a motion for summary
judgment” (quotation omitted)). We thus reverse the summary judgment with regard to
the claim brought on behalf of the daughters for the alleged injuries caused by the blood
draws.3
II. The district court did not err in granting summary judgment against the
Kopkas on their claims for the negligent infliction of emotional distress.

The remaining issue concerns the Kopkas’ challenge to the grant of summary
judgment on their claims for negligent infliction of emotional distress. The Kopkas urge
this court to abandon the “zone of danger” test, arguing it is unfair to tort victims.
To establish a claim for negligent infliction of emotional distress, a plaintiff “must
prove the four elements of a negligence claim, as well as three additional elements specific

3 In reaching this conclusion, however, we decide only that there is a fact question on this
issue and express no opinion on the ultimate merits of the daughters’ claim.
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to [negligent infliction of emotional distress] claims.” Engler, 706 N.W.2d at 767; see also
Stead-Bowers v. Langley , 636 N.W.2d 334, 343 (Minn. App. 2001) , rev. denied (Minn.
Feb. 19, 2002). The additional three elements require that the plaintiff “(1) was within the
zone of danger of physical impact create d by the defendant ’s negligence; (2) reasonab ly
feared for her own safety; and (3) consequently suffered severe emotional distress with
attendant physical manifestations.” Engler, 706 N.W.2d at 767 (quotation omitted).
Turning first to the negligent -infliction claim brought on behalf of the daught ers,
the district court dismissed the claim on the grounds that they suffered no emotional
distress from the physical contact with the condom. The court pointed out that the girls
were unaware of any potential risks. To the extent either recalled the incident, they
remembered only playing with a glove and never fear ed for their own safety from the
contact with the condom. And, as noted by the district court, the Kopkas conceded that the
girls’ emotional distress was caused by the blood draws, not the contact with the condom.
The Kopkas thus failed to bring forward evidence to support two of the three added
elements required to establish a claim for negligent infliction of emotional distress—that
the girls feared for their safety because of the contact with the condom and consequently
experienced severe emotional distress.
The parents’ claim for negligent infliction is also deficient. Julee had no contact
with the condom and thus was never in the “zone of danger” and Kevin was not even in
the hotel during the actual incident. Moreover, the parents never feared for t heir own
safety; their emotional distress arose out of fear for the safety of their daughters. The
district court thus committed no error in dismissing the parents’ negligent-infliction claim.
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Finally, i nsofar as the Kopkas seek a change in the law rela ted to the required
elements for negligent -infliction claims, the law surrounding such claims is well -
established and their request is beyond the authority of this court. Lake George Park,
L.L.C. v. IBM Mid-Am. Emps. Fed. Credit Union, 576 N.W.2d 463, 466 (Minn. App. 1998)
(“This court, as an error correcting court, is without authority to change the law. ”), rev.
denied (Minn. June 17, 1998).
Affirmed in part, reversed in part, and remanded.