Bott v. Osburn
257 P.3d 1022
Utah Ct. App.2011Background
- Osburn appeals a civil stalking injunction entered in Wife Bott's favor under Utah Code § 77-3a-101.
- The injunction relied on alleged stalking conduct defined by the criminal statute § 76-5-106.5 (2008).
- Facts include Wife learning of an affair and two threats by Girlfriend to shoot Wife involving a gun.
- Wife petitioned for relief on January 19, 2010; temporary injunction granted, then civil injunction after hearing.
- Trial court found Girlfriend made two threats directed at Wife that a reasonable person would fear or suffer distress.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the 2008 stalking statute require actual fear | Girlfriend contends actual fear/distress must be shown | Bott argues statute does not require actual fear, only reasonable fear/distress | No actual fear required; threats suffice to support the injunction |
| Was the course of conduct and totality of circumstances properly considered | Girlfriend asserts no proper totality analysis | Bott maintains proper cumulative analysis was applied | Court properly considered cumulative circumstances in evaluating conduct |
| Was the definition of 'reasonable person' correctly applied | Girlfriend argues misapplication of 'reasonable person' in Wife's circumstances | Bott contends correct standard applied | Reasonable-person-in-Wife's-circumstances standard applied; threats held sufficient |
| Did the court properly address 'emotional distress' under the statute | Girlfriend argues Lopez limits emotional-distress evidence | Bott argues threats satisfy emotional-distress and outrageousness requirements | Threats satisfy required emotional-distress standards; Lopez discussion acknowledged |
Key Cases Cited
- Towner v. Ridgway, 182 P.3d 347 (2008 UT 23) (three elements for a civil stalking injunction under prior statute)
- Salt Lake City v. Lopez, 935 P.2d 1259 (Utah Ct.App. 1997) (emotional distress defined via tort-standard outrageousness)
- Martin v. Colonna, 217 P.3d 1147 (2009 UT App 227) (protective-order analysis ignores inadvertent initiation of threats)
- Ellison v. Stam, 136 P.3d 1242 (2006 UT App 150) (totality-of-circumstances analysis for conduct in protective orders)
- Sindt v. Retirement Bd., 157 P.3d 797 (2007 UT 16) (legislative amendments reflect change in evidentiary requirements)