David Drake LARSEN, Appellant, v. DAVIS COUNTY SCHOOL DISTRICT, Appellee.
No. 20160099-CA
Court of Appeals of Utah.
Filed November 30, 2017
2017 UT App 221
Sean D. Reyes and Peggy E. Stone, Salt Lake City, Attorneys for Appellee.
Judge Ryan M. Harris authored this Opinion, in which Judges Kate A. Toomey and Jill M. Pohlman concurred.
HARRIS, Judge:
Opinion
¶1 Plaintiff David Drake Larsen alleges that in 2013, when he was sixteen years old, one of his high school teachers (Teacher) initiated a romantic relationship with him, beginning with “flirtatious conversations” and text messages, and eventually culminating in sexual intercourse. In 2015, Larsen sued the Davis County School District (the District), asserting that the District was negligent in its hiring, supervision, and retention of Teacher, and seeking recovery for damages he claims to have sustained as a result of his relationship with Teacher. The district court dismissed Larsen‘s lawsuit, determining that the District was immune from suit pursuant to the Governmental Immunity Act of Utah (the Act). Because we conclude that the Act, under either of two different interpretations and as construed by our supreme court, compels dismissal of Larsen‘s claims, we affirm.
BACKGROUND
¶2 In 2013, Larsen was a student at Davis High School in Kaysville, Utah. Larsen alleges that Teacher “initiated a romantic relationship” with him while she was his teacher. Specifically, Larsen asserts that the relationship began with “flirtatious conversations” in the classroom, as well as text messages, and that Teacher encouraged him to visit her classroom during her preparation period to continue their conversations. According to Larsen, Teacher eventually asked him to meet her privately, both on and off school grounds, and some of these private meetings included “inappropriate sexual contact.” Larsen alleges that the “first sexual intercourse” between him and Teacher “was initiated by [Teacher] luring [Larsen] from school grounds and then driving him to her home, during school hours,” and that “[a]t least three additional sexual encounters occurred during school hours, on or near school grounds.”
¶3 Larsen sued the District, alleging that the District was negligent in its hiring, supervision, and retention of Teacher. Specifically, Larsen asserts that, at the time it hired Teacher, the District knew, or at least should have known, that Teacher “had been previously terminated from former employment due to sexual misconduct.” In addition, Larsen asserts that on at least one occasion, the District “reprimanded Teacher” after learning that she had been involved with “inappropriate contact with students,” but that the District “failed to take sufficient steps to either terminate her or supervise her.”
¶4 As part of his negligence claim, Larsen specifically asserts that the District “failed to adequately train, retrain, and/or supervise its employees“; “negligently screened and hired an employee whom the [D]istrict knew or should have known was unfit to be a teacher and posed a risk to students“; “failed to supervise a teacher whom the [D]istrict knew or should have known posed a risk to students“; “negligently retained a teacher who was engaging in inappropriate behavior with students“; and “failed in its duty to supervise and direct its employees in a manner so as to protect its students from harm.”
¶5 In addition to his claim for negligence, Larsen also brought claims for negligent infliction of emotional distress, breach of common law duty to protect from harm, vicarious liability for sexual misconduct, and vicarious liability for seduction.
¶6 Before answering, the District moved to dismiss Larsen‘s entire complaint for failure to state a claim pursuant to
¶7 After full briefing and oral argument, the district court agreed with the District and dismissed Larsen‘s complaint. The district court determined that Teacher‘s conduct toward Larsen was an “assault” or “battery,” and that this assault or battery was at least a proximate cause of Larsen‘s injuries, as pleaded in his complaint. The district court determined that dismissal was appropriate on immunity grounds as long as the assault and battery was “a cause” of Larsen‘s injuries, even if it was not the “sole cause.”
¶8 Larsen appeals the district court‘s dismissal of his complaint.
ISSUE AND STANDARD OF REVIEW
¶9 The sole issue presented by this appeal is whether the district court properly dismissed Larsen‘s complaint pursuant to
ANALYSIS
¶10 The Act, as formulated in 2013,1 stated as a general proposition that “each governmental entity and each employee of a governmental entity are immune from suit for any injury that results from the exercise of a governmental function.”
¶11 In this case, the first question is not at issue; all parties agree that the District was engaged in a governmental function when it operated Davis High School and hired and supervised Teacher. Instead, this case hinges on steps two and three: whether immunity has been waived and, if so, whether there is an exception to that waiver.
¶12 Larsen directs us to the statutory waiver of governmental immunity for acts of negligence. That waiver is found in subsection (4) of section 301 of the Act, and provides as follows:
Immunity from suit . . . is waived as to any injury proximately caused by a negligent act or omission of an employee committed within the scope of employment.
¶13 Our task in this case is to interpret the subsection (4) waiver of immunity for negligence in tandem with the subsection (5) exception to that waiver. We perceive two plausible interpretations of the language of these provisions, and we examine each one in turn.
A
¶14 The first potential interpretation of the Act is straightforward. Under this interpretation, the waiver of immunity for negligent acts, clearly articulated in subsection (4), is completely nullified by subsection (5) if “the injury” resulting from the negligence is proximately caused by any of the items listed in subsection (5), including “assault” or “battery.” See
¶15 Under this approach, then, if the District can demonstrate that Larsen‘s alleged injury was proximately caused by “assault” or “battery,” then the District is immune from Larsen‘s suit.
B
¶16 Under the second option, the language of the negligence waiver and the subsection (5) exception is interpreted in a way that allows for the possibility that a plaintiff‘s injury can be the result of multiple separate causes (for instance, both a governmental entity‘s negligence and a third party‘s assault or battery), and that principles of comparative negligence and apportionment of fault can be applied to separate them.
¶17 Under this construct, the waiver of immunity in subsection (4) applies to a governmental entity‘s negligent conduct more broadly. Immunity for the negligent conduct is entirely waived, and then later, when a subsection (5) condition arises, a revocation of that waiver occurs, which depending upon the nature of the injury may be a complete revocation or only a partial revocation. This interpretation focuses on the fact that the Act uses the term “injury” rather than “claim” or “lawsuit” or “cause of action,” and construes “injury” as being non-monolithic. Conceptually, part of an injury could be caused by negligence, and part of an injury could be caused by a battery. Interpreted in this manner, the Act leaves open the possibility that a factfinder could differentiate between that portion of a plaintiff‘s injury that is proximately caused by negligence—for which a governmental entity is not immune under subsection (4)—and that portion of a plaintiff‘s injury that is proximately caused by an immunity-invoking condition, such as a battery—for which a governmental entity retains immunity under subsection (5).
¶18 It is, of course, common for plaintiffs to allege injury that stems from more than one cause; indeed, Utah‘s model jury instructions regarding causation contain plain guidance on the issue. See Model Utah Jury Instructions 2d CV209 (2016), https://www.utcourts.gov/resources/muji/ [https://perma.
¶19 Although persons immune from suit may be included in the factfinder‘s apportionment calculus, “[a]ny fault allocated to a person immune from suit is considered only to accurately determine the fault of the person seeking recovery and a defendant and may not subject the person immune from suit to any liability.”
¶20 In addition, our supreme court has recently provided the “solution to the riddle of Field [v. Boyer],” see Jedrziewski v. Smith, 2005 UT 85, ¶¶ 17, 23, 128 P.3d 1146 (citing Field v. Boyer, 952 P.2d 1078 (Utah 1998)), and has definitively determined that under the Liability Reform Act courts can—and should—apportion fault between and among negligent tortfeasors and intentional tortfeasors. See Graves v. North E. Services, Inc., 2015 UT 28, ¶¶ 44-46, 345 P.3d 619. Indeed, although none of the parties in Graves were governmental entities, and therefore immunity was not an issue, the facts of that case are not dissimilar to the facts presented here. In Graves, the plaintiffs brought suit against a private provider of mental health services for negligent hiring, training, and supervision of employees after one of the provider‘s employees sexually assaulted a minor child. Id. ¶ 1. Our supreme court held that Utah‘s Liability Reform Act, including specifically the provisions regarding apportionment of fault, requires a factfinder to allocate fault as between the allegedly negligent health services provider and the employee who committed an intentional sexual assault. Id. ¶ 46.
¶21 This second interpretation of the Act was at one point espoused by two current members of our supreme court. See Thayer, 2012 UT 31, ¶¶ 63-65, 285 P.3d 1142 (Lee, J., dissenting). In Thayer, a high school student died during production of a school musical when an actual firearm that school officials had approved for use in the production discharged near his head. His family sued the school district for negligence, and the district asserted that it was immune from suit under subsection (5) of the Act, under which immunity is not waived for “the issuance . . . [of a] permit, license, certificate, approval, order, or similar authorization.”
¶22 Since Thayer, our supreme court has not directly revisited the issue, and therefore a majority of the court has never endorsed the dissent‘s interpretation of the Act. In Barneck, however, even without confronting the issue directly, the court made certain statements—unanimously—that, in our view, foreclose any hope Larsen may have had that apportionment of fault might be available here.
¶23 Before Barneck, a governmental entity claiming immunity based on the “assault” or “battery” exception had to show only that the assault was a “but-for” cause of the plaintiff‘s harm. See, e.g., Taylor ex rel. Taylor v. Ogden City School Dist., 927 P.2d 159, 163 (Utah 1996) (holding that the governmental entity would be immune if there was even a “[b]ut for” causal relationship between the assault and the injury). In Barneck, the court ratcheted up the causation requirement, determining that “an immunity invoking condition,” such as an assault or battery, “must be a proximate cause of the plaintiff‘s injuries in order to sustain the reinstatement of immunity.” See Barneck, 2015 UT 50, ¶ 38, 353 P.3d 140. However, the court left in place the previous case law‘s admonition that “the assault need not be the sole cause of the injury to except the governmental entity from liability for the injury.” Taylor, 927 P.2d at 163. Indeed, in Barneck, the court several times stated that, so long as the immunity-invoking condition was “a proximate cause” of the injury, the governmental entity would be entirely immune from suit. Barneck, 2015 UT 50, ¶¶ 38, 46, 47, 353 P.3d 140 (emphasis added). Significantly here, despite the fact that Barneck was decided just three years after Thayer and was authored by the same justice who penned the dissent in Thayer, at no point in the court‘s analysis in Barneck did the court discuss apportionment of fault.
¶24 Larsen cites hopefully to Barneck, correctly pointing out that the law now requires a stronger causal connection between the assault and the injury than it did before. Larsen‘s faith in Barneck is ultimately misplaced, however, due to Barneck‘s reaffirmance of Taylor‘s “sole cause” principle. After Barneck, the governmental entity must certainly show a stronger causal link between the immunity-invoking condition and the injury. But regardless of the strength of the causal link, the governmental entity has never been required to show that the immunity-invoking condition is the “sole cause” of the plaintiff‘s injuries, and Barneck did not change that. Even after Barneck, as long as the governmental entity can demonstrate that an immunity-invoking condition is “a proximate cause” of the plaintiff‘s injuries, it is immune from suit, regardless of whether there exist other non-immune causes of the plaintiff‘s injuries. In our view, two aspects of the Barneck decision make this reading inescapable.
¶25 First, the court in Barneck made clear that its previous cases, including Taylor, “would have come out the same way under the proximate cause standard.” Id. ¶ 45. For example, in Taylor, a student sued a school district for injuries incurred when another student pushed the first student through “an allegedly unsafe” window at a middle school. Taylor, 927 P.2d at 160. The first student suffered significant injuries, due at least in part to the glass from the window cutting his hand, and claimed that the school district had negligently failed to “install safety glass” in the school window. Id. The injured student argued that his injuries had “a greater link to the dangerous window in the restroom than” to the other student‘s assault and, therefore, the school should not have retained immunity under the Act. Id. at 163. In rejecting that argument, the court explained that “the assault need not be the sole cause of the injury to except the governmental entity from liability,” and that the language of the Act demanded “only that there be some causal relationship between the injury and the risk.” Id. (citation and internal quotation marks omitted). Because there was a causal relationship between the injury and the assault, the school retained immunity. Id. In other words, “but for the assault,” the injured student‘s “injuries would not have occurred.” Id. It did not matter to the court‘s analysis that the school district‘s negligence
¶26 Second, although the court in Barneck did not expressly discuss whether apportionment of fault would be appropriate in a case like this one, where plaintiff‘s injuries are allegedly caused by both negligent (non-immune) conduct as well as by immune conduct, the court did state in a footnote that when “a particular injury is a proximate result of both an act for which the government has waived immunity (such as negligence) and an act for which the statute reinstates it (such as a natural condition),” the government retains immunity. Id. ¶ 47 n.19. In our view, allowing apportionment of fault in this case is a result that cannot plausibly be squared with the language of Barneck‘s footnote 19.4
¶27 Accordingly, although it is possible to interpret the language of the negligence waiver and the subsection (5) exception as allowing for apportionment of fault between the governmental entity‘s negligence and the immunity-invoking condition of the exception, and although two members of our supreme court had at one point appeared to espouse that interpretation, this second interpretation of the Act has never been adopted by a majority of our supreme court, and appears to have been at least implicitly rejected by the court‘s unanimous opinion in Barneck. After Barneck, apportionment of fault is not available, and we are therefore left with essentially the same question posed by the first interpretation: whether an immunity-invoking condition (e.g., assault or battery) is at least “a proximate cause” of the claimed injury. Under either interpretation, then, if that question must be answered in the affirmative, the District is immune from suit.
C
¶28 Next, we must proceed to examine the question to which both possible interpretations of the Act lead us: whether Teacher‘s “assault” or “battery” was “a proximate cause” of Larsen‘s claimed injury. After examination, we conclude that, under any principled reading of Larsen‘s complaint, Teacher‘s physical contact with Larsen was indeed a proximate cause of Larsen‘s injuries.
¶29 In his complaint, Larsen alleges that the District negligently hired, supervised, and retained Teacher. In addition, Larsen alleges that Teacher, while acting within the course and scope of her employment with the District, “initiated a romantic relationship” with Larsen that included, eventually, “inappropriate sexual contact” and “sexual intercourse.” Larsen states specific claims—his fourth and fifth causes of action—against the
D
¶30 In an effort to avoid the consequences of the Act, Larsen makes two arguments. First, he argues that Teacher‘s actions do not constitute “assault” or “battery,” as he contends those terms should be defined by civil tort law.5 Second, he argues that he has alleged certain harm that is completely independent from the harm he sustained as a result of his physical contact with Teacher. We address each of these arguments in turn.
1
¶31 Larsen first argues that Teacher‘s conduct cannot constitute “battery” be-
¶32 A person commits the civil tort of battery if: “(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (b) a harmful contact with the person of the other directly or indirectly results.” Wagner v. State, 2005 UT 54, ¶ 16, 122 P.3d 599 (quoting Restatement (Second) of Torts § 13 (Am. Law Inst. 1965)). If the contact is “deliberate,” and is “harmful or offensive at law,” then a battery has been committed. Id. ¶ 19. Harmful or offensive contact consists of contact “to which the recipient of the contact has not consented either directly or by implication,” or to which “no reasonable person would consent.” Id. ¶ 51.
¶33 Larsen argues that Teacher did not commit a battery upon him in this case, because the facts, as set forth in his complaint, do not allege that Teacher‘s contact was unwanted; indeed, Larsen goes so far as to state in his brief that “Larsen craved and requested ongoing interaction” with Teacher, and that “there was no unwanted contact between Larsen and [Teacher].”6 Larsen‘s argument fails, however, because whether Larsen actually consented, as a factual matter, is not the relevant question. Instead, even the civil definition of battery asks whether the contact was “harmful or offensive at law.” Id. ¶ 19 (emphasis added). And our legislature, through the passage of statutes making certain actions criminal, has provided a clear answer to that question.
¶34 Under our law, there are certain types of physical contact that are harmful and offensive as a matter of law, and to which no person can legally consent. Specifically germane here, our legislature has determined that no “minor” can legally consent to sexual contact with a person who is “10 or more years older than the minor at the time of the sexual conduct.”
¶35 Indeed, although consent is usually a valid defense in civil intentional tort cases (such as battery cases), see e.g., Graves, 2015 UT 28, ¶ 79 n.25, 345 P.3d 619 (stating that “in the context of intentional torts, a defendant may raise” the “affirmative defense” of “consent“); Elkington, 618 P.2d at 40 (stating that “generally consent is a defense to a willful tort“), consent is not an available defense if the plaintiff is a minor who cannot legally consent under the criminal law, see Restatement (Second) of Torts § 892C (Am. Law Inst. 1979) (stating that “[i]f conduct is made criminal in order to protect a certain class of persons irrespective of their consent,
¶36 In Elkington, the defendant was sued civilly for damages sustained by his adopted daughter, who alleged that the defendant had sexually abused her for several years, from “the time she was nine years old until she left home at age sixteen.” Id. at 38. The case proceeded to a jury trial, and the defendant asked the trial court to give a jury instruction on consent, namely, that consent was a defense to the plaintiff‘s intentional tort claims. The trial court refused to give that instruction. To the contrary, the court instructed the jury that “consent by the plaintiff to the conduct of the defendant . . . is no defense.” Id. at 39. The jury returned a verdict for the plaintiff, and the defendant appealed. Our supreme court affirmed, and noted the general rule that “consent is a defense to a willful tort,” but held that this principle had “[no] application to the instant situation” because “the plaintiff was a minor and incapable of giving consent to acts of this nature,” and because “the defendant is precluded from taking advantage of any consent he seduced or coerced her into giving to engage in such activities.” Id. at 40. The court concluded its analysis by stating that the opposite position “would be so contrary to commonly accepted standards of decency and morality that any consensual agreement to engage in such conduct would be rejected by the law as against public policy and void.” Id.
¶37 In sum, the civil definition of “battery” incorporates principles of consent from the criminal law. Accordingly, we conclude that Teacher‘s sexual contact with Larsen meets the definition of “battery,” because under either civil or criminal law, Larsen was legally incapable of consenting to the contact.
2
¶38 Second, Larsen asserts that the harm he sustained as a result of his relationship with Teacher can be separated into two distinct categories: damage sustained as a result of physical contact with Teacher, and damage sustained as a result of non-physical interactions (e.g., discussions, text messages) with Teacher. Larsen argues that, even if the District is immune from suit pursuant to the “assault and battery” exception for the first category of damages, he may still sue the District for the second category of damages. We are not persuaded that Larsen‘s damages can meaningfully be separated in this way.
¶39 As an initial matter, Larsen made no effort to plead separate categories of damages in his complaint. There, Larsen pleaded just one set of damages, namely, “economic and non-economic damages . . ., including but not limited to medical expenses” as well as “severe emotional and mental distress, and pain and suffering.” As pleaded, Larsen alleged that these damages were caused by the District‘s negligence in hiring and supervising Teacher, as well as by Teacher‘s “sexual misconduct” and “seduction.” A party is bound by the terms of his own pleading, see Sutton v. Otis Elevator Co., 68 Utah 85, 249 P. 437, 446 (1926) (explaining that “a party . . . is bound by his pleadings, especially the plaintiff in pleading the basis of his cause of action“), and Larsen‘s failure to plead separate categories of damages is fatal to his effort to separate them now.
¶40 Moreover, even if Larsen had attempted to properly plead two categories of damages in this case, that effort would not have availed him. There are limits to a party‘s ability to creatively plead around the restrictions imposed by the Act. See Taylor, 927 P.2d at 164 (citing cases, and stating that “[w]e concluded that such allegations were merely ‘attempts to evade the statutory categories by recharacterizing the supposed cause of the injury’ and were summarily rejected” (citations omitted)). In this instance, Larsen‘s effort to creatively categorize his damages as falling into separate categories is foreclosed by Barneck. As discussed above, we read Barneck to compel reinstatement of immunity when a governmental entity‘s immune conduct is “a proximate cause” of a plaintiff‘s injuries. Barneck, 2015 UT 50, ¶ 44, 353 P.3d 140 (emphasis added). Larsen cannot escape this conclusion by attempting to separate his alleged harm into two sepa-
CONCLUSION
¶41 It might seem counterintuitive that our law provides no civil remedy against a school district that is alleged to have negligently hired and retained a teacher who has illegal sexual contact with her minor students. But this conclusion is, in our view, compelled by the Act and by Utah Supreme Court precedent.
¶42 Decades ago, after reluctantly dismissing a somewhat similar case, our supreme court invited legislative action by noting its “sympath[y]” toward citizens in Larsen‘s position, and by declaring that it is “unfortunate that any parent who is required by state law to send his or her child to school lacks a civil remedy against negligent school personnel who fail to assure the child‘s safety at school.” Ledfors v. Emery County School Dist., 849 P.2d 1162, 1167 (Utah 1993). In the intervening years, however, our legislature has not amended the Act to expressly provide for such a remedy. Under the language of the Act—under either one of two possible interpretations, and as the Act has been interpreted by our supreme court—the District is entirely immune from suit for the acts alleged here. Accordingly, the district court correctly dismissed Larsen‘s complaint.
¶43 Affirmed.