Wagner v. DHS

Wagner v. DHS

IN THE UTAH COURT OF APPEALS

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Tracy D. Wagner and Robert W. Wagner,

Plaintiffs and Appellants,

v.

Utah Department of Human Services and Utah State Development Center,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030106-CA
 

F I L E D
(March 18, 2004)
 

2004 UT App 70

 

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Fourth District, Provo Department

The Honorable Anthony W. Schofield

Attorneys: D. David Lambert and Leslie W. Slaugh, Provo, for Appellants

Mark L. Shurtleff, Nancy L. Kemp, and Barry G. Lawrence, Salt Lake City, for Appellees

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Before Judges Davis, Greenwood, and Thorne.

DAVIS, Judge:

Pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure, the State challenged the sufficiency of Wagner's complaint on the ground that her claims fall within an exception to the waiver of immunity provision of the Utah Governmental Immunity Act (the Act) because her injury arose from an assault and battery. See Utah Code Ann. § 63-30-10(2) (Supp. 2003).(1) The trial court agreed with the State and dismissed Wagner's complaint with prejudice. "When reviewing a dismissal based on [r]ule 12(b)(6), an appellate court must accept the material allegations of the complaint as true, and the trial court's ruling should be affirmed only if it clearly appears the complainant can prove no set of facts in support of . . . her claims." Wright v. University of Utah, 876 P.2d 380, 382 (Utah Ct. App. 1994) (quotations and citations omitted). The trial court's dismissal pursuant to rule 12(b)(6) "is a question of law that we review for correctness, giving no particular deference to the lower court's determination." Id.

In effect, the Act "immunizes government entities from suit for injuries arising out of an assault or battery."(2) Id. "'[T]he words "arising out of" are very broad, general and comprehensive. They are commonly understood to mean originating from, growing out of, or flowing from, and require only that there be some causal relationship between the injury and the risk [provided for].'" Taylor v. Ogden City Sch. Dist., 927 P.2d 159, 163 (Utah 1996) (alterations in original) (citations omitted). Under section 63-30-10(2), Utah courts focus upon "the conduct or situation out of which the injury arose, not on the status of the party inflicting the injury." S.H. v. State, 865 P.2d 1363, 1365 (Utah 1993). Furthermore, an assault and battery need not be committed by a State employee to fall under the Act's intentional tort exception to the waiver of immunity. See Higgins v. Salt Lake County, 855 P.2d 231, 240 (Utah 1993) ("When we have considered claims that the [S]tate's negligence permitted an assault by a person who was not a [S]tate employee, we have held uniformly that the [S]tate is immune.").

Three factors determine whether the State is immune from suit under the Act:

"(1) Was the activity undertaken by the entity a governmental function and therefore immunized from suit under the general grant of immunity contained in Utah Code [Annotated section] 63-30-3[ (Supp. 2003)]?

(2) If the activity undertaken was a governmental function, has another section of the Act waived that blanket immunity?

(3) If immunity has been waived, does the Act contain an exception to that waiver resulting in a retention of immunity against the claim asserted?"

Taylor, 927 P.2d at 162 (citations omitted).

Both the State and Wagner agree that the first two factors do not shield the State. Respecting the third factor, however, the State argues that the actions of Sam Giese, a mentally incompetent patient of the Utah State Development Center (the Center), a state agency, fit the intentional tort exception to the waiver of immunity under section 63-30-10(2). Wagner argues that Sam Giese could not commit an intentional tort because "[m]entally incompetent people are incapable of forming the requisite intent to commit an intentional tort."

Accepting the material allegations of the complaint as true, see Wright, 876 P.2d at 382, we must agree with the State. Wagner alleges that Giese, who was brought to a local department store by the Center as part of his therapy, injured Wagner when he "became violent, took Tracy D. Wagner by the head and hair, and threw her to the ground and otherwise acted in such a way as to cause serious bodily injury." Taking this statement as true, it is clear that, under our jurisprudence, Wagner's injury arose out of Giese's assault and battery. See Utah Code Ann. § 63-30-10(2).

Wagner relies on Matheson v. Pearson, 619 P.2d 321 (Utah 1980), a case where a defendant intentionally struck and subsequently injured an individual with a Tootsie Pop, but no harm was intended because the defendant was merely playing an "adolescent prank." Id. at 322. The supreme court concluded that because "the defendant acted with no intent to harm the plaintiff and [his] acts did not create a substantial certainty of harm from which a harmful intent can be imputed," the defendant did not commit an intentional tort. Id. at 323.

Matheson is distinguishable from this case because it did not involve the Act, which requires us to focus upon "the conduct or situation out of which the injury arose." S.H. v. State, 865 P.2d 1363, 1365 (Utah 1993); see also Wright, 876 P.2d at 383 (concluding that the Act barred claim by plaintiff alleging that the University was liable, under a theory of negligent hiring and supervision, for injuries suffered when its employee, with a known propensity for violence, assaulted plaintiff because the injuries arose from an assault and battery). When we examine Giese's conduct, it is clear that, unlike the defendant in Matheson, Giese committed an assault and battery because he created a "substantial certainty that harm [would] result" when he acted violently, took Wagner by her head and hair, and threw her to the ground. Matheson, 619 P.2d at 322.

Case law from other jurisdictions supports this conclusion. In a case dealing with the similar issue of whether an individual's mental state when committing an otherwise intentional tort prevented a tort victim from bringing suit against the federal government under the Federal Tort Claims Act, the Second Circuit Court of Appeals held that "[w]hile an insane employee may or may not be less culpable personally for such attacks, the question of whether the injury was perpetrated deliberately or accidentally does not depend upon the employee's sanity." Miele v. United States, 800 F.2d 50, 52 (2d Cir. 1986). In Spaulding v. United States, 621 F. Supp. 1150 (D. Me. 1985), the court stated that "it seems extremely unlikely that Congress contemplated that [the intentional tort exception to the waiver of immunity under the Federal Tort Claims Act] would be avoidable on so amorphous a basis as the assailant's precise mental state at the moment of the commission of the tort."(3) Id. at 1154.

Because Giese committed an assault and battery within the meaning of our jurisprudence interpreting the Act, we affirm the trial court's dismissal of Wagner's claims because they fall under the Act's assault and battery exception to the waiver of governmental immunity. See Utah Code Ann. § 63-30-10(2).

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James Z. Davis, Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge

1. We cite to the most current version of this statute for the convenience of the reader.

2. This provision of the Act states in pertinent part:

Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of, in connection with, or results from:

. . . .

(2) assault, battery, false imprisonment, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, or violation of civil rights[.]

Utah Code Ann. § 63-30-10(2) (Supp. 2003).

3. Both Miele v. United States, 800 F.2d 50 (2d Cir. 1986), and Spaulding v. United States, 621 F. Supp. 1150 (D. Me. 1985), were quoted in dicta in Wright v. University of Utah, 876 P.2d 380, 386-87 (Utah Ct. App. 1994). Today, we conclude that the reasoning from both Miele and Spaulding is persuasive and adopt it for this case.