Mower v. Childrens Ctr , 422 P.3d 837 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 29
IN THE
SUPREME COURT OF THE STATE OF UTAH
THOMAS E. MOWER,
Appellant,
v.
NANCY BAIRD
and THE CHILDREN’S CENTER,
Appellees.
No. 20160149
Filed July 5, 2018
On Direct Appeal
Third District, Salt Lake
The Honorable Robert P. Faust
No. 150905061
Attorneys:
Douglas B. Thayer, Mark R. Nelson, Lehi, David L. Arrington, Salt
Lake City, for appellant
Gregory J. Sanders, Sarah C. Vaughn, Salt Lake City, for appellees
Troy L. Booher, Julie J. Nelson, John J. Hurst, Salt Lake City, for
amici National Association of Social Workers; National
Association of Social Workers, Utah Chapter; Utah Psychological
Association; Utah Medical Association; Utah Psychiatric
Association; and Utah Academy of Child and Adolescent
Psychiatry
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUDGE PETTIT joined.
Due to her retirement, JUSTICE DURHAM did not participate herein;
DISTRICT COURT JUDGE KARA L. PETTIT sat.
MOWER v. BAIRD
Opinion of the Court
JUSTICE PETERSEN became a member of the Court on November 17,
2017, after oral argument in this matter and accordingly did not
participate.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶ 1 The law isn’t good-for-nothing when a therapist causes a
child to falsely accuse a parent of sexual abuse.
¶ 2 In March 2011, Thomas Mower’s now ex-wife, Lidia
Mower, began taking their four-year-old daughter, T.M., to The
Children’s Center for therapy. The Children’s Center provided
services to T.M. through Nancy Baird. During Ms. Baird’s
treatment of T.M., she allegedly engaged in practices that were
both contrary to commonly-accepted treatment protocol and
expressly rejected by the profession. As a result of Ms. Baird’s
treatment, false allegations of sexual abuse were levied against
Mr. Mower.
¶ 3 Mr. Mower sued Ms. Baird and The Children’s Center
(collectively, the defendants) for the harm he suffered as a result
of T.M.’s treatment. The defendants moved to dismiss these
claims under rule 12(b)(6) of the Utah Rules of Civil Procedure.
The district court granted the defendants’ motion on the grounds
that therapists don’t have “a duty of care to potential sexual
abusers when treating the alleged victim.”
¶ 4 Underlying the district court’s decision are two issues of
first impression: (1) whether a treating therapist working with a
minor child owes a traditional duty of reasonable care to a
nonpatient parent to refrain from giving rise to false memories or
false allegations of sexual abuse by that parent; and, if so,
(2) whether we should extend that duty to exercising reasonable
care when placing a nonpatient parent at risk of severe emotional
distress. Under the framework for analyzing whether a traditional
duty exists, established by B.R. ex rel. Jeffs v. West, 2012 UT 11, 275
P.3d 228, we determine that a duty to a nonpatient parent exists
but limit that duty to an affirmative act: the affirmative act of
recklessly giving rise to false memories or false allegations of
childhood sexual abuse by that parent. Similarly, we conclude
that a treating therapist owes a duty to refrain from affirmatively
causing the nonpatient parent severe emotional distress by
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recklessly giving rise to false memories or false allegations of
childhood sexual abuse by that parent. Accordingly, we reverse
the district court’s dismissal of Mr. Mower’s claims and remand
for further proceedings. 1
BACKGROUND
¶ 5 Because this case is before us on appeal of a motion to
dismiss for failure to state a claim, we, like the district court, take
the factual allegations in the complaint as true. See Hudgens v.
Prosper, Inc., 2010 UT 68, ¶ 2, 243 P.3d 1275; Brown v. Div. of Water
Rights of the Dep’t of Nat. Res., 2010 UT 14, ¶ 10, 228 P.3d 747.
¶ 6 While married, Ms. and Mr. Mower had one daughter
together, T.M. In March 2011, Ms. Mower began bringing T.M.,
then four-and-a-half years old, to The Children’s Center to see
Ms. Baird, a Licensed Clinical Social Worker. She did this without
Mr. Mower’s knowledge or consent.
¶ 7 By the end of T.M.’s initial intake assessment, Ms. Baird
allegedly assumed, based on information provided by Ms. Mower
and Ms. Baird’s observation of T.M., that T.M. had been sexually
abused by Mr. Mower. Because Ms. Baird assumed that sexual
abuse had likely occurred, she called the Division of Child and
Family Services (DCFS) to make a report. DCFS told Ms. Baird
that the information didn’t presently warrant a report but asked
her to continue to gather information.
¶ 8 According to established guidelines regarding treatment
for allegations of potential sexual abuse, 2 Ms. Baird should have
ended all therapy and allowed a forensic interviewer (a role for
1 We don’t, however, reach what duty, if any, The Children’s
Center owes to Mr. Mower in his medical malpractice claim—an
issue not truly before us. The district court dismissed all of
Mr. Mower’s claims on the grounds that a therapist owes no duty
to an alleged sex abuser. We reverse this decision because we
conclude that a duty does exist. On remand, the district court will
have to determine whether The Children’s Center owes a duty to
Mr. Mower in this particular instance.
2 Mr. Mower hasn’t alleged the specific guidelines or how
they’re established in his complaint. We draw the inference that
he’ll be able to do so before trial.
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which Ms. Baird wasn’t trained) to take over to determine if
sexual abuse had occurred. Ms. Baird, however, purportedly
decided to act in the capacity of a combined therapist and
investigator and continued with her therapy/interview sessions
until October 2012. Ms. Baird allegedly conducted these sessions
with methods that were tainted by confirmatory bias, diagnostic
suspicion bias, and socially desired responses, and were therefore
unreliable. She repeatedly asked T.M. questions “designed to
corroborate claims of sexual abuse” and “that further reinforced
the tainting of TM’s memory.” This type of questioning creates a
high risk that a child will “confuse what she has heard through
repeated questioning as something she actually experienced.”
Compounding this problem, Ms. Baird failed to electronically
record the initial sessions or take adequate notes of the questions
and answers given, which might have made it possible to later
determine the accuracy of T.M.’s statements.
¶ 9 During Ms. Baird’s treatment of T.M., The Children’s
Center purportedly provided little to no training, supervision, or
oversight. Ms. Baird had “no knowledge of or training in false
memory, confirmatory bias, diagnostic suspicion bias, or social
desirability responses.” Ms. Baird disregarded standardized test
results when diagnosing T.M., kept insufficient records of the
sessions, repeatedly questioned T.M. about the same events, and
served an inappropriate dual role: therapist for T.M. and
investigator for DCFS.
¶ 10 Mr. Mower first found out about T.M.’s therapy from
papers Ms. Mower filed in their divorce proceedings in summer
2012. Also in 2012, based at least in part upon Ms. Baird’s
interviews with T.M., DCFS made a “supported” finding of sexual
abuse against Mr. Mower. Mr. Mower challenged that finding in
juvenile court, resulting in DCFS changing the finding from
“supported” to “unsupported.” The juvenile court then found the
allegations “unsubstantiated.”
¶ 11 Ms. Baird’s treatment allegedly damaged the healthy
parent-child relationship Mr. Mower and T.M. once enjoyed.
Additionally, the false allegations of sexual abuse have harmed
and stigmatized Mr. Mower’s reputation. Mr. Mower has also
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allegedly suffered significant emotional turmoil and pain as a
result of the defendants’ negligence. 3
¶ 12 As a consequence, Mr. Mower filed this lawsuit against
the defendants for the harm he allegedly suffered as a result of
T.M.’s treatment, asserting causes of action for (1) medical
malpractice/negligence against The Children’s Center, (2) medical
malpractice/negligence against Ms. Baird, and (3) respondeat
superior against The Children’s Center. 4 The defendants filed a
motion to dismiss these claims under rule 12(b)(6) of the Utah
Rules of Civil Procedure. The district court granted the
defendants’ motion, holding that therapists don’t have a duty “to
potential sexual abusers when treating the alleged victim.”
¶ 13 Mr. Mower appeals this decision. Utah Code section
78A-3-102(3)(j) gives us jurisdiction.
STANDARD OF REVIEW
¶ 14 “[W]hether a ‘duty’ exists is a question of law . . . .”
Weber ex rel. Weber v. Springville City, 725 P.2d 1360, 1363 (Utah
1986) (citation omitted). We review questions of law “under a
correctness standard.” St. Benedict’s Dev. Co. v. St. Benedict’s Hosp.,
811 P.2d 194, 196 (Utah 1991) (citations omitted).
ANALYSIS
¶ 15 The district court dismissed this case on the grounds that
a treating therapist owes no duty of care “to potential sexual
abusers when treating the alleged victim.” If such a duty does
exist, the parties to this action disagree about whether it includes
a duty to not affirmatively cause severe emotional harm. We must
therefore determine whether Ms. Baird did in fact owe Mr. Mower
a duty and, if so, whether it extends to emotional harm. We begin
by determining that Ms. Baird owes Mr. Mower a limited
traditional duty. Next, to help contextualize the disagreement
between the parties, we discuss some general principles of
negligence for legal context and the development of negligent
3 Not all of these alleged harms are compensable. See infra
¶¶ 46, 100 n.20.
4 T.M. isn’t a party to this action. Mr. Mower’s claims aren’t
derivative claims based on the breach of any duty owed to T.M.
but his own claims for his own injuries.
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infliction of emotional distress law in Utah and around the
country. Then we consider whether we should adopt a limited
duty similar to that provided in section 47(b) of the Restatement
(Third) of Torts and, if so, what the appropriate test would be.
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND
EMOTIONAL HARM § 47(b) (AM. LAW INST. 2012). And, after
concluding that a limited duty test should exist, we go on to
determine whether a limited emotional distress duty also exists.
I. TREATING THERAPISTS OWE A TRADITIONAL DUTY TO
NOT AFFIRMATIVELY ACT IN A MANNER THAT
RECKLESSLY CAUSES PHYSICAL HARM TO NONPATIENT
PARENTS OR THEIR PROPERTY IN THE THERAPIST’S
TREATMENT OF THE PARENT’S MINOR CHILD FOR
ALLEGED SEXUAL ABUSE
¶ 16 The threshold question in a negligence claim is whether
the defendant owed a duty to the plaintiff. See B.R. ex rel. Jeffs v.
West, 2012 UT 11, ¶ 5 n.2, 275 P.3d 228. “An actor ordinarily has a
duty to exercise reasonable care when the actor’s conduct creates
a risk of physical harm.” Id. ¶ 21 n.11 (quoting RESTATEMENT
(THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM
§ 7(a) (AM. LAW INST. 2012)). A duty to act with reasonable care
“must be determined as a matter of law and on a categorical basis
for a given class of tort claims.” Id. ¶ 23 (citations omitted). “We
therefore analyze each pertinent factor in the duty analysis ‘at a
broad, categorical level for a class of defendants’ without focusing
on the particular circumstances of a given case.” Scott v. Universal
Sales, Inc., 2015 UT 64, ¶ 33, 356 P.3d 1172 (quoting Jeffs, 2012 UT
11, ¶ 23).
¶ 17 In Jeffs, we established a five-factor test for determining
“whether a defendant owes a duty to a plaintiff”:
(1) whether the defendant’s allegedly tortious
conduct consists of an affirmative act or merely an
omission; (2) the legal relationship of the parties;
(3) the foreseeability or likelihood of injury;
(4) “public policy as to which party can best bear the
loss occasioned by the injury”; and (5) “other
general policy considerations.”
Jeffs, 2012 UT 11, ¶ 5 (citations omitted). “Not every factor is
created equal, however. . . . [S]ome factors are featured heavily in
certain types of cases, while other factors play a less important, or
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different, role.” Id. The first two factors are considered “plus”
factors used to determine whether a duty would normally exist.
See id. The final three factors are considered “minus” factors “used
to eliminate a duty that would otherwise exist.” Id.
¶ 18 In this case, we’re required to determine whether a
treating therapist owes a duty of care to a nonpatient parent in the
treatment of the parent’s minor child for potential sexual abuse
alleged against that parent. 5 Applying the Jeffs factors, we find
that a treating therapist does owe such a duty, albeit a limited
one, to nonpatient parents.
A. The Jeffs “Plus” Factors Favor Creating a Duty
¶ 19 When determining whether a duty exists under the Jeffs
factors, the two “plus” factors “are interrelated”. Id. ¶ 7. The first
factor stems from “[t]he long-recognized distinction between acts
and omissions—or misfeasance and nonfeasance.” Id. “Acts of
misfeasance, or active misconduct working positive injury to
others, typically carry a duty of care.” Id. (citation omitted)
(internal quotation marks omitted). Conversely, “[n]onfeasance—
passive inaction, a failure to take positive steps to benefit others,
or to protect them from harm not created by any wrongful act of
the defendant”—only gives rise to a duty when a special legal
relationship exists. Id. (citation omitted) (internal quotation marks
omitted).
¶ 20 In cases of misfeasance, the “plus” factor analysis almost
always rests on the first factor—the affirmative misconduct
creates a duty of care and a special legal relationship isn’t
5 Our analysis today only applies where a parent is suing the
therapist for negligence in the treatment of the parent’s minor
child. We recognize that the factors we discuss in Parts I and IV
might weigh differently when the patient is an adult or the
alleged abuser is an individual other than the child’s parent.
Because these issues aren’t before us, we don’t consider them
today. Cf. Roberts v. Salmi, 866 N.W.2d 460, 469 n.5 (Mich. Ct. App.
2014) (leaving the determination of whether a therapist owes a
duty “to other persons who might foreseeably be harmed by a
patient’s false memory of sexual abuse, such as a pastor or
teacher” to future courts).
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required. 6 See id. ¶¶ 6–7, 10. If, however, a duty isn’t established
under the first factor, as in cases of nonfeasance, the second factor
can be “used to impose a duty where one would otherwise not
exist.” Id. ¶ 5.
¶ 21 By providing therapy to a minor child, a treating
therapist may engage in “active misconduct” if he or she “uses
inappropriate treatment techniques or inappropriately applies
otherwise proper techniques.” Roberts v. Salmi, 866 N.W.2d 460,
474 (Mich. Ct. App. 2014) [hereinafter Roberts I]; 7 cf. Scott, 2015 UT
64, ¶ 36 (“By placing inmates in the community, the County
engaged in ‘active misconduct’ if its screening procedures were
inadequate to discover obvious dangers work-release participants
might pose to the public.”). We’re not asking whether a treating
therapist “has a duty to ensure that a patient’s allegations are true
before reporting them or to otherwise protect a patient’s parents
from potentially false allegations of sexual abuse.” Roberts I, 866
N.W.2d at 470. Rather, it’s a question of misfeasance—such as
“the negligent use of therapeutic techniques on a patient that
actually cause the patient to have a false memory of childhood
sexual abuse.” Id. (citations omitted). Thus, this isn’t a case of
passive inaction that results in an injury to another; this conduct
involves an affirmative act that establishes that a duty would
normally exist.
6 This isn’t to say, however, that a special legal relationship
won’t strengthen the “plus” factors to establish a duty in the face
of strong “minus” factors. But Mr. Mower hasn’t argued that a
special legal relationship exists here, and thus we don’t consider
this factor in our analysis.
7 The Michigan Supreme Court originally granted leave to
appeal this decision to “address whether a mental health
professional has a duty of care to third parties who might
foreseeably be harmed by the mental health professional’s use of
techniques that cause a patient to have false memories of sexual
abuse.” Roberts v. Salmi, 868 N.W.2d 911, 911 (Mich. 2015) (Mem),
vacated, 877 N.W.2d 903 (Mich. 2016) (Mem). However, after
receiving briefing and hearing oral arguments, the Michigan
Supreme Court vacated the leave to appeal “because [they] [we]re
no longer persuaded that the questions presented should be
reviewed by [the Supreme] Court.” Roberts, 877 N.W.2d at 903–04.
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¶ 22 For this reason, a special legal relationship need not exist
for a treating therapist to owe a duty to a nonpatient parent; the
treating therapist’s affirmative acts are sufficient. But, as we
explain below, while the “minus” factors don’t favor entirely
eliminating this duty to exercise reasonable care when
undertaking the affirmative act of providing therapy, they do
warrant limiting this duty to refraining from recklessly giving rise
to false memories or allegations of sexual abuse.
B. The Jeffs “Minus” Factors Weigh in Favor of Creating a Limited
Duty
¶ 23 The defendants and their amici ask us to conclude—
based mainly on policy considerations—that a treating therapist
doesn’t owe a duty to anyone other than his or her patient. We
find no basis for categorically excluding all treating therapists
from liability for carelessly providing therapy to a minor child in a
manner that affirmatively harms the nonpatient parent. Instead,
we hold that such a duty exists, but policy considerations advise
limiting the duty to a recklessness standard.
1. Foreseeability
¶ 24 The foreseeability analysis for duty is distinct from that
for breach or proximate cause. Jeffs, 2012 UT 11, ¶ 24.
“[F]oreseeability in [a] duty analysis is evaluated at a broad,
categorical level.” Id. ¶ 25. This analysis focuses on “‘the general
relationship between the alleged tortfeasor and the victim’ and
‘the general foreseeability’ of harm” rather than “‘the specifics of
the alleged tortious conduct’ such as ‘the specific mechanism of
the harm.’” Id. (quoting Normandeau v. Hanson Equip., Inc., 2009
UT 44, ¶ 20, 215 P.3d 152).
¶ 25 Thus, “[t]he appropriate foreseeability question for [a]
duty analysis is whether a category of cases includes individual
cases in which the likelihood of some type of harm is sufficiently
high that a reasonable person could anticipate a general risk of
injury to others.” Id. ¶ 27. 8 Here, the relevant category of cases
8 The defendants repeatedly argue that there is no
foreseeability, and thus there should be no duty, because “[i]t is
undisputed that [Mr.] Mower was not placed in danger of bodily
harm,” and there is “a general rule that negligently-caused pure
emotional harm is not recoverable even when it is foreseeable.”
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includes treating therapists who carelessly provide therapy to a
minor child patient for potential sex abuse in a manner that
injures the nonpatient parent through false allegations or
memories of sexual abuse. “And the foreseeability question is
whether there are circumstances within that category in which
[treating therapists] could foresee injury.” Id. We conclude there
is.
¶ 26 There are undoubtedly circumstances within this
category which present highly foreseeable risks, such as a treating
therapist using rejected therapeutic methods that create a
significant likelihood of implanting false memories of abuse into a
minor child’s mind or convincing a child to levy false accusations
of abuse. “It is indisputable that being labeled a child abuser . . .
often results in grave physical, emotional, professional, and
personal ramifications.” Hungerford v. Jones, 722 A.2d 478, 480
(N.H. 1998) (emphasis added) (citation omitted) (internal
quotation marks omitted). And it’s certainly reasonably
foreseeable that a parent, upon learning of allegations of sexual
abuse committed against his or her child by another person, might
become violent and attack the accused or the accused’s property.
Cf. United States v. Kupfer, 68 F. App’x 927, 930 (10th Cir. 2003) (the
defendant shot a man that “had allegedly sexually assaulted [the]
(Quoting RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL
AND EMOTIONAL HARM § 47 cmt. i). This argument fundamentally
misconstrues the appropriate foreseeability analysis for duty—it
is not whether the specific injury a plaintiff suffered was
foreseeable or whether that injury would be a compensable harm.
The defendants’ argument better belongs in the question of breach
or damages. See Jeffs, 2012 UT 11, ¶ 24.
Our case law does generally require a plaintiff to show that he
or she was in the zone of physical danger to recover for negligent
infliction of emotional distress cases. See infra ¶ 59. And it may be
true that if the only harm that is foreseeable from a defendant’s
negligence—correctly analyzed on the categorical level—is
emotional harm, we might conclude that the foreseeability factor
in the Jeffs test weighs against finding a duty. But the
foreseeability question in the duty analysis cannot focus on the
harm allegedly suffered by the plaintiff in the case. Instead, it
must focus on the category at issue as a whole.
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defendant’s sister”); United States v. Lofton, 776 F.2d 918, 919 (10th
Cir. 1985) (the defendant shot her husband while arguing about
allegations that he had sexually abused her daughter). 9 Such a
reaction in this circumstance is even more foreseeable given the
importance of the parent-child relationship and the emotions
involved. Cf. In re K.S., 737 P.2d 170, 172 (Utah 1987) (“The
parent-child relationship is constitutionally protected, and
termination of that relationship is a drastic measure . . . .”
(citations omitted)); In re J.P., 648 P.2d 1364, 1373 (Utah 1982)
(“[T]he most universal relation in nature . . . [is] that between
parent and child.” (second alteration in original) (citation
omitted)); In re P.L.L., 597 P.2d 886, 889 (Utah 1979) (recognizing
“our general reluctance to sever the natural parent-child
relationship”). 10
¶ 27 Because this category includes circumstances where a
risk of physical injury to nonpatient parents or their property is
reasonably foreseeable, the foreseeability factor doesn’t weigh
against imposing a duty on treating therapists to conduct a minor
child’s therapy in a manner that “refrain[s] from affirmatively
causing injury to nonpatient[]” parents. Jeffs, 2012 UT 11, ¶ 28.
2. Who Best Bears the Loss
¶ 28 The next factor requires determining which party is in
the best “position to bear the loss occasioned by the injury.” Id.
¶ 29 (citation omitted) (internal quotation marks omitted). “The
parties’ relative ability to ‘bear the loss’ has little or nothing to do
with the depth of their pockets.” Id. Instead, the determination is
based on
9 We recognize that the foreseeability of these types of injuries
may be speculative, but we find them to be sufficiently
foreseeable to prevent this factor from weighing against imposing
a duty.
10This isn’t to say that the therapist will necessarily be the
proximate cause of these harms. Cf. Jeffs, 2012 UT 11, ¶ 26
(“[W]hether the precise mixture of drugs did foreseeably cause
Mr. Ragsdale’s outburst is a question of proximate cause, as is
whether Mr. Ragsdale’s criminal conduct supersedes [the nurse’s]
conduct as the proximate cause of Ms. Ragsdale’s death.”).
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whether the defendant is best situated to take
reasonable precautions to avoid injury. Typically,
this factor would cut against the imposition of a
duty where a victim or some other third party is in a
superior position of knowledge or control to avoid
the loss in question. . . . because [the defendant]
lacks the capacity that others have to avoid injury by
taking reasonable precautions.
Id. ¶ 30 (footnotes omitted).
¶ 29 When sexual abuse has actually occurred, the treating
therapist isn’t in the best position to avoid the potential harms.
The third-party abuser is in a better position to avoid the potential
harms, namely by not committing the abuse in the first place. But
the same cannot be said when memories or allegations of “abuse”
emanate from the practices or techniques in the therapy sessions
themselves. Because only the therapist has control over the
instrumentality that creates the nonexistent “abuse,” treating
therapists are “in the best position to avoid the harm caused by
the introduction of false memories.” Roberts I, 886 N.W.2d at 472.
The therapist “alone is responsible for the methods used in
treatment.” Id. “[T]he patient must trust that the [therapist] will
pursue a course of treatment guided by competent professional
judgment” and the parents “have a right to expect that a
[therapist] will not cause the patient to have false memories of
childhood sexual abuse.” Id. at 472–73 (citation omitted). Thus,
this factor doesn’t weigh against the imposition of a duty in
circumstances (such as those alleged in this case) where the
alleged abuse has not in fact occurred. In combination with the
policy considerations set forth below, this factor supports limiting
a treating therapist’s duty to that of not affirmatively giving rise
to false memories or false allegations of sexual abuse by the
plaintiff parent.
3. General Policy Considerations
¶ 30 Finally, the defendants and their amici raise several
general policy arguments to counter the imposition of a duty on
treating therapists. These policy considerations must be analyzed
against this backdrop:
Concluding that no duty exists means that, “for
certain categories of cases, defendants may not be
held accountable for damages they carelessly cause,
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no matter how unreasonable their conduct.” But
recognizing a duty does not itself mean that a
defendant will incur liability; a plaintiff must still
prove the other elements of negligence (breach of
the duty, causation, and damages).
Guerra v. State, 348 P.3d 423, 429 (Ariz. 2015) (Bales, C.J.,
dissenting) (citations omitted).
¶ 31 We find the policy considerations raised are insufficient
to reject a duty on a broad categorical basis. However, the policy
considerations are sufficient to warrant limiting the duty to
conducting treatment in a manner that doesn’t recklessly give rise
to false memories or allegations of childhood sexual abuse. 11 See
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND
EMOTIONAL HARM § 7(b) (“In exceptional cases, when an
articulated countervailing principle or policy warrants denying or
limiting liability in a particular class of cases, a court may decide
that the defendant has no duty or that the ordinary duty of
reasonable care requires modification.”); cf. Roberts I, 886 N.W.2d
at 473 (limiting the “duty to ensur[ing] that the professional’s
treatment does not give rise to false memories of childhood sexual
abuse”).
¶ 32 The defendants and their amici first raise the social
utility of treating and eradicating sexual abuse and allege that a
duty would “chill” a therapist’s treatment of a minor child’s
sexual abuse trauma. We recognize the strong social importance
of providing children therapy for sexual abuse. See, e.g., Althaus ex
rel. Althaus v. Cohen, 756 A.2d 1166, 1170 (Pa. 2000) (“The need for
prevention of child abuse is unquestionable, as is the importance
of adequate psychological treatment for children who have been
sexually abused.”) It’s this importance and social utility, along
with the concerns discussed in paragraph 29, which lead us to
11 Mr. Mower argues that he has a “vested right” in the
negligence standard (i.e. reasonable care) announced by Jeffs that
applied when his claim accrued. We disagree. No case, including
Jeffs, has announced a duty to the category before us. We wouldn’t
be taking away a vested right if we concluded that no duty exists
in this case. Thus, we can’t be taking away a vested right by
limiting the duty we first announce in this case.
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limit a treating therapist’s duty towards nonpatient parents to
acting in a manner that refrains from recklessly causing false
memories or allegations of childhood sexual abuse by that
parent. 12
¶ 33 But we don’t share the concern that any duty to
nonpatient parents would impact a therapist’s treatment. “[T]o
entertain this argument is to accept the facile notion that one will
not engage in conduct unless he can do so recklessly and with
impunity.” Guerra, 348 P.2d at 432 (Bales, C.J., dissenting). In
reality, “the standard of care by which a therapist’s conduct is
measured is not heightened.” Hungerford, 722 A.2d at 481–82. The
duty we announce today “will not burden the therapist with a
standard of care more onerous than that under which he or she is
already required to act in treating his or her patients.” Sawyer v.
Midelfort, 595 N.W.2d 423, 435 (Wis. 1999). As a result, “the
therapist’s treatment choices need be limited only by the duty of
care the therapist owes his or her patient.” Id.
¶ 34 Moreover, “[t]he requirements of breach and proximate
cause . . . counterbalance any improper incentive to withhold
12 After our decision in Jeffs, the legislature enacted Utah Code
section 78B-3-426. Section 78B-3-426(3) requires nonpatient
plaintiffs suing a health care provider for malpractice to establish
that “the health care provider’s . . . conduct . . . manifests a
knowing and reckless indifference toward, and a disregard of, the
injury suffered by the nonpatient plaintiff.”
This section doesn’t apply in this case because it came into
effect after Mr. Mower’s claim arose. Therefore, the arguments in
the briefing regarding whether this statute creates a duty to all
nonpatients and whether it allows recovery for pure emotional
harm aren’t before us, and nothing in this opinion should be read
as an interpretation of that statute.
However, while not dispositive of our decision today, we
believe that it’s important to recognize that the policymaking
branch of our government has weighed the public policies at issue
and determined that, in the circumstances where the statute
applies, a heightened standard is necessary, and a health care
provider can only be liable to a nonpatient where his or her
“conduct . . . manifests a knowing and reckless indifference.”
UTAH CODE § 78B-3-426(3).
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treatment because they pose significant barriers to plaintiffs in
[these] cases.” Cf. Jeffs, 2012 UT 11, ¶ 35. A therapist shouldn’t fear
a duty to nonpatient parents because a therapist who doesn’t
breach that duty won’t be held liable. “Even when a [therapist]
uses a therapeutic technique that actually causes a patient to have
a false memory of sexual abuse,” the therapist “would not be
liable if a reasonable [therapist] would have employed the
technique under the circumstances, notwithstanding the apparent
risk.” Roberts I, 866 N.W.2d at 472.
¶ 35 But we do recognize that treating a minor for potential
sexual abuse is a soft science which can be particularly tricky
when dealing with very young children. Many jurisdictions have
found the concern of a “chilling” effect to be so significant that
they have relied upon it to completely reject a duty. See, e.g., Doe v.
McKay, 700 N.E.2d 1018, 1024–25 (Ill. 1998) (“Hoping to avoid
liability to third parties, however, a therapist might instead find it
necessary to deviate from the treatment the therapist would
normally provide, to the patient’s ultimate detriment.”); Zamstein
v. Marvasti, 692 A.2d 781, 789 (Conn. 1997) (Therapists “should
not be distracted from their duty by the specter of potential
liability to the suspected abuser in the event that their assessment
of the child eventually turns out to be incorrect but honest.”);
Flanders v. Cooper, 706 A.2d 589, 591–92 (Me. 1998) (“Although the
negligent reporting of sexual abuse is not at issue in this case,
there is an inescapable link between the duty to a third party
urged by [the plaintiff] and the willingness of a health care
professional to pursue a course of treatment that would cause a
child to recognize that sexual abuse has occurred.” (footnote
omitted)). Although we’re not convinced that this concern
requires us to conclude that no duty exists, we believe that it
further supports limiting liability to when a therapist acts
recklessly, ensuring that a therapist’s concerns over breaching a
duty to a nonpatient parent only come into play when the
therapist would have significantly violated the standard of care
owed to his or her patient.
¶ 36 The defendants and their amici next contend that
creating a duty in the category before us would force a therapist
to place the interests of third parties above the interests of the
child. But this isn’t the case. When it comes to false memories or
allegations of childhood sexual abuse, the interests of the patient
child and the nonpatient parent are aligned. See Roberts I, 866
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N.W.2d at 468 (“The patient himself or herself is obviously
harmed when a mental health professional uses techniques that
give rise to false memories of sexual abuse.”); cf. Jeffs, 2012 UT 11,
¶ 38 (“[T]he patient’s welfare encompasses an interest in
minimizing a risk of causing harm to third parties.”). And the
duty we announce could only be breached when those interests
are aligned because “the plaintiff would bear the burden of
proving by a preponderance of the evidence that the patient’s
memories [or the allegations] of childhood sexual abuse are
actually false.” Roberts I, 866 N.W.2d at 472.
¶ 37 Next, the defendants and their amici argue that a duty
would undermine confidentiality in the therapist-patient
relationship and the openness in the relationship. But we already
rejected this notion in Jeffs:
The physician-patient privilege and medical privacy
statutes are carefully designed to protect
confidentiality and patient privacy, and a party
concerned about confidentiality in discovery may
seek refuge in a protective order. And even if the
existing law on physician-patient confidentiality is
imperfectly attuned to the concerns implicated in
negligent prescription cases filed by nonpatients, the
solution is to fine-tune that law, not to categorically
foreclose the imposition of a duty.
2012 UT 11, ¶ 37. The same is true of therapist-patient
confidentiality. Thus, concerns over confidentiality don’t warrant
a complete, categorical rejection of a duty.
¶ 38 The defendants and their amici also argue that the
inexactness of therapy requires eliminating a duty. This argument
falls short. “[T]he complexity of a particular profession does not
typically justify the abdication of professional responsibility for
negligence.” Jeffs, 2012 UT 11, ¶ 39. Instead, “complexity of
therapy or treatment necessarily is a factor that informs what is
found to be the standard of due care in a particular case.” Sawyer,
595 N.W.2d at 436. And like the court in Sawyer, “we do not
believe that a therapist should be relieved from liability when his
or her treatment is negligent simply because the problem he or
she is treating is complex.” Id.
¶ 39 Finally, the defendants contend that Utah’s sexual abuse
reporting statute, UTAH CODE § 62A-4a-410, represents a strong
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policy against liability, even when the basis of the claims don’t
arise from a report (or other action covered by the statute). 13 But
section 62A-4a-410 doesn’t grant wholesale immunity for any
report of sexual abuse. Instead, it limits immunity to those acting
in “good faith.” Id. § 62A-4a-410(1). A therapist would be immune
under the statute to the extent that a nonpatient parent alleges
damages that flow from a good-faith report. But this limited
immunity doesn’t warrant removing liability for a whole category
of the defendants, particularly when the category includes actions
not covered by the statute and individuals who are not operating
in good faith, but are instead acting recklessly.
¶ 40 Ultimately, we conclude that the public policy
considerations don’t endorse the wholesale rejection of a duty to
nonpatient parents. But the policy considerations do warrant
limiting such a duty to refraining from recklessly causing false
memories of childhood sexual abuse by the plaintiff parent.
II. DUTIES AND EMOTIONAL DISTRESS DAMAGES IN
NEGLIGENCE CASES
A. A General Overview of Duties in the Law
¶ 41 The parties disagree on whether a duty under the Jeffs
framework extends to not causing emotional harm. A duty is “an
obligation, to which the law will give recognition and effect, to
conform to a particular standard of conduct toward another.” See
B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 5, 275 P.3d 228 (quoting
AMS Salt Indus., Inc. v. Magnesium Corp. of Am., 942 P.2d 315, 321
(Utah 1997)). This obligation changes according to the
relationships of the parties and the legally recognized duties that
inhere in their relationships. These duties can be statutorily based
or recognized in common law.
¶ 42 “Generally, at common law, one who suffers injury to
his person or property because of the negligence of another has a
right of action in tort.” Payne ex rel. Payne v. Myers, 743 P.2d 186,
188 (Utah 1987) (citation omitted); see also Jeffs, 2012 UT 11, ¶ 21
(“As a general rule, we all have a duty to exercise care when
13As the defendants acknowledge, Mr. Mower’s claims don’t
stem from Ms. Baird reporting potential sexual abuse, as she was
required to under the statute. Instead, Mr. Mower’s claims are
based on malpractice committed during T.M.’s treatment.
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engaging in affirmative conduct that creates a risk of physical
harm to others.” (citations omitted)); Maack v. Res. Design &
Constr., Inc., 875 P.2d 570, 580 (Utah Ct. App. 1994) (“A duty to
use ordinary care and skill is not imposed in the abstract. It results
from a conclusion that an interest entitled to protection will be
damaged if such care is not exercised. Traditionally, interests
which have been deemed entitled to protection in negligence have
been related to safety or freedom from physical harm. Thus, where
personal injury is threatened, a duty in negligence has been
readily found. Property interests also have generally been found
to merit protection from physical harm.” (quoting Crowder v.
Vandendeale, 564 S.W.2d 879, 882 (Mo. 1978) (en banc))), abrogated
on other grounds by Davencourt at Pilgrims Landing Homeowners
Ass’n v. Davencourt at Pilgrims Landing, LC, 2009 UT 65, 221 P.3d
234.
¶ 43 The traditional common law duty is framed as “a duty of
reasonable care.” See Williams v. Melby, 699 P.2d 723, 726 (Utah
1985) (citations omitted). Compliance with that traditional duty is
met when the defendant exercises “the care that a reasonable
person would undertake in the defendant’s circumstances.”
Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 37, 345 P.3d 619. The
specific scope of the duty will depend upon the conduct that gives
rise to the duty and the relationship of the plaintiff and the
defendant. See id. ¶ 29 (“[The defendant’s] affirmative acts are a
basis for imposing a duty in the performance of those acts, not for a
broader duty to undertake additional measures aimed at
preventing the sexual assault by a third party.”); Jeffs, 2012 UT 11,
¶ 17 (The court distinguished a court of appeals case by noting
that the court of appeals case “simply indicates that the type of
harm the officer suffered—removal from the police force—did not
come within the range of harms that the physician had a duty to
avoid. That does not mean that the physician lacked a duty to
avoid affirmatively causing physical injury to the officer. If the
physician in [that case] had used a scalpel instead of a tongue
depressor to facilitate a throat examination, presumably the duty
would be as obvious as the ensuing injuries.”); id. ¶ 7 (“Acts of
misfeasance . . . typically carry a duty of care” while
“[n]onfeasance . . . generally implicates a duty only in cases of
special legal relationships.” (citation omitted)). The defendant’s
relationship with a third party may also give rise to a duty of care
to the plaintiff. See Graves, 2015 UT 28, ¶ 20 (“A person generally
has no duty to control the conduct of third persons. This general
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rule, of course, is subject to a significant exception—[the] ‘special
relationship’ principle.” (citations omitted) (internal quotation
marks omitted)).
¶ 44 Our law also recognizes “[l]egal duties” arising from
“contractual, fiduciary, and filial relationships.” AMS Salt Indus.,
942 P.2d at 321; see also Gables at Sterling Vill. Homeowners Ass’n,
Inc. v. Castlewood-Sterling Vill. I, LLC, 2018 UT 4, ¶¶ 52, 56, 417
P.3d 95 (recognizing that fiduciary duties that “give[] rise to a
‘particularized and enhanced duty of care’” include fiduciary
relationships “such as attorney-client, physician-patient, or
insurer-insured” (citations omitted)). Whether a legal duty exists
and the scope of that duty depends on “the structure and
dynamics of the relationship between the parties.” 14 Yazd v.
Woodside Homes Corp., 2006 UT 47, ¶ 15, 143 P.3d 283; see also
Davencourt at Pilgrims Landing, 2009 UT 65, ¶ 37 (recognizing a
“limited fiduciary duty” because of “the nature of the developer’s
relationship with the association and its members”). A defendant
may also be obligated to conform to specific standards of conduct
based upon a statutory duty. See Dugan v. Jones, 615 P.2d 1239,
1248 (Utah 1980) (“Though not occupying a fiduciary relationship
with prospective purchasers, a real estate agent hired by the
vendor is expected to be honest, ethical, and competent and is
answerable at law for breaches of his or her statutory duty to the
public.”), superseded on other grounds by rule, UTAH R. CIV. P. 16(d),
as recognized in Arnold v. Curtis, 846 P.2d 1307 (Utah 1993).
¶ 45 Duties may give rise to negligence claims or only to
specifically recognized causes of action outside of a negligence
14 The attenuation of the relationship is highly relevant to
determining whether a legal duty exists. See Yazd v. Woodside
Homes Corp., 2006 UT 47, ¶ 16, 143 P.3d 283. We have also
identified factors such as “[a]ge, knowledge, influence, bargaining
power, sophistication, and cognitive ability” as some of the most
“prominent among a multitude of life circumstances that a court
may consider in analyzing whether a legal duty is owed by one
party to another.” Id. If the disparity in the “circumstances distorts
the balance between the parties in a relationship to the degree that
one party is exposed to unreasonable risk, the law may intervene
by creating a duty on the advantaged party to conduct itself in a
manner that does not reward exploitation of its advantage.” Id.
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claim. See Gables at Sterling Vill., 2018 UT 4, ¶ 56 (differentiating
between a breach of fiduciary duty claim and a negligence claim);
Davencourt at Pilgrims Landing, 2009 UT 65, ¶ 40 (allowing claims
for negligence and negligent misrepresentation “insofar as the
claims stem from the limited fiduciary duty owed”); Yazd, 2006
UT 47, ¶ 18 (holding that a claim for fraudulent concealment was
warranted where a builder-contractor assumes a legal duty to
homebuyers to communicate material information); Beck v.
Farmers Ins. Exch., 701 P.2d 795, 800 (Utah 1985) (“[If] the duties
and obligations of the parties are contractual rather than
fiduciary[, w]ithout more, a breach of those implied or express
duties can give rise only to a cause of action in contract, not one in
tort.”). A duty also exists to refrain from committing intentional
torts. Graves, 2015 UT 28, ¶ 50 (“[E]veryone has a legal obligation
to refrain from committing intentional torts.”); Beck, 701 P.2d at
800 n.3 (“[T]he law of this state recognizes a duty to refrain from
intentionally causing severe emotional distress to others.”
(citation omitted)).
¶ 46 In a typical negligence claim based on a traditional duty,
a plaintiff may not recover absent physical harm to the plaintiff or
his or her property. See supra ¶ 42. However, in narrow
circumstances, when a defendant breaches the traditional duty
owed to the plaintiff by placing him or her at risk of actual
physical peril, the plaintiff may recover for negligent infliction of
emotional distress. See Hansen v. Sea Ray Boats, Inc., 830 P.2d 236,
239–40 (Utah 1992). Although recovery for emotional distress
usually requires presence in the zone of danger, see id., the
Restatement (Third) of Torts now recognizes limited situations
where defendants will also owe the plaintiff a limited duty to act
with reasonable care when placing one at risk of serious
emotional harm. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR
PHYSICAL AND EMOTIONAL HARM § 47 cmt. g (AM. LAW INST. 2012).
The next two subsections flesh out the development of the law
with respect to the recovery of emotional distress damages in
negligence and negligent infliction of emotional distress cases.
B. Development of Utah Case Law on Negligent Infliction of Emotional
Distress
¶ 47 Historically, “[i]t [was] well established in Utah that a
cause of action for emotional distress [couldn’t] be based upon
mere negligence.” Reiser v. Lohner, 641 P.2d 93, 100 (Utah 1982)
(citations omitted), abrogated by Johnson v. Rogers, 763 P.2d 771
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(Utah 1988). Reiser based that conclusion on two prior decisions:
Samms v. Eccles, 358 P.2d 344 (Utah 1961), abrogated by Johnson v.
Rogers, 763 P.2d 771 (Utah 1988), and Jeppsen v. Jensen, 155 P. 429
(Utah 1916). See Reiser, 641 P.2d at 100 n.26 (citations omitted).
¶ 48 In 1988, this court decided that, based on the age of
Samms and Jeppsen, “a reexamination of their premises [was]
timely.” Johnson, 763 P.2d at 779. We recognized that “negligent
infliction of emotional distress as a separate tort (distinct from the
‘willful and wanton’ infliction of emotional distress or the
negligent infliction of physical injuries with concomitant
emotional injuries) ha[d] evolved rapidly.” Id. (citations omitted).
Although courts across the country had adopted different rules,
by 1988 “no jurisdiction preclude[d] recovery under any
circumstances.” Id. Johnson analyzed three tests used by other
jurisdictions: the impact rule, the zone-of-danger rule (as set forth
in section 313 of the Restatement (Second) of Torts), and a
foreseeability standard (the Dillon rule). Id. at 780–84.
¶ 49 The majority in Johnson recognized a cause of action for
negligent infliction of emotional distress in Utah and adopted the
zone-of-danger rule found in section 313, but acknowledged that,
“[a]t some future date, [the court] may determine that there is
merit in some of the other approaches.” Id. at 785 (Zimmerman, J.,
concurring in part) (representing a majority on the issues
addressed). Then, “we unequivocally adopted the zone of danger
rule.” Boucher ex rel. Boucher v. Dixie Med. Ctr., 850 P.2d 1179, 1182
(Utah 1992) (citing Sea Ray Boats, 830 P.2d at 241).
¶ 50 This court’s selection of the zone-of-danger rule “[was]
based in part on the notion that allowing recovery to all those
who suffer emotional distress because of another’s injury has the
potential of allowing unlimited recovery.” Id. at 1182 (citation
omitted). We recognized that “[t]he scope of a defendant’s duty is
limited to injuries that are the foreseeable result of his or her
carelessness.” Sea Ray Boats, 830 P.2d at 241. So, “[t]o place a duty
upon a defendant to protect bystanders who are not in danger of
bodily injury from purely emotional injury is to allow potentially
unlimited recovery.” Id. We held that “the foreseeability of
emotional injury as the only limit on recovery for that injury is
speculative at best and creates an unjustified risk for a defendant
to bear when he or she has not created a risk of bodily injury to
the plaintiff.” Id. Furthermore, “[t]he approaches that allow
recovery for plaintiffs who are not within the zone of danger have
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not developed rational limits on liability. Rather, these approaches
have led to confusion, inconsistent application, and anomalous
results.” Boucher, 850 P.2d at 1182 (citations omitted).
¶ 51 The zone-of-danger rule, as set out in section 313 of the
Restatement (Second) of Torts, provides:
(1) If the actor unintentionally causes emotional
distress to another, he is subject to liability to the
other for resulting illness or bodily harm if the actor
(a) should have realized that his conduct involved
an unreasonable risk of causing the distress,
otherwise than by knowledge of the harm or peril
of a third person, and
(b) from facts known to him should have realized
that the distress, if it were caused, might result in
illness or bodily harm.
(2) The rule stated in Subsection (1) has no
application to illness or bodily harm of another
which is caused by emotional distress arising solely
from harm or peril to a third person, unless the
negligence of the actor has otherwise created an
unreasonable risk of bodily harm to the other.
RESTATEMENT (SECOND) OF TORTS § 313.
¶ 52 Subsection (1) allows “[a] plaintiff who was within the
zone of danger” to “recover for emotional distress caused by fear
for personal safety even though the plaintiff suffered no physical
harm as a result of the defendant’s breach of duty.” Sea Ray Boats,
830 P.2d at 240; see also id. at 240 n.13 (“Although a literal reading
of subsection (1) does not appear to require that the plaintiff be
within the zone of danger in order to obtain recovery if he or she
feared personal harm, we believe that the case law interpreting
section 313, which requires that the plaintiff be within the zone of
danger, is the proper limitation on recovery. Therefore, we require
that the plaintiff be within the zone of danger.” (citations
omitted)); Boucher, 850 P.2d at 1181 (“[P]laintiffs who suffer
emotional distress because of another’s negligence, though they
do not suffer any physical impact, [may recover] only if the
plaintiffs are placed in actual physical peril and fear for their own
safety.” (citations omitted)).
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¶ 53 Recovery is typically prohibited under subsection (1) for
emotional distress damages arising from the “knowledge of the
harm or peril to a third person.” RESTATEMENT (SECOND) OF TORTS
§ 313(1)(a). However, under subsection (2), a plaintiff may
“recover for emotional distress caused by witnessing injury to
others” in the same manner as under subsection (1) when the
plaintiff is “within the zone of danger created by the defendant’s
breach of duty.” Sea Ray Boats, 830 P.2d at 240 (citation omitted).
¶ 54 Thus, presence in the zone of danger serves as a major
limitation to recovery for negligent infliction of emotional distress
under our case law. But presence in the zone of danger isn’t the
only limitation to recovery for negligent infliction of emotional
distress. Under section 313, a plaintiff can only recover for the
“resulting illness or bodily harm.” RESTATEMENT (SECOND) OF
TORTS § 313.
¶ 55 In Hansen v. Mountain Fuel Supply Co., we were asked to
determine “whether a plaintiff seeking recovery for [negligent
infliction of emotional distress] must demonstrate that the
emotional distress ha[d] manifested itself in physical symptoms.”
858 P.2d 970, 973 (Utah 1993). The majority of the court decided
not to reach the issue, determining that even if mental illness, in
the absence of physical manifestation, was sufficient, the plaintiffs
in the case had not met that standard. Id. at 982 (Zimmerman, J.,
concurring in part and concurring in the result) (representing a
majority of the court).
¶ 56 We were again presented with this question in Harnicher
v. University of Utah Medical Center, 962 P.2d 67 (Utah 1998). In
Harnicher, we determined that “severe emotional distress can
cause mental illness and that genuine mental illness constitutes
real harm.” Id. at 71. But we declined to determine whether
“‘diagnosed mental illness,’ standing alone, is sufficient to
support a claim for negligent infliction of emotional distress.” Id.
And, we further limited recovery by concluding that “practicality
demands that the standard of proof in such cases be more than
merely subjective.” Id. (citation omitted).
¶ 57 We also noted that “the emotional distress suffered
must be severe; it must be such that ‘a reasonable [person,]
normally constituted, would be unable to adequately cope with
the mental stress engendered by the circumstances of the case.’”
Id. at 70 (alteration in original) (quoting Mountain Fuel, 858 P.2d at
975). We found “[s]uch a threshold test [to be] particularly
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necessary because the existence of and cause of a mental illness
often is not obvious in a manner comparable to a physical injury
or illness.” Id. at 72. Since Harnicher, we have continued to require
a plaintiff to “prove [emotional] distress by means of severe
physical or mental manifestations.” Carlton v. Brown, 2014 UT 6,
¶ 57, 323 P.3d 571 (citation omitted).
¶ 58 We have similarly held fast in our zone-of-danger
requirement. We adopted the zone-of-danger rule in part because
the “limitations seem[ed] to strike a fair balance between the
interests those injured have in recovering damages and the
interests of the courts and the public in predictable rules.” Johnson,
763 P.2d at 785 (Zimmerman, J., concurring in part) (expressing a
majority opinion on the issue). We have also emphasized that the
zone-of-danger rule “comports with the basic tort principle that a
person may not recover for vicarious injuries.” Sea Ray Boats, 830
P.2d at 241 (citations omitted). We have frequently been presented
with the opportunity to reconsider our requirements, but have
declined to do so based on the rationale behind the rule. See, e.g.,
id. at 242 (rejecting the Dillon framework for bystander recovery
based on foreseeability and holding that a plaintiff “who feared
for her own safety but was not objectively within the zone of
danger created by the defendants’ breach of duty[] may not
recover for emotional distress caused by her fright”); Boucher, 850
P.2d at 1182 (declining to adopt modifications of the Dillon rule
and noting that our court had “unequivocally . . . rejected any
approach that allows plaintiffs who are not within the zone of
danger to recover for emotional distress caused by witnessing
another’s injury” (citation omitted)); Straub v. Fisher & Paykel
Health Care, 1999 UT 102, ¶¶ 9, 14, 990 P.2d 384 (distinguishing
“between direct victims, those who are in actual physical peril,
and bystanders, those who may witness or be affected by the
actions, but who themselves suffer no actual physical peril” and
prohibiting recovery “unless the plaintiff is a direct victim of the
defendant’s negligence” (citation omitted)).
¶ 59 Throughout these cases, we have highlighted three main
policy concerns that have shaped our law. First, our case law
reflects the need to ensure the genuineness of claims, both in their
existence and in causation. See, e.g., Harnicher, 962 P.2d at 72 (A
threshold severity test is necessary because “the existence of and
cause of a mental illness often is not obvious in a manner
comparable to a physical injury or illness.”). Second, there must
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be reasonable limitations on recovery, both in terms of the
potential class of victims and the severity of the harm required.
See, e.g., Sea Ray Boats, 830 P.2d at 241 (“To place a duty upon a
defendant to protect bystanders who are not in danger of bodily
injury from purely emotional injury is to allow potentially
unlimited recovery. . . . [T]he foreseeability of emotional injury as
the only limit on recovery for that injury is speculative at best and
creates an unjustified risk for a defendant to bear when he or she
has not created a risk of bodily injury to the plaintiff.”); Harnicher,
962 P.2d at 71–72 (requiring the emotional distress suffered to be
“severe”). Finally, plaintiffs should only be allowed to recover for
a breach of a duty owed to them and shouldn’t be allowed to
recover vicariously for a breach of a duty owed another. See, e.g.,
Sea Ray Boats, 830 P.2d at 240–41 (“The zone of danger rule
complements the basic requirement that persons exercise
reasonable care to protect others from injury. Those who breach
their basic duty of care to others will be required to compensate
those who are injured, even when the injuries are not caused by
direct impact, but by the operation of foreseeable emotional
distress. Those plaintiffs to whom a defendant has not breached
the duty of care will be denied recovery, even if they are
bystanders who witness the injury of another to whom the
defendant has breached the duty.”); id. at 241 (“A plaintiff may
only sue in his own right for a wrong personal to him, and not as
the vicarious beneficiary of a breach of duty to another.” (citation
omitted)); Straub, 1999 UT 102, ¶ 15 (refusing to allow recovery
“for emotional distress arising from a situation in which [the
defendants] did not breach a duty of care owed to [the plaintiff]”
(citation omitted)).
C. Development of Emotional Distress Damages Around the Country
¶ 60 As our negligent infliction of emotional distress case law
evolved, we considered the evolution of negligent infliction of
emotional distress claims around the country to guide our case
law. See Johnson, 763 P.2d at 779 (“Virtually all jurisdictions in the
United States now recognize a broad protected interest in mental
tranquility . . . . The negligent infliction of emotional distress as a
separate tort . . . has evolved rapidly only since the 1960s.”
(citation omitted)). In Johnson, for example, we recognized that no
“jurisdiction in the United States . . . bars all recovery for the
negligent infliction of emotional distress.” Id. at 782. Instead,
“[t]he policy considerations in favor of realistic limits on
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negligence liability ha[d] given rise . . . to the impact rule, the
zone-of-danger rule, and the Dillon rule.” Id. After considering the
benefits and drawbacks of these rules, id. at 779–82, we selected
the zone-of-danger rule to govern our negligent infliction of
emotional distress cases, id. at 785 (Zimmerman, J., concurring in
part) (representing a majority on the point).
¶ 61 Similarly, in considering a bystander recovery theory,
we looked at the bystander rules that applied in other courts. See
Sea Ray Boats, 830 P.2d at 242 (considering the bystander rule
adopted by the California Supreme Court in Dillon (citation
omitted)); Straub, 1999 UT 102, ¶¶ 11–14 (rejecting cases that were
“factually dissimilar to the bystander scenario” and treated
plaintiffs as “direct victims” even though not placed in actual
physical peril (citations omitted)). And while we recognized that
“many states have adopted Dillon’s rules as a framework for
recovery in emotional distress cases,” we rejected this rule as
“artificial and unworkable” and highlighted that the rule “is not
based on any breach of a defendant’s duty to a plaintiff, but is
based on vicarious recovery for the breach of a duty to another.”
Sea Ray Boats, 830 P.2d at 242.
¶ 62 Although we haven’t had a significant opportunity to
revisit this area, negligent infliction of emotional distress case law
around the country has continued to evolve. This evolution is best
recognized by the 2012 publication of the Restatement (Third) of
Torts: Liability for Physical and Emotional Harm. Sections 47 and 48
are particularly relevant to following trends in negligent infliction
of emotional distress cases.
¶ 63 Despite the evolution in the law, we note that the basic
tenet behind emotional distress damages still holds true: the
“general rule [is] that negligently caused pure emotional harm is
not recoverable even when it is foreseeable.” RESTATEMENT
(THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM
§ 47 cmt. i. Sections 47 and 48 act as exceptions to this general rule.
Id.
¶ 64 Restatement (Third) section 47(a) adopts a zone-of-danger
test similar to that which we have adopted under Restatement
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(Second) section 313(1). 15 Compare RESTATEMENT (THIRD) OF TORTS:
LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 47(a) with
RESTATEMENT (SECOND) OF TORTS § 313(1). See also RESTATEMENT
(THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM
§ 47 cmt. e (referring to the rule in 47(a) as the “zone-of-danger
requirement”). However, the Restatement (Third) and several
courts across the country have expanded liability for emotional
damages even when a plaintiff was never personally placed in
physical danger.
¶ 65 The first expansion is the bystander rule adopted in
Restatement (Third) section 48—an expansion of the rule we
adopted in Restatement (Second) section 313(2). See Sea Ray Boats,
830 P.2d at 240 (citation omitted) Under Restatement (Third) section
48, a plaintiff may recover for serious emotional harm caused by
witnessing a close family member suffer serious bodily injury at
the hands of the defendant, as long as the plaintiff “perceive[d]
the event contemporaneously,” even if the plaintiff was outside of
the zone of danger. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR
PHYSICAL AND EMOTIONAL HARM § 48 & cmt. a. This section is
based on the rule adopted in Dillon v. Legg, 441 P.2d 912 (Cal.
1968) (in bank). See id. § 48 cmt. a.
¶ 66 Since Dillon was decided, even the California Supreme
Court found it to be unworkable. See Thing v. La Chusa, 771 P.2d
814, 826 (Cal. 1989) (in bank) (“The Dillon experience confirms . . .
that [f]oreseeability proves too much. . . . Although
[foreseeability] may set tolerable limits for most types of physical
harm, it provides virtually no limit on liability for nonphysical
harm.” (second and third alterations in original) (citation omitted)
(internal quotation marks omitted)). As the Restatement (Third)
recognizes, twenty-nine “jurisdictions now follow Dillon or a
modified version of the Dillon approach” while eleven
15 We note that one major difference is that Restatement (Third)
section 47 requires the conduct to “cause[] serious emotional
harm” instead of “severe” emotional harm. See RESTATEMENT
(THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM
§ 47; id. § 47 cmt. j (explaining the differences between “serious”
and “severe” emotional harm). Our case law requires a plaintiff to
establish “severe” emotional distress. Harnicher, 962 P.2d at 72
(quoting Mountain Fuel, 858 P.2d at 975).
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jurisdictions (including Utah) “permit bystander recovery only
when the plaintiff is in the ‘zone of danger.’” RESTATEMENT
(THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM
§ 48 reporter’s notes cmt. a (citations omitted).
¶ 67 We have previously considered, and rejected, this
bystander rule. As the Restatement (Third) notes, a bystander’s
claim “is derivative of the physically injured person’s tort claim
against the tortfeasor.” Id. § 48 cmt. d. But, under Utah law, “[a]
plaintiff may only sue in his own right for a wrong personal to
him, and not as the vicarious beneficiary of a breach of duty to
another.” Sea Ray Boats, 830 P.2d at 241 (citations omitted).
¶ 68 The second example of this expansion, and the portion
of the Restatement (Third) most relevant to our analysis today, is
section 47(b). Under section 47(b), a plaintiff can recover for
serious emotional harm if the harm “occurs in the course of
specified categories of activities, undertakings, or relationships in
which negligent conduct is especially likely to cause serious
emotional harm.” Id. § 47.
¶ 69 Restatement (Third) section 47(b) stems from cases around
the country that recognized certain circumstances where a
plaintiff should be allowed to recover for negligently inflicted
emotional distress even when “the defendant [hasn’t] created a
risk of bodily harm to the plaintiff.” Id. § 47 cmt. f. Section 47(b)
recognizes that some parties have a limited duty to exercise
reasonable care when placing another at risk of serious emotional
harm when engaged in certain conduct. Id. § 47 cmt. g.
¶ 70 Courts originally recognized two types of cases that
served as a predicate for the rule under section 47(b):
“(1) delivering a telegram or other communication erroneously
announcing death or illness; and (2) mishandling a corpse or
bodily remains.” Id. § 47 cmt. f. Courts around the country have
expanded liability beyond those two types of cases, permitting
recovery for claims such as
a physician negligently diagnos[ing] a patient with a
dreaded or serious disease; a physician negligently
caus[ing] the loss of a fetus; a hospital los[ing] a
newborn infant; a person injur[ing] a fetus; a
hospital (or another) expos[ing] a patient to HIV
infection; an employer mistreat[ing] an employee; or
a spouse mentally abus[ing] the other spouse.
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Id.
¶ 71 Different courts have since adopted different tests and
parameters. Some courts have adopted an independent duty rule
that “allow[s] recovery where the claimant establishes the breach
of some independent duty.” Larsen v. Banner Health Sys., 81 P.3d
196, 202 (Wyo. 2003) (citations omitted). This rule allows recovery
for emotional distress damages that aren’t accompanied by
physical injury “where the nature of the relationship between the
parties is such that there arises a duty to exercise ordinary care to
avoid causing emotional harm.” Lawrence v. Grinde, 534 N.W.2d
414, 421 (Iowa 1995) (citations omitted). Similarly, Alaska
“recognizes a ‘preexisting duty exception’ . . . . [where] a plaintiff
may recover when the parties stand in a contractual or fiduciary
relationship and the nature of this relationship imposes a duty
that would foreseeably result in emotional harm to the plaintiff.”
Larsen, 81 P.3d at 203 (quoting Kailstrom v. United States, 43 P.3d
162, 166 (Alaska 2002)).
¶ 72 At times, this duty is rooted in a contractual relationship.
See, e.g., id. at 206 (“[I]n Wyoming, in the limited circumstances
where a contractual relationship exists for services that carry with
them deeply emotional responses in the event of breach, there
arises a duty to exercise ordinary care to avoid causing emotional
harm.”). At other times, the duty is rooted in a special relationship
between the parties. See, e.g., Doe Parents No. 1 v. State, Dep’t of
Educ., 58 P.3d 545, 582–90 (Haw. 2002) (concluding that, based on
a “special relationship” between the school and the parents, a
school owed a duty of care to parents of children to protect the
children from sexual abuse at school and holding the school liable
for the parents’ emotional distress damages that resulted from the
child being sexually abused).
¶ 73 Since the Restatement (Third) was adopted, many courts
have considered or accepted section 47(b) and established tests to
determine when it has been satisfied. See, e.g., Guerra v. State, 348
P.3d 423, 428–433 (Ariz. 2015) (Bales, C.J., dissenting); Miranda v.
Said, 836 N.W.2d 8, 28–30 (Iowa 2013); Hedgepeth v. Whitman
Walker Clinic, 22 A.3d 789, 817–19 (D.C. 2011) In Hedgepeth, the
court highlighted two determinative factors required for a duty to
exist under a draft version of section 47(b): “(1) a relationship or
undertaking to the plaintiff that necessarily implicates the
plaintiff’s emotional well-being, and (2) the special likelihood that
the defendant’s negligence in the course of performing obligations
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pursuant to such relationship or undertaking will result in
emotional distress.” 22 A.3d at 815. Based on these factors, the
court concluded that a clinic had a duty to the plaintiff to not
misdiagnose the plaintiff as HIV-positive. Id. at 820.
¶ 74 In Miranda, 836 N.W.2d 8, Iowa also considered what
test was appropriate for section 47(b). The court noted that “the
existence of a duty of care to protect against emotional harm in
negligence claims will turn on the nature of the relationship
between the parties, as well as the nature of the transaction or
arrangement responsible for creating the relationship.” Miranda,
836 N.W.2d at 28. And in determining if the relationship is one
where “negligent conduct is especially likely to cause severe
emotional distress, [the Iowa Supreme Court] ha[s] primarily
considered any remoteness between the negligent conduct and
the harm to the plaintiff.” Id. at 30 (citations omitted). Moreover,
conduct is “especially likely to cause severe emotional distress
when the conduct [i]s specifically directed at the plaintiff.” Id.
(citation omitted).
¶ 75 Although different courts have adopted different
approaches, the Restatement (Third) gives three suggested
boundaries. First, “foreseeability cannot appropriately be
employed as the standard to limit liability for emotional harm.”
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND
EMOTIONAL HARM § 47 cmt. i. Second, “the policy issues
surrounding specific categories of undertakings, activities, and
relationships must be examined to determine whether they merit
inclusion among the exceptions to the general rule of no liability.”
Id. Finally, “[t]he more general protection for emotional harm
contained in [section 47] should not be used to dilute or modify
the requirements of those torts” that “protect specific aspects of
emotional tranquility,” such as “defamation, invasion of privacy,
false imprisonment, and malicious prosecution.” Id. § 47 cmt. o.
III. A LIMITED DUTY TO REFRAIN FROM INFLICTING
SEVERE EMOTIONAL DISTRESS OUTSIDE OF
ZONE-OF-DANGER CASES
¶ 76 Based on the evolution of the law around the country, as
well as the policy considerations at play, we believe that it‘s time
to expand our recovery for negligent infliction of emotional
distress in very limited circumstances. Specifically, we believe that
there are certain types of relationships, activities, and
undertakings that go to the core of another person’s emotional
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well-being and security. Individuals who are engaged in such a
relationship, activity, or undertaking have a duty to refrain from
causing the other person severe emotional distress.
¶ 77 However, we’re not prepared today to adopt Restatement
(Third) section 47(b) wholesale. See RESTATEMENT (THIRD) OF
TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 47(b) (AM.
LAW INST. 2012). The rule we announce today deviates from
section 47(b) in two key ways. First, we retain our “severe”
emotional distress requirement—our limited adoption of section
47(b) does not include reducing this requirement to “serious”
emotional distress. Second, we’re not prepared to announce a
duty to refrain from causing severe emotional distress when there
wouldn’t otherwise be a traditional duty of reasonable care.
¶ 78 This new, limited emotional distress duty analysis
should still be completed in the same manner as a traditional duty
analysis—on a categorical level. Therefore, in order to establish
that a class of defendants would owe a limited emotional distress
duty to a class of plaintiffs, the following two-step analysis is
required: (1) Does the defendant owe a traditional duty of
reasonable care to the plaintiff?; and (2) Is the relationship,
activity, or undertaking of the type that warrants a special, limited
duty to refrain from causing severe emotional distress?
¶ 79 The first step—the traditional duty analysis—follows the
five-factor test we established in B.R. ex rel. Jeffs v. West, 2012 UT
11, ¶ 5, 275 P.3d 228. If such a traditional duty exists, then the
second step is to analyze whether a special, limited duty to refrain
from causing severe emotional distress is supported.
¶ 80 The second step itself requires a three-prong analysis:
(1) Does the relationship, activity, or undertaking “necessarily
implicate[] the plaintiff’s emotional well-being?” Hedgepeth v.
Whitman Walker Clinic, 22 A.3d 789, 810 (D.C. 2011); (2) Is there
“an especially likely risk” “that the defendant’s negligence in the
course of performing obligations pursuant to such relationship[,
activity,] or undertaking will result in [severe] emotional
distress?” Id. at 810–11, 815; and (3) Do general public policy
considerations warrant rejecting a limited emotional distress duty
where prongs one and two would otherwise find one to exist? See
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND
EMOTIONAL HARM § 47 cmt. d (“[A] court may decide that an
identified and articulated policy is weighty enough to require the
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withdrawal of liability.”). All three prongs must be satisfied for a
duty to refrain from causing severe emotional distress to exist.16
¶ 81 The first prong of this test ensures that the relationship,
activity, or undertaking is one that’s “fraught with the risk of
emotional harm” to the plaintiff. 17 Vincent v. DeVries, 72 A.3d 886,
893 (Vt. 2013) (citations omitted). This prong can be met only in
those very limited “situations where the emotional well-being of
others is at the core of, or is necessarily implicated by, the
[relationship, activity, or] undertaking.” Hedgepeth, 22 A.3d at 814.
It isn’t possible, nor would it be appropriate, for us to catalog all
relationships, activities, or undertakings that would meet this
requirement. Id. at 812. Instead, the analysis will have to be done
on a case-by-case basis, id., with the recognition that very few
relationships, activities, or undertakings can meet this high
threshold. 18
16 In this case, we’re only being asked to determine whether a
limited emotional distress duty should exist in the context of
affirmative acts. We leave open the questions of whether a limited
emotional distress duty could ever exist for omissions, and, if so,
whether our special legal relationship requirement for omissions
applies.
17 The relationships at issue in this analysis are different than
the “special legal relationships” addressed by the omissions prong
in Jeffs, 2012 UT 11, ¶¶ 6-9. Cf. Roberts I, 866 N.W.2d at 470 n.6
(“The cases involving the duty to act for another’s benefit as a
result of a special relationship are, therefore, inapposite.” (citation
omitted)). Thus, the existence of a “special legal relationship”
alone, without a showing that the relationship necessarily
implicates a plaintiff’s emotional well-being, won’t satisfy the first
prong of this test.
18 At first blush, it may seem this test is inconsistent with our
decision in Straub v. Fisher & Paykel Health Care, 1999 UT 102, 990
P.2d 384. It isn’t. In Straub, we rejected a nurse’s argument that
she was a direct victim of a product manufacturer’s breach of a
duty owed to her because she was operating the equipment that
caused a patient’s death. Id. ¶¶ 12, 15. Instead, we upheld our rule
that a plaintiff must be in the zone of danger or the defendant has
“not breach[ed] a duty of care owed to [the plaintiff].” Id. ¶ 15. We
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¶ 82 The second prong of this test recognizes that “the
imposition of a duty of care is not predicated on the existence of a
highly emotional relationship alone.” Miranda v. Said, 836 N.W.2d
8, 29 (Iowa 2013) (citation omitted). “Not all negligence is very
likely to cause severe emotional distress, and a duty of care to
protect against emotional harm does not arise unless negligence is
[especially] likely to cause severe emotional distress.” Id. at 30
(citations omitted). It’s necessary “that it [be] not only foreseeable,
but especially likely, that the defendant’s negligence will cause
[severe] emotional distress to the plaintiff.” See Hedgepeth, 22 A.3d
at 800. “[R]emoteness between acts of negligence and the plaintiff
[will] militate[] against a duty of care by making the emotional
harm less likely to result from the relationship.” Miranda, 836
N.W.2d at 30.
¶ 83 An objective standard must be used in considering
whether there’s an “especially likely risk” of negligence causing
emotional distress. Hedgepeth, 22 A.3d at 810–11 (“The likelihood
that the plaintiff would suffer serious emotional distress is
measured against an objective standard . . . .”). To recover, a
plaintiff must also establish that he or she did actually suffer
severe emotional distress that “manifested itself through severe
mental or physical symptoms.” Carlton v. Brown, 2014 UT 6, ¶ 58,
323 P.3d 571; see also supra ¶ 77 (maintaining the severe emotional
distress requirement); Harnicher v. Univ. of Utah Med. Ctr., 962 P.2d
noted that “the manufacturer cannot reasonably foresee the extent
to which persons who operate or administer these devices will
suffer emotional distress upon witnessing injury to patients when
they are not themselves placed at risk of injury.” Id.
The limited emotional distress duty test we announce today is
readily distinguishable from our holding in Straub and in no way
undercuts the rule we adopted in that case. Although there may
be limited exceptions, generally the relationship between product
manufacturer and product user doesn’t necessarily implicate the
emotional well-being of the product user. It’s only when the
relationship itself necessarily implicates the plaintiff’s emotional
well-being that a defendant may reasonably foresee the extent to
which a plaintiff will suffer emotional distress. The structure of
our limited emotional distress duty test ensures that this will be
the case before any duty arises.
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67, 71–72 (Utah 1998) (requiring objective proof of severe
emotional distress).
¶ 84 Finally, the third prong of the test recognizes that, as
with traditional duties, public policy may weigh against
recognizing a limited emotional distress duty. See Hedgepeth, 22
A.3d at 817–18; RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR
PHYSICAL AND EMOTIONAL HARM § 47 cmt. d; cf. Jeffs, 2012 UT 11,
¶ 32. These policy considerations should closely mirror those in a
traditional duty analysis. But special attention should be given to
public policy concerns that would be specially implicated by a
limited emotional distress duty, including the three main
principles our court has relied upon in deciding negligent
infliction of emotional distress cases, see supra ¶ 59.
¶ 85 In very narrow circumstances, the limited emotional
distress duty test we announce today extends liability for
negligent infliction of emotional distress beyond the
zone-of-danger test we generally employ. But this limited
emotional distress duty doesn’t replace or otherwise diminish our
zone-of-danger requirements for recovery under that theory.
Instead, we merely recognize that, “in addition to permitting
recovery based on the ‘zone of physical danger’ rule,” the law
allows for recovery based on a defendant’s duty to refrain from
affirmatively causing a plaintiff severe emotional distress while
engaging in certain relationships, activities, or undertakings.
Hedgepeth, 22 A.3d at 800.
¶ 86 This limited emotional distress duty shouldn’t be
viewed as an expansive mechanism for recovery. Any duty
created under this analysis is limited to a duty to refrain from
causing severe emotional distress. And, if a defendant breaches
that duty, a defendant will only be liable for damages for the
severe emotional harm that “manifest[s] itself through severe
mental or physical symptoms.” Carlton, 2014 UT 6, ¶ 58. This duty
“should not be used to dilute or modify the requirements of”
other torts that “protect specific aspects of emotional tranquility.”
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND
EMOTIONAL HARM § 47 cmt. o; see also id. ch. 8, scope note
(Restatement (Third) sections 46–48 don’t cover liability for “[o]ther
tort claims, such as assault, invasion of privacy, and interference
with consortium [that] protect distinct aspects of the interest in
emotional tranquility.”); id. § 46 cmt. m. (“Protection of the
parents’ interest in their relationship with their child, i.e.,
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consortium, is not addressed in this Chapter or Restatement.”
(citation omitted)).
¶ 87 As discussed in Part II.B above, we have acknowledged
three main principles that have guided our court in determining
when recovery is appropriate for negligent infliction of emotional
distress: (1) “the need to ensure the genuineness of claims, both in
their existence and in causation;” (2) the importance of
“reasonable limitations on recovery, both in terms of the potential
class of victims and the severity of the harm required;” and (3) the
requirement that plaintiffs “only be allowed to recover for a
breach of a duty owed to them.” Supra ¶ 59. The new limited
emotional distress duty three-prong test we adopt, see supra ¶ 80,
fits within these principles and each individual limited emotional
distress duty analysis can further ensure compliance.
¶ 88 First, we ensure the genuineness of claims in the same
way as zone-of-danger cases by requiring similar proof—objective
evidence that the plaintiff has suffered severe emotional distress.
See Carlton, 2014 UT 6, ¶ 57 (requiring a plaintiff to “prove
[emotional] distress by means of severe physical or mental
manifestations” (citation omitted)); Harnicher, 962 P.2d at 71–72
(noting that “practicality demands that the standard of proof in
such cases be more than merely subjective” and providing that the
“emotional distress suffered must be severe” based on a
reasonable person standard (citations omitted)). The first two
prongs of our test also support genuineness by limiting the duty
to those relationships, activities, or undertakings that impact a
person’s core emotional well-being and where there’s an
especially likely risk that negligence would cause severe
emotional distress.
¶ 89 Second, a limited emotional distress duty provides
reasonable limitations on recovery. A main policy concern with
bystander recovery is that “[a] defendant has no way of knowing
the number and proximity of bystanders to any given accident
caused by his or her negligence.” Hansen v. Sea Ray Boats, Inc., 830
P.2d 236, 242 (Utah 1992). And a defendant lacks the techniques to
“determin[e] or foresee[] what types of events might cause
emotional injury to potential plaintiffs near an accident scene.” Id.
at 241. Our first prong ensures that a duty only extends to a
plaintiff in relationships, activities, or undertakings where a
plaintiff’s emotional well-being is implicated at the core of such
conduct. See Hedgepeth, 22 A.3d at 812 (This rule “contains a
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self-limiting principle based on the nature of the defendant’s
relationship with, or undertaking to, the plaintiff.”). The second
prong guarantees that a limited emotional distress duty will only
exist where it’s not only foreseeable, but also especially likely, that
the defendant’s negligence will cause the plaintiff severe
emotional distress. And recovery will still only be allowed for
objectively verifiable severe emotional distress.
¶ 90 Finally, a limited emotional distress duty only allows
plaintiffs to recover for a harm that’s personal to them and doesn’t
allow for vicarious recovery. The limited emotional distress duty
analysis is centered on the category of plaintiffs. The first prong
requires an analysis of whether a category of defendants—
engaged in the specific relationship, activity, or undertaking at
issue—owe a duty to plaintiffs whose emotional well-being is
necessarily implicated by the defendants’ conduct. When such a
duty arises, the duty is owed to the plaintiff, not to a third party.
And it must be the duty owed directly to the plaintiff that’s
breached.
IV. ADOPTING A LIMITED DUTY TO REFRAIN FROM
RECKLESSLY INFLICTING SEVERE EMOTIONAL DISTRESS
ON A MINOR CHILD’S NONPATIENT PARENTS BY GIVING
RISE TO FALSE MEMORIES OR ALLEGATIONS OF
CHILDHOOD SEXUAL ABUSE BY THE PARENT
¶ 91 Because we have determined that treating therapists owe
a limited traditional duty, see supra ¶ 40, we must next determine
whether treating a nonpatient parent’s child for potential sexual
abuse by that parent is a type of relationship, activity, or
undertaking that warrants a duty to refrain from causing severe
emotional distress. As set out above, this determination requires a
three-prong analysis:
(1) Does the relationship, activity, or undertaking
“necessarily implicate the plaintiff’s emotional
well-being?”; (2) Is there “an especially likely risk”
“that the defendant’s negligence in the course of
performing obligations pursuant to such
relationship[, activity,] or undertaking will result in
[severe] emotional distress?”; and (3) Do general
public policy considerations warrant rejecting a
limited emotional distress duty where prongs one
and two would otherwise find one to exist?
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Supra ¶ 80 (alterations in original) (first quoting Hedgepeth v.
Whitman Walker Clinic, 22 A.3d 789, 810–11, 815 (D.C. 2011); then
citing RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND
EMOTIONAL HARM § 47 cmt. d (AM. LAW INST. 2012).
¶ 92 Based on the results of this three-prong test, we conclude
that a limited emotional distress duty exists to refrain from
recklessly inflicting emotional distress by causing false memories
or fabricated accusations of sexual abuse committed by the
nonpatient parent.
A. Necessarily Implicates Emotional Well-Being
¶ 93 The first issue that we must decide is whether a treating
therapist’s counseling of a minor child for potential sexual abuse
constitutes a relationship, activity, or undertaking that necessarily
implicates the nonpatient parent’s emotional well-being.
¶ 94 Our research hasn’t turned up any cases that answer this
question when engaging in a purely emotional duty analysis. But
many courts have found that a treating therapist owes a duty to
nonpatient parents, recognizing that a child’s parent “is not a
‘third party’ in the accepted sense.” Webb v. Neuroeducation Inc.,
P.C., 88 P.3d 417, 423 (Wash. Ct. App. 2004) (citation omitted); see
also Roberts I, 866 N.W.2d at 469 (“The parent-child relationship is
so fundamental to human relations that a parent cannot be
equated with a third party in the ordinary sense.” (citation
omitted)); supra ¶ 26 (discussing the importance of the
parent-child relationship).
¶ 95 “A diagnosis does not by itself implicate any particular
person as the perpetrator of the abuse.” Roberts I, 866 N.W.2d at
469. But, after a determination has been made “that sexual abuse
[did] in fact occur[], . . . a course of action is thereafter embarked
upon by the [therapist] [that] is intended to, and necessarily does,
affect both the child and his or her abuser, especially where a
family relationship is involved.” Caryl S. v. Child & Adolescent
Treatment Servs., Inc., 614 N.Y.S.2d 661, 666 (N.Y. Sup. Ct. 1994)
(emphasis added). And, importantly, “a patient’s parents are
within the class of persons most likely to be implicated by the
creation of a false memory.” Roberts I, 866 N.W.2d at 469.
¶ 96 We agree with these courts. When a therapist is treating
a child for potential sexual abuse, the patient’s parents are not
truly a third party in a traditional sense. The treating therapist
“has a substantial connection to the persons most likely to be
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harmed by the implantation of the false memory: the patient’s
parents.” Roberts I, 866 N.W.2d at 469 (citation omitted).
Moreover, the therapist is also engaging in a potentially reckless
activity: “elect[ing] to treat a patient using techniques that might
give rise to false memories in the patient.” Id.
¶ 97 This activity and limited relationship between
nonpatient parent and therapist necessarily implicates the
parent’s emotional well-being. Allegations of sexual abuse by a
parent “strike[] at the core of a parent’s basic emotional security.”
Id. (citation omitted). But, this activity and limited relationship
should only give rise to a likewise limited duty. See id. at 473.
Thus, even though we conclude below that the second and third
prongs of our test have been satisfied, we believe that the duty
should be limited to refraining from causing false memories or
fabricated allegations of sexual abuse committed by the plaintiff
nonpatient parent. Cf. id. at 473.
¶ 98 Because both the activity and limited relationship each
necessarily implicates the parent’s emotional well-being, the first
prong has been satisfied in the analysis of whether a duty exists to
refrain from carelessly inflicting severe emotional distress by
causing false memories or fabricated accusations of sexual abuse
committed by the nonpatient parent.
B. Especially Likely That Negligence Would Cause Severe Emotional
Distress
¶ 99 Next we must determine, using an objective standard,
whether it is especially likely that a therapist’s negligence would
cause severe emotional distress. See supra ¶¶ 82–83. Because we
limited our analysis in the first prong solely to refraining from
giving rise to false memories or fabricated allegations of sexual
abuse, our analysis in this prong will focus on whether the breach
of that limited duty would be especially likely to cause severe
emotional distress to the nonpatient parent. 19
19 Situations where there’s solely a misdiagnosis of sexual
abuse (without implicating the nonpatient parent) would not fall
under this category. See Roberts I, 866 N.W.2d at 469 (“In the
absence of evidence that the professional contributed to or caused
the formation of a false memory or otherwise encouraged the
patient to falsely implicate his or her parents, the mere diagnosis
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¶ 100 A patient’s parents are the people most often accused
when there are implanted memories of sexual abuse in children.
Roberts I, 866 N.W.2d at 469. In cases where a parent is falsely
accused of sexual abuse, it is especially likely, if not practically
inevitable, that the parent will suffer severe emotional distress.
“‘Discovery’ of past sexual abuse necessarily entails the probable
destruction of the patient’s relationship with that parent.” Trear v.
Sills, 82 Cal. Rptr. 2d 281, 288 (Cal Ct. App. 1999). What’s more,
“[i]t is generally foreseeable that emotional distress would
accompany the prolonged separation of a parent and child.”
Miranda v. Said, 836 N.W.2d 8, 32 (Iowa 2013) (citations omitted). 20
¶ 101 Moreover, “[i]t is indisputable that being labeled a
child abuser [is] one of the most loathsome labels in society and
most often results in grave physical, emotional, professional, and
personal ramifications.” Hungerford v. Jones, 722 A.2d 478, 480
(N.H. 1998) (second alteration in original) (emphases added)
(citation omitted) (internal quotation marks omitted). “[T]hose
accused of sexual assault feel the pain and stigma associated with
the accusations.” Sawyer v. Midelfort, 595 N.W.2d 423, 431 (Wis.
1999) (citation omitted). “It takes very little imagination to
recognize the damning horror that must ensue to a parent falsely
accused of child molestation.” Trear, 82 Cal. Rptr. 2d at 285
(citation omitted). It’s especially likely that the falsely accused
parent will suffer severe emotional distress as a result of these
social consequences.
of childhood sexual abuse as the underlying cause of a mental
disorder does not result in a direct foreseeable harm to the
patient’s parents.”)
20 This limited emotional distress duty won’t give rise to
damages for loss of consortium. See UTAH CODE § 30-2-11
(allowing loss of consortium claim for spouse but requiring
specific injuries to a spouse and noting that loss of consortium is a
derivative claim); Benda v. Roman Catholic Bishop of Salt Lake City,
2016 UT 37, ¶ 20, 384 P.3d 207 (recognizing a loss of consortium
claim for minor child but requiring the same injury threshold as
Utah Code section 30-2-11 and noting that the claim is a derivative
claim). But severe emotional distress that arises from the
separation of the parent and child is compensable. Supra ¶ 86.
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Opinion of the Court
¶ 102 Overall, it’s especially likely that a therapist’s
negligence, resulting in a minor child having false memories of
sexual abuse by the parent, will cause severe emotional distress in
the parent. Therefore, the second prong in the analysis of whether
a duty exists to refrain from carelessly inflicting severe emotional
distress by causing false memories or fabricated accusations of
sexual abuse committed by the nonpatient parent has been
satisfied.
C. Public Policy Considerations
¶ 103 The final issue is whether public policy considerations
weigh against recognizing a limited emotional distress duty. Our
analysis of the public policy considerations will closely mirror the
analysis in the fifth Jeffs factor, with special consideration to any
public policy concerns specifically implicated by a limited
emotional distress duty, in conjunction with the three overarching
policy concerns that frame our negligent infliction of emotional
distress case law. See supra ¶ 84.
¶ 104 As set out in Part I.B.3, the general policy
considerations don’t warrant a complete abdication of a
traditional duty in this case. However, the policy considerations
do warrant limiting the traditional duty to refraining from
recklessly causing false memories or fabricated allegations of
sexual abuse. Supra ¶ 32. Other than the potential that a duty
would “chill” a therapist’s treatment of the child, none of these
policy considerations—the social utility of treating and
eradicating sexual abuse, the notion that a duty would place the
interests of third parties above the interests of the child, the
confidentiality and openness of the therapist-patient relationship,
the inexactness of therapy, and the policy behind the reporting
immunity statute—requires special consideration when used to
implicate an emotional duty. Just as in the traditional duty
context, these policy considerations don’t support completely
eliminating an emotional duty.
¶ 105 As even Mr. Mower acknowledges, therapists are less
likely to cause physical injuries than emotional injuries. Logically,
a “chilling” effect on the therapy is much more likely to occur if a
therapist is burdened with potential liability for a third party’s
emotional damages. But the limited emotional distress duty that
we find in this case won’t punish a therapist who comports with
the standards required by the practice of his or her profession:
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Opinion of the Court
Importantly, it is not just the nature of the
relationship that supports emotional distress
damages, but the high likelihood of such damages
from negligent acts engaged in by the [therapist].
The duty arises when those acts are illegitimate and,
if pursued, are especially likely to produce serious
emotional harm. Therefore, the standard is not one
that threatens [therapy], but is consistent with the
ideals that protect the integrity of [therapy].
Miranda, 836 N.W.2d at 33 (discussing this concept in regards to
the practice of law).
¶ 106 While the policy considerations don’t support
eliminating an emotional duty, they do require imposing the same
limitations on the emotional duty as they do on the traditional
duty. Thus, that determination doesn’t end our analysis. We must
still consider whether any of the three overarching policy
concerns from our negligent infliction of emotional distress case
law mandate a different result.
¶ 107 One concern is the genuineness of claims, both in terms
of their existence and in causation. Supra ¶ 59. But we have no
doubt about the genuineness of the claims that will arise under
this duty. “We are quite confident that negligent treatment which
encourages false accusations of sexual abuse is highly culpable for
the resulting injury.” Sawyer, 595 N.W.2d at 433. Moreover, “we
doubt that there is a significant possibility of fraud when a claim
is based upon accusations of abuse, particularly in light of the
extraordinary stigma our society places upon those accused of
sexually abusing a child.” Id. at 434. And a plaintiff will still be
required to offer objective evidence of the severe emotional
distress suffered. Supra ¶ 88.
¶ 108 Another concern is setting “reasonable limitations on
recovery, both in terms of the potential class of victims and the
severity of the harm required.” Supra ¶ 59. The potential class of
victims is limited because a claim “may be brought only by those
who have been wrongfully accused of sexually abusing their
[child], not by the unknown numbers of individuals whose
relationship with the patient is negatively affected by the
[reckless] therapy.” See Sawyer, 595 N.W.2d at 434. And the
severity of the harm hasn’t changed: the plaintiff must still
establish that he or she has suffered severe emotional distress.
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Opinion of the Court
Supra ¶ 77. Thus, the second general policy concern doesn’t
support eliminating a duty.
¶ 109 The final concern we address is whether plaintiffs
should only be allowed to recover for a breach of a duty owed to
them. Supra ¶ 59. The duty established here is owed not to the
child, but to the parent directly. Supra ¶ 90. Thus, the parent will
be recovering for a duty owed directly to him or her, satisfying
this policy concern.
¶ 110 For these reasons, the special policy considerations
don’t warrant removing liability. Thus, we conclude that a
treating therapist has a duty to a minor child’s parents to refrain
from recklessly giving rise to false memories or fabricated
allegations of sexual abuse committed by the plaintiff nonpatient
parent through affirmative acts.
¶ 111 We recognize that this conclusion is contrary to some
jurisdictions that preclude all liability for therapists who
misdiagnose or give rise to false memories or fabricated
allegations of childhood sexual abuse. See, e.g., Trear, 82 Cal. Rptr.
2d at 283 (holding that a therapist has no duty to the parent of an
adult patient for allegedly false recovered memories of sexual
abuse); Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1171 (Pa.
2000) (finding no “duty of care beyond that owed to the patient”);
Flanders v. Cooper, 706 A.2d 589, 589, 592 (Me. 1998) (concluding
that a therapist owed no duty of care to the father of a child to
avoid causing false memories of sexual abuse); Zamstein v.
Marvasti, 692 A.2d 781, 789 (Conn. 1997) (refusing to recognize a
cause of action against a therapist whose incorrect evaluations led
to false charges of sexual assault).
¶ 112 But other jurisdictions have come to a similar
conclusion that a therapist may be held liable. See, e.g., Roberts I,
866 N.W.2d at 473 (“{A] mental health professional has a limited
duty to his or her patient’s parents; namely, a duty to ensure that
the professional’s treatment does not give rise to false memories
of childhood sexual abuse.”); Sawyer, 595 N.W.2d at 430, 436
(imposing liability on a therapist for “damages stemming from
injuries caused by a patient’s false memories of abuse” (citation
omitted)); Hungerford, 722 A.2d at 482 (recognizing “a duty of care
on therapists who elect to publicize accusations of sexual abuse
against parents, or who encourage patients to do so”); Caryl S.,
614 N.Y.S.2d at 666 (“[W]hen a professional becomes involved in a
case where child sexual abuse is suspected, care must be taken in
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investigating and evaluating such a claim and in reaching the
conclusion that such abuse did take place.”). The jurisdictions that
have recognized liability haven’t created significant limitations on
the damages recoverable. But see Sawyer, 595 N.W.2d at 431, 434
(noting that “[t]he harm arising from the loss of a daughters’ [sic]
companionship is different than the harm that arises from
accusations of sexual assault” and finding that those claims are
“not tied to personal relationships, but rather to accusations of
abuse”).
¶ 113 The approach we’ve taken today serves as a middle
ground between the two: we recognize a limited duty to refrain
from recklessly causing a nonpatient parent physical harm to his
or her body or property or severe emotional distress by giving rise
to false memories or fabricated allegations of sexual abuse
committed by that parent through affirmative acts when treating
the parent’s minor child. 21 Our approach is consistent with our
case law on duty, negligent infliction of emotional distress, and
public policy.
CONCLUSION
¶ 114 The question before us today is “whether a [treating
therapist] has the unfettered right to treat his or her patient using
techniques that might cause the patient to develop a false memory
[or allegations] of sexual abuse.” Roberts I, 866 N.W.2d at 472. We
21 Although we’ve clearly established when a plaintiff may and
may not recover for negligent infliction of emotional distress,
we’ve yet to consider whether this claim is truly a separate cause
of action that must be independently pled, or whether it is a
species of negligence that can be pled as part of such a claim.
Because Mr. Mower has only pled medical malpractice (a
negligence claim) and not a separate negligent infliction of
emotional distress claim, we recognize that he might be unable to
recover under an expanded duty for emotional distress. However,
we’re presented with a limited task—determining if the district
court erred in holding that no duty existed. We leave it to the
district court to decide in the first instance if Mr. Mower must
plead a claim for negligent infliction of emotional distress to
recover for such a duty and, if so, if Mr. Mower should be
permitted to amend his complaint.
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Opinion of the Court
conclude that they don’t. Treating therapists are obligated to
conform to a standard of care when treating their patients. A
therapist further owes a duty to a minor patient’s parents to
refrain from affirmative acts that recklessly violate the standard of
care in a manner that gives rise to false memories or false
allegations of sexual abuse committed by the plaintiff nonpatient
parent. If the therapist breaches that duty in a way that causes a
parent to suffer physical injury, property damage, or severe
emotional distress that manifests itself through severe mental or
physical symptoms, the therapist may be liable for those damages.
The matter is remanded to the district court for further
proceedings consistent with this opinion.
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