909 F.Supp. 1393 (D.Utah 1995), Civ. 94-C-1097, Den Hartog v. Wasatch Academy

Docket Nº:Civ. 94-C-1097
Citation:909 F.Supp. 1393
Party Name:Den Hartog v. Wasatch Academy
Case Date:December 04, 1995
Court:United States District Courts, 10th Circuit, District of Utah

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909 F.Supp. 1393 (D.Utah 1995)

Howard DEN HARTOG, Plaintiff,


WASATCH ACADEMY, and Joseph Loftin, Defendants.

Civ. No. 94-C-1097W.

United States District Court, D. Utah, Central Division.

Dec. 4, 1995

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Stephen W. Cook, Salt Lake City, UT, for plaintiff.

Elizabeth T. Dunning, Carolyn Cox, Brett Del Porto, Watkiss, Dunning & Watkiss, Salt Lake City, UT, for defendants.


WINDER, Chief Judge.

This matter is before the court on three related motions: (1) Plaintiff Howard Den Hartog's ("Den Hartog") motion for partial summary judgment; (2) Den Hartog's motion in limine to exclude certain evidence at trial; and (3) Defendants Wasatch Academy's ("Wasatch") and Joseph Loftin's ("Loftin") motion for summary judgment. The court heard oral argument on all of these matters on November 21, 1995. At the hearing Den Hartog was personally present and represented by Stephen W. Cook, while Defendants were represented by Elizabeth T. Dunning, Carolyn Cox, and Brett Del Porto.

Prior to the hearing, the court considered carefully the memoranda and other materials submitted by the parties. The court had also reviewed a number of the authorities cited by the parties. Now having further considered the law and facts related to this motion, and being fully advised, the court enters the following memorandum decision and order.


The undisputed facts, 1 as set forth by the parties, reveal the following:

Defendant Wasatch is a private boarding school for students in 9th through 12th grades, located in Mt. Pleasant, Utah. Mt. Pleasant is a small town, consisting of less than 2 1/2 square miles and approximately 2,000 residents. Defendant Loftin has served as headmaster for Wasatch from 1988 to the present and during the times at issue, Loftin lived on campus with his wife and three children.

Plaintiff Den Hartog was employed by Wasatch Academy from 1968, with a few interruptions, until June 1994 when he was terminated. Den Hartog worked in the Buildings and Grounds Department, and most recently as a faculty member. Den Hartog was employed by Wasatch pursuant to a series of one-year contracts. Den Hartog's 1993-94 contract provided that Wasatch had "the right to terminate this contract immediately for cause, including but not limited to incompetence, cruelty, negligence, immorality and violation of any other covenants of the agreement." The contract further provides that:

Said EMPLOYEE, in addition, agrees to submit to his proportional part of the internal discipline of the ACADEMY, including compliance with directions given him by the Headmaster or his designated representatives,

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and to comply with all by-laws and policies of its Board of Trustees. Said EMPLOYEE further agrees to comply with all reasonable requests of superiors and to comply with policies and rules adopted by ACADEMY during term of employment and to carry out the spirit and intent of such policies and regulations....

Wasatch's Faculty Handbook states that "[t]ermination or a decision not to offer a contract for the next school year must be based either on a change in the employment requirements of Wasatch Academy, substandard performance or cause as specified in individual contracts." The Handbook further provides that in "[e]ach case of termination or refusal of contracts for substandard performance or specific cause as outlined in individual contracts, must be substantiated in writing specifying the reasons for the action taken, previous response by the employee in question." Then, the "employee who has been terminated or refused a contract for substandard performance or cause, may appeal, with the full knowledge of the Headmaster, to the President of the Board of Trustees."

Because Wasatch has a policy--with a few exceptions--of requiring full-time faculty to live on campus, Den Hartog lived on the Wasatch campus with his wife and four children during the times that he was employed by the school. Den Hartog's youngest child is Nathaniel Den Hartog ("Nathaniel") who was born in December 1971. Nathaniel lived with his parents until he graduated from Wasatch in June of 1990, at which time Nathaniel went away to college from fall 1990 until spring 1991. However, Nathaniel did not return to college the next year and instead lived on the Wasatch campus with his parents.

During the time that Nathaniel was living with his parents from the summer of 1991 until the summer of 1992, he engaged in a number of unusual acts: (1) he told people that he was going to Hawaii to see Santa Claus; (2) he chased a fire truck down the street, calling out "Santa, Santa"; and (3) he borrowed $1,000 to use as a down payment for a $100,000 piece of land and told people that God instructed him to build a school on the land. Loftin was aware of these actions by Nathaniel. At this time, Wasatch took no adverse employment action against Den Hartog.

In July 1992 Den Hartog took Nathaniel to a psychologist who diagnosed Nathaniel as having bipolar disorder and recommended that he be hospitalized and treated. Nathaniel was admitted to a hospital on July 20, 1992, and during his ten-day stay was confirmed as having bipolar disorder. He was treated with lithium and discharged on July 30, 1992, to his parents' home on the Wasatch campus. Loftin and other Wasatch employees were aware of Nathaniel's diagnosis and continuing treatment. Rather than taking adverse action against either Nathaniel or Den Hartog, Loftin hired Nathaniel to do part-time work on campus including yard work, painting, and assisting in the day care center.

Then, on March 12, 1993, Nathaniel took the Loftins' 16-year old son to Provo and attempted to admit him to a psychiatric hospital without the Loftins' knowledge. When a hospital employee called Joseph Loftin, he went to Provo to pick up his son. Loftin, of course, was personally aware of this event. Two days later, Nathaniel called the Loftin home several times, asking for the Loftins' son. Nathaniel told Loftin that he would slit his own wrists if Loftin did not put his son on the phone. Loftin, in response, called the police and called Nathaniel's counselor. Four days later, the Loftins found a number of messages from Nathaniel on their answering machine. One of these messages made references concerning the Loftins' four-year old daughter. Loftin called the police who listened to the messages and told Loftin to take the threats seriously. The police also called Nathaniel's doctor. The doctor talked to Loftin about the messages, told Loftin to be concerned, and characterized the messages as "agitated, rude and threatening."

After this incident and at the request of Nathaniel's doctor, Loftin signed an application for Nathaniel's involuntary commitment to an institution. State judge, Cullen Christensen, determined that Nathaniel posed "an immediate danger of physical injury" to himself and others, and ordered his commitment

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to the custody of the Utah State Department of Public Health, Division of Mental Health for six months. Loftin was aware of the commitment hearing and that the judge had determined Nathaniel dangerous. After Nathaniel was hospitalized, Wasatch paid for an apartment in Salt Lake City for Nathaniel and his mother to live in when Nathaniel was released so he could receive outpatient treatment. Wasatch contends that it "offered" this solution and that the Den Hartogs "accepted." Den Hartog maintains that this solution was "ordered" or "requested" by Wasatch. 2

Following Nathaniel's hospitalization, on April 1, 1993, Den Hartog and his wife Esther attended a meeting with Loftin and others to discuss the situation with Nathaniel. The Den Hartogs recorded the meeting. At the meeting Loftin repeatedly told the Den Hartogs that he did not want Nathaniel on campus because of his threatening behavior. Esther Den Hartog responded, in the presence of her husband, that "if we lived here [on campus] and we were having a Christmas celebration with our family we would not say, Nathaniel, you cannot come home because Joe Loftin says you cannot be here." Den Hartog did not object to this statement.

Prior to Nathaniel's release from the hospital, Wasatch contends that the Den Hartogs agreed to not allow Nathaniel to come to Mt. Pleasant or on campus. The Den Hartogs maintain that Wasatch merely made such a request, and do not admit that they agreed. 3 Nathaniel was released from the hospital on April 19, 1993. Within a week of his release, Nathaniel visited Mt. Pleasant and came on campus. Jim Loughlin and other members of the Wasatch Board of Trustees received calls from staff and faculty who were concerned about Nathaniel's presence. Loftin became concerned that the Den Hartogs would not cooperate in keeping Nathaniel off campus, and that as long as Den Hartog worked and lived on campus Nathaniel would continue visiting. As a result, in May 1993, Wasatch decided to assign Den Hartog to write the school history from Wasatch's development office in Salt Lake City for the 1993-94 school year. Den Hartog received his full salary and a living allowance to pay for a home, utilities, and food.

Before the Den Hartogs moved to Salt Lake City, on about June 1, 1993, Den Hartog's wife Esther brought Nathaniel to Wasatch to help pack for the move. Esther and Nathaniel went to the campus dining room for lunch. Loftin saw them and told Esther that Nathaniel would have to leave. Loftin left to call Jim Loughlin, but Esther and Nathaniel did not leave. Then Richard...

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