Erickson v. Canyons Sch. Dist.

Decision Date11 June 2020
Docket NumberNo. 20190376-CA,20190376-CA
Citation467 P.3d 917
CourtUtah Court of Appeals
Parties Juel ERICKSON, Appellee, v. CANYONS SCHOOL DISTRICT, Appellant.

Sean D. Reyes, Salt Lake City, and Joshua D. Davidson, Attorneys for Appellant

Wesley Felix and Brenda Weinberg, Salt Lake City, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.


ORME, Judge:

¶1 Canyons School District (the School District) seeks interlocutory review of the district court's denial of its motion to dismiss Juel Erickson's complaint against it. The court denied the motion because it concluded that it was too early to determine whether Erickson's injuries resulted from a battery, which determination would have necessitated dismissal of the case on governmental immunity grounds. Because there may be facts that Erickson could prove establishing that the student who injured her lacked the necessary intent for his action to constitute battery, we affirm.


¶2 Erickson was a student at a high school within the School District's boundaries. On February 24, 2017, Erickson attended a school assembly held in the high school's gym. Before the assembly, a supervisor confiscated a home-made flag, fastened to a pole, from junior class officers and placed it on the east side of the gym. When a student retrieved the flagpole, the supervisor instructed another student to reconfiscate it. That student placed the confiscated flagpole underneath the bleachers, from where yet another student (Student) retrieved it. Student then climbed to the top of the bleachers and threw the flagpole into the crowd of students below, striking Erickson in the head and knocking her unconscious. No high school employee called an ambulance or provided Erickson with any medical care. Erickson thereafter "suffer[ed] from neck injuries and post-concussive symptoms


¶3 In 2019, Erickson filed a complaint against the School District, the high school, the supervisor, and the State of Utah. The complaint alleged negligence, gross negligence, and vicarious liability against the defendants for "failing to secure the Flag Pole and keep other students from reaching it, failing to adequately supervise their students, and failing to provide medical assistance upon injury."

¶4 The defendants moved to dismiss Erickson's complaint pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure, arguing that under the Governmental Immunity Act of Utah, see Utah Code Ann. §§ 63G-7-101 to -904 (LexisNexis 2019),2 "a high school cannot be named as a party in a lawsuit; [Erickson] cannot pursue an action individually against [the supervisor], an employee of [the School District]"; Erickson "has asserted no facts to support a claim against the State of Utah"; and—the issue relevant to the current appeal—the School District could not be sued because "governmental entities are immunized against claims arising from battery." Erickson did not oppose the motion as concerned the supervisor and the State.3 But in opposing the motion as to the School District, Erickson argued that dismissal was improper because the tort of battery requires that the actor "intend the action and its harmful or offensive consequences," and there still remained "a question of fact as to what [Student] intended when throwing the flag pole into the crowd of students." Analogizing to an example where "a person throws a football to a friend and that football strikes a bystander," she argued that "it is more likely than not that [Student] intended that the flag pole would be caught by his friends who were urging him to throw it to them," and "[i]f these are indeed the facts, then [Student's] action does not constitute battery."

¶5 The district court denied the motion to dismiss "on the grounds that based upon the inferences that favor [Erickson], it is too early in the case to grant the motion on the issue of battery." The School District then petitioned for permission to appeal from an interlocutory order, see Utah R. App. P. 5(a), which the Utah Supreme Court transferred to this court for resolution, see id. R. 42. We granted the petition.


¶6 The School District challenges the district court's denial of its motion to dismiss. "The propriety of a trial court's decision to grant or deny a motion to dismiss under rule 12(b)(6) [of the Utah Rules of Civil Procedure] is a question of law that we review for correctness." Torgerson v. Talbot , 2017 UT App 231, ¶ 7, 414 P.3d 504 (quotation simplified). Dismissal of a complaint is proper "only if it is clear from the allegations that the [plaintiff] would not be entitled to relief under the set of facts alleged or under any facts it could prove to support its claim ." Id. (emphasis added). Accordingly, on review "we accept all facts alleged as true, and indulge all reasonable inferences in favor of the [plaintiff]." Id. (quotation simplified).


¶7 The Governmental Immunity Act of Utah waives governmental immunity "as to any injury proximately caused by a negligent act or omission of an employee committed within the scope of employment," Utah Code Ann. § 63G-7-301(2)(i) (LexisNexis 2019), but exempts from this waiver injuries that "arise[ ] out of or in connection with, or result[ ] from," among other things, "battery," id. § 63G-7-201(4)(b).4 See Sanders v. Leavitt , 2001 UT 78, ¶ 29, 37 P.3d 1052 ("[I]mmunity is retained under the Utah Governmental Immunity Act if an assault or battery is involved, regardless of who the tortfeasor is, and even if the assault or battery occurs as the result of the negligence of the state or state agent.").

¶8 The intentional tort of battery "was designed to protect people from unacceptable invasions of bodily integrity." Wagner v. State , 2005 UT 54, ¶ 57, 122 P.3d 599. See 1 Dan B. Dobbs et al., The Law of Torts § 33, at 82 (2d ed. 2011) [hereinafter Dobbs] ("Battery today vindicates the plaintiff's rights of autonomy and self-determination, her right to decide for herself how her body will be treated by others, and to exclude their invasions as a matter of personal preference, whether physical harm is done or not."). For purposes of defining the elements of battery, Utah has adopted the Second Restatement of Torts, see Wagner , 2005 UT 54, ¶ 16, 122 P.3d 599, which provides that a person commits battery against another " ‘if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results,’ " id. (quoting Restatement (Second) of Torts § 13 (Am. Law Inst. 1965) ). In simpler terms, for a contact to constitute battery, it must be (1) deliberately made and (2) harmful or offensive in a legal sense. Id. ¶ 19.

¶9 At the complaint stage of this litigation, the question is whether Erickson could prove a set of facts consistent with her complaint that would preclude dismissal on governmental immunity grounds. In other words, mindful of the facts alleged in the complaint, we inquire whether there is at least one scenario in which Student did not batter Erickson. If the answer is in the affirmative, the district court correctly denied the School District's rule 12(b)(6) motion to dismiss. See America West Bank Members, LC v. State , 2014 UT 49, ¶ 13, 342 P.3d 224 ("A dismissal is a severe measure and should be granted by the trial court only if it is clear that a party is not entitled to relief under any state of facts which could be proved in support of its claim.") (quotation simplified). Cf. Sanjuan v. American Board of Psychiatry & Neurology, Inc. , 40 F.3d 247, 251 (7th Cir. 1994) ("One pleads a ‘claim for relief’ by briefly describing the events. At this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint.").

¶10 Here, the second prong of the battery inquiry—that the contact is harmful or offensive at law—is readily met, even at this early stage. It is uncontested and, indeed, inarguable that a strike to the head by a flagpole is harmful because "no reasonable person would consent" to such a contact. Wagner , 2005 UT 54, ¶ 51, 122 P.3d 599. See id. ("A harmful or offensive contact is simply one to which the recipient of the contact has not consented either directly or by implication."). The resolution of this appeal therefore turns on the first prong—whether a provable set of facts exists under which Student did not intend for the flagpole to come into contact with Erickson. Because we agree with Erickson that at least one scenario exists in which Student lacked the requisite intent, namely where Student threw the flagpole intending for it to be caught by friends while not substantially certain that the flagpole would strike an unsuspecting student, the district court properly denied the School District's 12(b)(6) motion to dismiss.5

¶11 " ‘The word ‘intent’ is used ... to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.’ " Id. ¶ 22 (quoting Restatement (Second) of Torts § 8A ) (emphasis omitted) (emphasis added). See also id. ¶ 26 (stating that "[i]t is the consequential contact with the other person," not the act or movement itself, "that the actor must either intend or be substantially certain would result"). Whether the actor intended the contact to be harmful or offend is immaterial. Rather, the focus is on whether the actor intended to make a contact that is harmful or offensive at law . Id. ¶ 29. Because the focus of the intent analysis is on whether the actor desired the consequential contact or knew that it was substantially certain to result, it is necessarily a subjective inquiry, Dobbs § 29, at 75, which is inherently fact-intensive, cf. Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co. , 2019...

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