Graves v. N. E. Servs., Inc.

Decision Date30 January 2015
Docket NumberNo. 20121012.,20121012.
Citation779 Utah Adv. Rep. 82
PartiesRachel GRAVES and Dustin Russell, a married couple, individually and as Conservators for and on behalf of A.R., a minor child, Appellees, v. NORTH EASTERN SERVICES, INC., a Utah corporation and North Eastern Services–Lakeside, Inc., a Utah corporation, Appellants.
CourtUtah Supreme Court


Affirmed in part and reversed in part.

Nehring, C.J., concurred in part, dissented in part, and filed opinion in which Durham, J., joined.

[345 P.3d 621]

D. Rand Henderson, Providence, Salt Lake City, Shaun L. Peck, Craig Winder, Logan, for appellees.

Gregory J. Sanders, Patrick C. Burt, Salt Lake City, for appellants.

Justice LEE authored the opinion of the Court, in which Chief Justice DURRANT and Justice PARRISH joined. Associate Chief Justice NEHRING authored a dissenting and concurring opinion, in which Justice DURHAM joined.Justice LEE, opinion of the Court:

¶ 1 This is an interlocutory appeal from the denial of a defense motion for summary judgment. Plaintiffs alleged negligence in the hiring, training, and supervision of defendants' employees resulting in the sexual assault of A.R. (a minor child) by defendants' employee Matthew Cooper. The assault took place in a home occupied by disabled individuals who were living under defendants' care. Defendants moved for summary judgment on the grounds that they owed no duty of care to A.R. and that plaintiffs had failed to establish a standard of care through expert testimony. In a subsequent motion, defendants also asserted that in any event they were entitled to apportion liability to their employee under the comparative fault provisions of Utah Code section 78B–5–818. The district court denied defendants' motions, and we granted their petition for interlocutory appeal.

¶ 2 We affirm in part and reverse in part. First, we affirm the decision holding that defendants owed a duty to A.R. to exercise reasonable care in the hiring, training, and

[345 P.3d 622]

supervision of their employees. We do so on the basis of a special relationship that we find to have been established under the terms of the Restatement (Second) of Torts section 317. Second, we uphold the district court's determination that plaintiffs had no obligation to designate an expert witness to establish a standard of care. Finally, we reverse the district court's decision regarding apportionment, holding that the “fault” to be apportioned under Utah Code section 78B–5–818 is not limited to negligence but extends to intentional torts. On that point, we resolve a question identified in our past cases but never previously commanding a majority. See Field v. Boyer Co., 952 P.2d 1078, 1080 (Utah 1998) (Zimmerman, C.J., plurality opinion).


¶ 3 Defendants North Eastern Services–Lakeside, Inc. and North Eastern Services, Inc. (NES 1) provide services for individuals with mental and physical disabilities. NES's services are provided under contracts with the State of Utah, monitored by the State Department of Human Services. NES employees provide various levels of supervision, depending on the needs of the client as determined by the client's “action plan.”

¶ 4 Some NES homes are in residential neighborhoods. Typically such homes are occupied by three or fewer residents. Some of NES's action plans include goals for residents to interact with children, on the rationale that such interactions may be beneficial to the residents.

¶ 5 The sexual assault on A.R. occurred in a duplex referred to by NES as “Res 7.” The Res 7 duplex was in Logan, in a complex surrounding a central parking lot and play area. According to the record on summary judgment, the main door to Res 7 was often left open during the summer, allowing children to come in or out as they pleased.

¶ 6 There was also evidence of certain features that may have attracted children to approach and enter Res 7. For one thing, one of the residents of Res 7 was known for having candy on hand in his room. When neighborhood children asked about candy, NES staff would sometimes retrieve it for them from that client's room. Alternatively, he or the staff would sometimes invite the children into Res 7 to find the candy.

¶ 7 The record also indicated that NES staff had maintained a portable swimming pool outside the open door to Res 7. The principal purpose of the pool was for the benefit of the other resident of Res 7 (a second NES client whose action plan required NES monitoring “at all times” when near children). The second client used the pool to soak his feet. Neighborhood children often used it to play in during the summer.

¶ 8 The other attraction in Res 7 was a television. According to the record, neighborhood children often entered the residence to watch television or videos with the residents and/or NES staff.

¶ 9 A.R. was sexually abused by NES employee Cooper on July 18, 2008. On that day A.R. was playing in the common area outside of Res. 7, asked for some candy, and was invited into the residence to watch television with Cooper and one of the residents. Cooper eventually escorted A.R. into the bathroom, where he sexually assaulted her.

¶ 10 Cooper was under the supervision of NES employee Amber Brady at the time of the assault. Brady testified that she had a “bad feeling” when she saw Cooper show A.R. where the bathroom was, but proceeded with cleaning and vacuuming instead of intervening. She also indicated that when she went to put the vacuum away she saw Cooper and A.R. exiting the bathroom and “had such an awful feeling” when she noticed that A.R. had a “red face” and appeared to have been crying. At that point Brady asked A.R. what was wrong. A.R. responded inaudibly, and Cooper then answered for her, indicating that she “missed her home and wanted to go home.”

[345 P.3d 623]

¶ 11 Brady then called her supervisor and ultimately the police. Cooper was arrested and charged with aggravated sexual abuse of a child. He subsequently entered a guilty plea, and is now serving a sentence of fifteen years to life in prison.

¶ 12 NES's actions in hiring and supervising Cooper were of central concern on summary judgment. The evidence established that Michelle Grajeda was the person responsible for interviewing Cooper and checking his references. Yet although Cooper had been terminated from a recent job in the same field for sexually abusive conduct, Grajeda apparently never asked about his previous employment, indicating that she had never been trained to ask such questions. As for checking references, Grajeda testified that she had no memory of calling Cooper's previous employer(s), but believes that she would have done so per her past practice. Plaintiffs, on the other hand, presented evidence that Cooper's prior employer, Lindon Care, had terminated Cooper for sexually abusive actions against a client, had concluded that Cooper was not qualified to work in the field, and alleged that it had “no record of any phone calls received from any representative of [NES] regarding Mr. Cooper's employment with Lindon Care.” As for training, the summary judgment record indicated that Brady had not received training on children in NES homes or on how to keep children safe.

¶ 13 Plaintiffs Rachel Graves and Dustin Russell, A.R.'s parents, filed this negligence action on her behalf in the First District Court. Initially the complaint asserted claims only against Cooper. Plaintiffs subsequently amended the complaint to add claims against the NES defendants, including claims for negligence in hiring, training, and supervising its employees.

¶ 14 NES eventually filed a motion for summary judgment. The motion asserted two grounds for dismissal of plaintiffs' claims for negligence: (a) that NES owed no duty to A.R., a guest in the home of NES's clients, in its hiring, training, and supervision of employees; and (b) that plaintiffs had failed to establish a standard of care through expert testimony, thereby leaving the jury to speculate as to what NES was reasonably required to do under the circumstances of the case.

¶ 15 Soon after the filing of the NES motion, plaintiffs sought voluntary dismissal of their claims against Cooper. NES filed a notice asserting its intention to seek apportionment of comparative fault of Cooper under Utah Code section 78B–5–818.

¶ 16 The district court denied NES's motion for summary judgment on the negligence claims. It also approved dismissal of Cooper as a defendant and ruled that apportionment as to his intentional conduct was improper under section 78B–5–818 (while approving a jury instruction explaining his role in the case).

¶ 17 We granted NES's petition for interlocutory appeal. We now review the district court's decisions—on summary judgment, and on issues of law—de novo, affording no deference to its determination of the matters on appeal. Bahr v. Imus, 2011 UT 19, ¶ 15, 250 P.3d 56.


¶ 18 We affirm the denial of NES's motion for summary judgment, concluding that NES owed a duty to A.R. and that plaintiffs had no obligation to present expert testimony in support of a standard of care. We reverse as to the district court's determination regarding apportionment, however. On this issue, we hold that the text of the apportionment statute broadly authorizing apportionment for any and all “fault”—expressly defined to encompass “any actionable breach of legal duty, act, or omission proximately causing or contributing to injury,” Utah Code § 78B–5–817, encompasses not just negligence but also intentional acts.

A. Duty

¶ 19 We recently clarified and extended the paradigm for analyzing questions of duty in tort in our opinion in B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228. In that case we reaffirmed the core tort-law distinction between misfeasance (active misconduct) and nonfeasance (omissions). Id. ¶ 7. Specifically, we noted that we all generally have a duty

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of due care in the performance of our affirmative acts, but that a duty regarding...

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