Mower v. Baird, 20160149

• Citation: 422 P.3d 837
• Decision Date: 05 July 2018
• Docket Number: No. 20160149,20160149
• Parties: Thomas E. MOWER, Appellant, v. Nancy BAIRD and the Children’s Center, Appellees.
• Court: Supreme Court of Utah

422 P.3d 837

Thomas E. MOWER, Appellant,

v.Nancy BAIRD and the Children’s Center, Appellees.

No. 20160149

Supreme Court of Utah.

Filed July 5, 2018

As Corrected July 11, 2018

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.

Justice Petersen became a member of the Court on November 17, 2017, after oral argument in this matter and accordingly did not participate.

On Direct Appeal

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 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 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 T.M.’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 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 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...