Wagner v. State

• Decision Date: 30 August 2005
• Docket Number: No. 20040405.,20040405.
• Citation: 122 P.3d 599,2005 UT 54
• Parties: Tracy D. WAGNER and Robert W. Wagner, Plaintiffs and Petitioners, v. STATE of Utah, Utah Department of Human Services, and Utah State Development Center, Defendants and Respondents.
• Court: Utah Supreme Court

122 P.3d 599

2005 UT 54

Tracy D. WAGNER and Robert W. Wagner, Plaintiffs and Petitioners, v. STATE of Utah, Utah Department of Human Services, and Utah State Development Center, Defendants and Respondents.

No. 20040405.

Supreme Court of Utah.

August 30, 2005.

COPYRIGHT MATERIAL OMITTED

D. David Lambert, Leslie W. Slaugh, Ryan D. Tenney, Provo, for plaintiffs.

Mark L. Shurtleff, Att'y Gen., Barry G. Lawrence, Nancy L. Kemp, Asst. Att'ys Gen., Salt Lake City, for defendants.

On Certiorari to the Utah Court of Appeals.

WILKINS, Associate Chief Justice:

¶ 1 Tracy and Robert Wagner seek review of the court of appeals' ruling that the trial court properly granted a rule 12(b)(6) motion dismissing their suit against the State. The Wagners' suit, which sought recovery for injuries Mrs. Wagner sustained when a mentally handicapped man attacked her while he was in the custody of state employees, was dismissed at the trial court, and affirmed at the court of appeals, on the ground that the attack constituted a battery, a tort for which the State has retained immunity from suit. The Wagners then petitioned this court for certiorari, which we granted. We now affirm.

BACKGROUND

¶ 2 When reviewing a 12(b)(6) motion, we recite the facts in a light most favorable to the non-moving party, though there is no dispute in this case as to the facts. Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993).

¶ 3 Tracy Wagner was standing in a customer service line at a K-Mart store in American Fork, Utah, when she was suddenly and inexplicably attacked from behind. The Wagners' alleged that Sam Giese, a mentally disabled patient of the Utah State Development Center ("USDC"), "became violent, took [Mrs. Wagner] by the head and hair, threw her to the ground, and otherwise acted in such a way as to cause serious bodily injury to her."

¶ 4 USDC employees had accompanied Mr. Giese to K-Mart as part of his treatment program and had remained in K-Mart to supervise him. While this particular episode of violence was sudden, it was not altogether unpredictable. Mr. Giese had a history of violent conduct and presented a potential danger to the public if not properly supervised.

¶ 5 Mrs. Wagner and her husband subsequently filed a complaint against USDC and the Utah Department of Human Services, the state agency under which USDC operates, for failing to "properly supervise the activity of" Mr. Giese while he was in its care. Because the defendants to this matter are all governmental entities, they moved to dismiss the complaint under Utah Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing that Mrs. Wagner's injuries arose out of a battery, a tort for which the government is immune from suit. Thus, under the Governmental Immunity Act, Utah Code Ann. § 63-30-10(2) (Utah 1997) (repealed 2004), the defendants could not be held liable for injuries arising out of the battery here. The district court agreed with the government and dismissed the Wagners' complaint, holding that because Giese initiated a contact with "deliberate" intent, his attack constituted a battery and the government was immune under the statute.

¶ 6 The Wagners appealed the decision to the court of appeals, arguing that the intentional tort of battery requires proof of both an intent to make a contact and an intent to cause harm thereby, and because Mr. Giese was mentally incompetent to formulate the intent to cause harm, his attack could not constitute a battery as a matter of law. The defendants, on the other hand, maintained that a person need only intend to make a harmful or offensive contact in order for that contact to constitute a battery upon another. A person need not intend to cause harm or appreciate that his contact will cause harm so long as he intends to make a contact, and that contact is harmful.

¶ 7 Both parties filed briefs with the court of appeals, but oral argument was not heard on the matter. Instead, the court issued a memorandum opinion affirming the district court's order of dismissal. Wagner v. Utah Dep't of Human Servs., No. 20030106-CA, 2004 WL 530728, *3, 2004 Utah App. LEXIS 282, at *8 (Utah Ct.App. Mar.18, 2004) (mem.). The court of appeals reasoned that Mr. Giese's attack on Mrs. Wagner constituted a battery under Utah jurisprudence interpreting the Governmental Immunity Act. Id., 2004 WL 530728, *1, at *5 The court distinguished the case at bar from the case the Wagners cited in support of their argument, finding that Mr. Giese's attack, unlike the incident involved in the cited case, "`creat[ed] a substantial certainty [that] harm'" would arise out of the contact. Id., 2004 WL 530728, *2, at *6 (quoting Matheson v. Pearson, 619 P.2d 321, 323 (Utah 1980)).

¶ 8 Looking to outside case law as well, the court of appeals found that the decisions reached in other jurisdictions supported its conclusion that the resolution of the issue turned not on whether the perpetrator of the attack intended to cause harm, but rather upon "`whether the injury was perpetrated deliberately or accidentally.'" Id. at *7 (quoting Miele v. United States, 800 F.2d 50, 52 (2d Cir.1986)). The court of appeals joined the courts of other jurisdictions, both state and federal, in declining to incorporate a requirement that the perpetrator have a certain mental state at the moment of the attack in order for that attack to constitute a battery. The Wagners appealed to this court, and we have jurisdiction pursuant to Utah Code section 78-2-2(3)(a) (2002).

STANDARD OF REVIEW

¶ 9 When reviewing a court of appeals decision affirming a grant of a rule 12(b)(6) motion to dismiss, "we review the decisions of the court of appeals rather than that of the trial court. . . for correctness." Taghipour v. Jerez, 2002 UT 74, ¶ 8, 52 P.3d 1252. Because we are reviewing a rule 12(b)(6) motion, we must "accept the material allegations in the complaint as true and interpret those facts and all reasonable inferences drawn therefrom in a light most favorable to the plaintiff as the non-moving party." Russell Packard Dev. v. Carson, 2005 UT 14, ¶ 3, 108 P.3d 741. We will affirm the court of appeals' dismissal of the case only if, after granting such deference to the Wagners' factual presentation, we still find that they have failed to state a claim upon which relief can be granted. Utah R. Civ. P. 12(b)(6).

ANALYSIS

I. GOVERNMENTAL IMMUNITY ACT

¶ 10 In interpreting any statute, rules of statutory construction require the court to "first look[ ] to the statute's plain language, and give effect to the plain language unless the language is ambiguous." Blackner v. State, 2002 UT 44, ¶ 12, 48 P.3d 949. At the time of the incident in this case, the Governmental Immunity Act read as follows:

Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of. . .:

(2) assault, battery, [or] false imprisonment. . . .

Utah Code Ann. § 63-30-10(2) (Utah 1997) (repealed 2004).

¶ 11 This court has previously held in governmental immunity cases that the State is immunized against a negligence action if the action arises out of an assault or battery. Tiede v. State, 915 P.2d 500, 502-03 (Utah 1996) (holding the State immune from suit for negligence in the shooting deaths of two and the assault and battery upon three others under the assault and battery exception to the immunity waiver); Higgins v. Salt Lake County, 855 P.2d 231, 241 (Utah 1993) (county immune from suit under the battery exception where a mentally ill patient at a county facility stabbed a child); Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1166 (Utah 1993) (school district immune from suit under the battery exception for failing to properly supervise high school students where those students severely beat another student during a physical education class).

¶ 12 Utah courts make three inquiries to determine whether the government is immune from suit under the Governmental Immunity Act. First, courts must ascertain whether the activity was a governmental function and thereby entitled to blanket immunity under the Act. Second, if the activity constituted a governmental function, courts must then look to see whether the State has waived immunity under another section of the Act. Finally, courts must determine whether there is an exception to the waiver of immunity that retains immunity against suit for the cause of action in the particular case. Taylor v. Ogden City Sch. Dist., 927 P.2d 159, 162 (Utah 1996).

¶ 13 Both sides concede that "the first two factors do not shield the State" from suit. Wagner v. State, No. 20030106-CA, 2004 WL 530728, *1, 2004 Utah App. LEXIS 282, *4. The State does argue, however, that the third inquiry requires that the suit against the State be dismissed under the Governmental Immunity Act because Mr. Giese's attack constituted a battery, an exception to the waiver of immunity under former section 63-30-10(2).

¶ 14 The Wagners argue that Mr. Giese's attack could not legally constitute a battery because that intentional tort requires the actor to intend harm or offense through his deliberate contact, an intent Mr. Giese was mentally incompetent to form. The State, on the other hand, argues that the only intent required under the statute is simply the intent to make a contact. The contact must be harmful or offensive by law, but the actor need not intend harm so long as he intended contact.

¶ 15 The outcome of this case, then, turns upon which interpretation of the definition of battery is correct. Accordingly, we turn our attention now to the law of battery as defined in the Restatement.

II. THE RESTATEMENT DEFINITION OF BATTERY

¶ 16 While there is some variation among the definitions of the tort of battery, Prosser and Keeton on the Law of Torts § 8, at 33-34 (W. Page Keeton et al. eds., 5th ed.1984) (hereinafter Prosser), Utah...