Wright v. University of Utah

• Decision Date: 06 May 1994
• Docket Number: No. 930217-CA,930217-CA
• Citation: 876 P.2d 380
• Parties: 92 Ed. Law Rep. 665 Clare N. WRIGHT, Plaintiff and Appellant, v. UNIVERSITY OF UTAH and the State of Utah, Defendants and Appellees.
• Court: Utah Court of Appeals

Page 380

876 P.2d 380

92 Ed. Law Rep. 665

Clare N. WRIGHT, Plaintiff and Appellant, v. UNIVERSITY OF UTAH and the State of Utah, Defendants and Appellees.

No. 930217-CA.

Court of Appeals of Utah.

May 6, 1994.

Petitions for Certiorari Denied Aug. 9, 1994.

David R. Olsen (argued) and Paul M. Simmons, Suitter Axland Armstrong & Hanson, Salt Lake City, for appellant.

Jan Graham, State Atty. Gen., Debra J. Moore, and Elizabeth King, Asst. Attys. Gen., (argued), Salt Lake City, for appellees.

Before BENCH, BILLINGS, and DAVIS, JJ.

OPINION

DAVIS, Judge:

Plaintiff Clare N. Wright appeals from the dismissal of her complaint against the University of Utah and the State of Utah (University). We affirm.

I. FACTS

On October 26, 1990, Wright filed a complaint against the University alleging that she had been "assaulted and struck" by a University employee, and that she had suffered injuries as a result. The complaint asserted that the University was liable for the acts of its employee under a respondeat superior theory or as the result of negligent hiring and supervision of the employee. The only fact pleaded to support her claim against the University was that the employee "had a known propensity for violence."

Instead of answering the complaint, on November 13, 1990, the University filed a "Motion for Judgment on the Pleadings" pursuant to Utah Rule of Civil Procedure 12(c). In support of its motion, the University claimed that it was immune from suit under section 63-30-10(2) ¹ of the Utah Governmental Immunity Act (the Act), which immunizes government entities from suit for injuries arising out of an assault or battery. ²

In response to the University's motion, Wright filed a memorandum arguing that the assault exception to the general waiver of immunity for negligent acts of government employees in section 63-30-10(2) does not apply because (1) her injury arose not out of an assault, but out of the University's negligent hiring and supervision of the employee, (2) the assault was not committed in the course of a core government activity, and (3) the employee who struck her may not have been able to form the requisite mental intent to commit an assault. ³ Wright also claimed that if the Act did bar her action, it was unconstitutional as applied to her and on its face.

After oral argument on July 10, 1992, the trial court granted the University's motion and dismissed Wright's action with prejudice. The trial court's order of dismissal was entered on October 2, 1992. This appeal followed. On appeal, Wright reiterates and expands the arguments she raised in opposition to the motion for judgment on the pleadings. We address each of Wright's assertions in turn.

II. STANDARD OF REVIEW

Both parties addressed the University's motion as one for judgment on the pleadings pursuant to Utah Rule of Civil Procedure 12(c). However, that section by its terms applies only to a judgment on pleadings "[a]fter the pleadings are closed." Utah R.Civ.P. 12(c). Here, the University never filed an answer and instead challenged the sufficiency of the complaint. Thus, the proper procedure for analyzing the trial court's ruling lies under Utah R.Civ.P. 12(b)(6). See Geltman v. Verity, 716 F.Supp. 491, 492 (D.Colo.1989) (ruling that motion for judgment on pleadings filed before answer is treated as motion to dismiss).

When reviewing a dismissal based on Rule 12(b)(6), "an appellate court must accept the material allegations of the complaint as true, and the trial court's ruling should be affirmed only if it clearly appears the complainant can prove no set of facts in support of his or her claims." Hansen v. Department of Fin. Inst., 858 P.2d 184, 185-86 (Utah App.1993) (citing Anderson v. Dean Witter Reynolds, Inc., 841 P.2d 742, 744 (Utah App.1992), cert. denied, 853 P.2d 897 (Utah 1993)). The propriety of a Rule 12(b)(6) dismissal is a question of law that we review for correctness, giving no particular deference to the lower court's determination. St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991); Hansen, 858 P.2d at 186.

III. APPLICATION OF UTAH GOVERNMENTAL IMMUNITY ACT

Wright's first claim on appeal is that her lawsuit is not barred by Utah Code Ann. § 63-30-10(2) (1993) because her injuries did not arise out of an assault and battery. Instead, she alleges that her injuries arose out of the University's negligent hiring and supervision of an employee with a known propensity for violence.

After Wright made this assertion in her brief on appeal, the Utah Supreme Court issued its opinion in Ledfors v. Emery County School District, 849 P.2d 1162 (Utah 1993). In Ledfors, the plaintiffs sued the defendant school district for injuries their son suffered when two fellow students assaulted him. Id. at 1162. The defendant moved for summary judgment, claiming that it was immune from suit under section 63-30-10(2). ⁴ In affirming the trial court's grant of summary judgment for the defendant, the supreme court rejected the plaintiffs' assertion that the injury arose from the defendant's failure to supervise rather than from a battery. Id. at 1166. In so holding, the court stated that "section 63-30-10 focuses on the conduct or situation out of which the injury arose, not on the theory of liability crafted by the plaintiff or the type of negligence alleged." Id. The court also noted that it had "rejected claims that have reflected attempts to evade [the section 63-30-10] statutory categories by recharacterizing the supposed cause of the injury." Id.

Ledfors is controlling here and effectively bars Wright's assertion that her injuries arose from the University's alleged negligent hiring and supervision of the employee who struck her instead of from an assault or battery. See also S.H. v. State, 865 P.2d 1363, 1365 (Utah 1993) (holding that plaintiffs could not frame claim against state on the basis of negligent hiring, retention and supervision in order to avoid dismissal pursuant to section 63-30-10(2)); Maddocks v. Salt Lake City Corp., 740 P.2d 1337, 1340 (Utah 1987) (holding that plaintiff could not avoid dismissal under section 63-30-10(2) by framing claim on the basis of negligence); accord Malcolm v. State, 235 Utah Adv.Rep. 18, 20, --- P.2d ---- (Utah 1994).

Next, Wright argues the exception in section 63-30-10(2) applies only to assaults and batteries actually committed in the course of governmental, as opposed to nongovernmental, activities. Wright claims that "an attack by a noneducational employee at a public university" does not qualify for immunity under that section.

Wright's assertion misconstrues section 63-30-10 and reads a distinction into the Act that does not exist. Section 63-30-10(2) does not require that the person committing an assault and battery must be engaged in a governmental function in order for a government entity to qualify for immunity under that section. The Utah Supreme Court has, on several occasions, found a government entity immune from suit under section 63-30-10(2) when the person who committed the assault and battery was not even a government employee, much less personally involved in a governmental activity. Malcolm, 235 Utah Adv.Rep. at 19, --- P.2d at ---- (assault by parolee); S.H., 865 P.2d at 1365 (assault by non-employee cab driver); Higgins v. Salt Lake County, 855 P.2d 231, 240 (Utah 1993) (assault and battery by mental patient); Ledfors, 849 P.2d at 1166 (battery by school students). The Act specifies only that a court examine generally whether the activity that the government entity performs is a governmental function under section 63-30-3. ⁵ Ledfors, 849 P.2d at 1164.

Moreover, Wright would have us determine that although a government entity may be performing a governmental function, assaults by most of its support employees do not qualify for immunity even though those employees play an integral part in the functioning of the entity. We decline to accept this reading of the Act. ⁶

Wright's next claim on appeal is that the assault and battery provision in section 63-30-10(2) does not preclude recovery because the employee's attack on her may have been unintentional due to the employee's questionable mental condition at the time of the assault. Wright notes that assault and battery are intentional torts. Therefore, the argument continues, if the employee was unable to form the requisite intent for assault or battery, he cannot be said to have committed the same, and section 63-30-10(2) does not apply.

We need not address this issue because Wright's argument on this point cannot be squared with the allegations in her complaint. She did not allege that the employee unintentionally struck her--she stated that the employee "assaulted and struck her." (Emphasis added.) By our reading, and the trial court's, "assaulted and struck" expresses an intentional hitting. In her memorandum and at oral argument on the motion for judgment on the pleadings, Wright claimed, but did not allege in her complaint, that the employee was autistic and may have been in a trance when he attacked her. However, she never amended her complaint to reflect that approach or to allege anything but an intentional hitting. Although we accept the allegations in the complaint as true and affirm dismissal only if no set of facts exists to support the complaint, we cannot add facts or causes of action to the complaint that do not exist and that Wright has consistently declined to include.

Wright argues that under Utah's liberal rules of pleading, her claim that she was "assaulted and struck" should be construed broadly, especially where the State was on notice from Wright's response to its motion for judgment on the pleadings that she was attempting to assert an unintentional hitting. While it is true that Utah has adopted liberal notice pleading requirements, see, e.g., Williams v. State Farm Ins. Co., 656 P.2d 966, 971 (Utah 1982), those requirements cannot be applied in a vacuum....