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Larsen v. Davis County School District

Court of Appeals of Utah

November 30, 2017

David Drake Larsen, Appellant,
Davis County School District, Appellee.

         Second District Court, Farmington Department The Honorable John R. Morris No. 150700222

          Erik M. Ward, Lindy W. Hamilton, and Robert W. Gibbons, Attorneys for Appellant

          Sean D. Reyes and Peggy E. Stone, Attorneys for Appellee

          Judge Ryan M. Harris authored this Opinion, in which Judges Kate A. Toomey and Jill M. Pohlman concurred.

          HARRIS, JUDGE.

         ¶1 Plaintiff David Drake Larsen alleges that in 2013, when he was sixteen years old, one of his high school teachers (Teacher) initiated a romantic relationship with him, beginning with "flirtatious conversations" and text messages, and eventually culminating in sexual intercourse. In 2015, Larsen sued the Davis County School District (the District), asserting that the District was negligent in its hiring, supervision, and retention of Teacher, and seeking recovery for damages he claims to have sustained as a result of his relationship with Teacher. The district court dismissed Larsen's lawsuit, determining that the District was immune from suit pursuant to the Governmental Immunity Act of Utah (the Act). Because we conclude that the Act, under either of two different interpretations and as construed by our supreme court, compels dismissal of Larsen's claims, we affirm.


         ¶2 In 2013, Larsen was a student at Davis High School in Kaysville, Utah. Larsen alleges that Teacher "initiated a romantic relationship" with him while she was his teacher. Specifically, Larsen asserts that the relationship began with "flirtatious conversations" in the classroom, as well as text messages, and that Teacher encouraged him to visit her classroom during her preparation period to continue their conversations. According to Larsen, Teacher eventually asked him to meet her privately, both on and off school grounds, and some of these private meetings included "inappropriate sexual contact." Larsen alleges that the "first sexual intercourse" between him and Teacher "was initiated by [Teacher] luring [Larsen] from school grounds and then driving him to her home, during school hours, " and that "[a]t least three additional sexual encounters occurred during school hours, on or near school grounds."

         ¶3 Larsen sued the District, alleging that the District was negligent in its hiring, supervision, and retention of Teacher. Specifically, Larsen asserts that, at the time it hired Teacher, the District knew, or at least should have known, that Teacher "had been previously terminated from former employment due to sexual misconduct." In addition, Larsen asserts that on at least one occasion, the District "reprimanded Teacher" after learning that she had been involved with "inappropriate contact with students, " but that the District "failed to take sufficient steps to either terminate her or supervise her."

         ¶4 As part of his negligence claim, Larsen specifically asserts that the District "failed to adequately train, retrain, and/or supervise its employees"; "negligently screened and hired an employee whom the [D]istrict knew or should have known was unfit to be a teacher and posed a risk to students"; "failed to supervise a teacher whom the [D]istrict knew or should have known posed a risk to students"; "negligently retained a teacher who was engaging in inappropriate behavior with students"; and "failed in its duty to supervise and direct its employees in a manner so as to protect its students from harm."

         ¶5 In addition to his claim for negligence, Larsen also brought claims for negligent infliction of emotional distress, breach of common law duty to protect from harm, vicarious liability for sexual misconduct, and vicarious liability for seduction.

         ¶6 Before answering, the District moved to dismiss Larsen's entire complaint for failure to state a claim pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure, asserting that all of Larsen's claims were barred by governmental immunity. Specifically, the District pointed out that governmental immunity is not waived for injuries that are proximately caused by "assault" or "battery, " and argued that Larsen's injuries were proximately caused-at least in part-by the "assault and battery" that Teacher allegedly inflicted upon Larsen.

         ¶7 After full briefing and oral argument, the district court agreed with the District and dismissed Larsen's complaint. The district court determined that Teacher's conduct toward Larsen was an "assault" or "battery, " and that this assault or battery was at least a proximate cause of Larsen's injuries, as pleaded in his complaint. The district court determined that dismissal was appropriate on immunity grounds as long as the assault and battery was "a cause" of Larsen's injuries, even if it was not the "sole cause."

         ¶8 Larsen appeals the district court's dismissal of his complaint.


         ¶9 The sole issue presented by this appeal is whether the district court properly dismissed Larsen's complaint pursuant to rule 12(b)(6). "A motion to dismiss is appropriate only where it clearly appears that the plaintiff[] would not be entitled to relief under the facts alleged or under any set of facts [he] could prove to support [his] claim." Miller v. West Valley City, 2017 UT App 65, ¶ 12, 397 P.3d 761 (citation and internal quotation marks omitted). In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, we accept the facts pleaded as true, interpreting those facts and reasonable inferences drawn from the facts in the light most favorable to the plaintiff. Moss v. Pete Suazo Utah Athletic Comm'n, 2007 UT 99, ¶ 8, 175 P.3d 1042. Because the propriety of the district court's decision to grant the District's motion to dismiss presents a question of law, we review for correctness. Spencer v. Glover, 2017 UT App 69, ¶ 5, 397 P.3d 780.


         ¶10 The Act, as formulated in 2013, [1] stated as a general proposition that "each governmental entity and each employee of a governmental entity are immune from suit for any injury that results from the exercise of a governmental function." Utah Code Ann. § 63G-7-201(1) (LexisNexis Supp. 2012). However, the Act waives governmental immunity in certain circumstances, and some of the waivers contain exceptions. Thus, in cases where a governmental entity asserts that it is immune from suit pursuant to the Act, we apply a three-part test to determine whether immunity exists. Thayer v. Washington County School Dist., 2012 UT 31, ¶ 8, 285 P.3d 1142. First, we examine "whether the activity undertaken is a governmental function." Id. (citation and internal quotation marks omitted). Second, we determine "whether governmental immunity was waived for the particular activity." Id. (citation and internal quotation marks omitted). Finally, we look to see whether immunity has been reinstated through a statutory exception to the immunity waiver. Id.

         ¶11 In this case, the first question is not at issue; all parties agree that the District was engaged in a governmental function when it operated Davis High School and hired and supervised Teacher. Instead, this case hinges on steps two and three: whether immunity has been waived and, if so, whether there is an exception to that waiver.

         ¶12 Larsen directs us to the statutory waiver of governmental immunity for acts of negligence. That waiver is found in subsection (4) of section 301 of the Act, and provides as follows:

Immunity from suit . . . is waived as to any injury proximately caused by a negligent act or omission of an employee committed ...

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