United States District Court, D. Utah
K.N., a minor, and JENNIFER NGATUVAI, individually and on behalf of K.N., Plaintiffs,
LIFE TIME FITNESS, INC., a foreign corporation, Defendant.
MEMORANDUM DECISION AND ORDER
N. Parrish United States District Court Judge
Judge Jill N. Parrish Before the court is Life Time Fitness,
Inc.'s Motion for Partial Summary Judgment Re: Claims of
Jennifer Ngatuvai (ECF No. 67). For the reasons below, the
court grants the motion as to Ms. Ngatuvai's claim for
intentional infliction of emotional distress and stays the
remainder of the motion. The court will issue a separate
order certifying questions to the Utah Supreme Court.
Ngatuvai is K.N.'s mother, and they both reside in Utah.
In July 2016, Ms. Ngatuvai became a member of Life Time
Fitness, a fitness center in South Jordan, Utah. When she
joined the fitness center, Ms. Ngatuvai signed a Member Usage
Agreement, which included an Assumption of Risk and Waiver of
August 18, 2014, Ms. Ngatuvai left her
three-and-a-half-year-old daughter, K.N., in Life Time's
child center while Ms. Ngatuvai participated in a water
aerobics class in Life Time's pool. After about ninety
minutes, Ms. Ngatuvai returned to the child center to fetch
her daughter. But K.N. was not easy to find. After some
searching, Ms. Ngatuvai eventually found her daughter in the
boys' bathroom, naked from the waist down.
Ms. Ngatuvai was angry. Life Time's policy is that boys
use the boys' bathroom and girls use the girls'
bathroom. Ms. Ngatuvai spoke with Life Time child center
employees at the front desk and then ventured to the child
center manager's office, where she spoke with Sarah
Johnson Carroll. After Ms. Ngatuvai informed Ms. Carroll that
she had found her daughter partially undressed in the
boys' bathroom, Ms. Carroll left her office and went to
the child center to investigate. At that point, K.N. told her
mother that “the boys licked her.” Ms. Ngatuvai
then left the child center to report the incident to Life
Time's general manager, Steve Cutler, in his office.
After speaking with Mr. Cutler, Ms. Ngatuvai and her daughter
left Life Time to shop at Sam's Club before returning
home. Over the next half hour after leaving Life Time, Ms.
Ngatuvai questioned her daughter to obtain more information,
including clarification regarding whether there had been one
or two boys in the bathroom with her.
the incident at Life Time, Ms. Ngatuvai attended seven
appointments for counseling with Tammy Ishimatsu, who is a
licensed clinical social worker. Ms. Ishimatsu noted that Ms.
Ngatuvai had suffered a secondary trauma and met some of the
criteria for PTSD, but she was unsure whether Ms. Ngatuvai
met the full criteria. Still, Ms. Ishimatsu did diagnose Ms.
Ngatuvai with moderate depression and recommended a course of
treatment. However, Ms. Ngatuvai did not complete that course
of treatment because she “didn't love” the
December 24, 2015, Ms. Ngatuvai filed suit against Life Time
in state court. The case was removed to this court on the
basis of diversity jurisdiction in January 2016. Ms. Ngatuvai
alleges that her daughter was sexually assaulted at Life
Time, and she brings claims on behalf of her daughter and on
her own behalf, including claims for negligent infliction of
emotional distress and intentional infliction of emotional
Federal Rule of Civil Procedure 56(a), “[t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” A dispute
is genuine only if “a reasonable jury could find in
favor of the nonmoving party on the issue.” Macon
v. United Parcel Serv., Inc., 743 F.3d 708, 712 (10th
Cir. 2014). “In making this determination, ‘we
view the evidence and draw reasonable inferences therefrom in
the light most favorable to the nonmoving party.'”
Id. at 712- 13 (quoting Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir.
movant is not required to provide evidence negating an
opponent's claim. Comm. for First Amendment v.
Campbell, 962 F.2d 1517, 1521 (10th Cir. 1992) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
Rather, the nonmoving party has the burden of
“present[ing] affirmative evidence in order to defeat a
properly supported motion for summary judgment.”
Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 257 (1986)). “[A] party
opposing a motion for summary judgment may not rest on mere
allegations or denials to demonstrate there is a genuine
issue of material fact for trial.” Sammons v.
Allenbrand, 817 F.Supp. 94, 95 (D. Kan. 1993) (quoting
Liberty Lobby, 477 U.S. at 256). Rather, “[a]
party asserting that a fact is . . . genuinely disputed must
support the assertion by citing to particular parts of
materials in the record.” Fed.R.Civ.P. 56(c)(1).
See also DUCivR 56-1.
Time urges the court to grant summary judgment in its favor
on Ms. Ngatuvai's claims for negligent infliction of
emotional distress and intentional infliction of emotional
distress. The court first addresses her claim for intentional
infliction of emotional distress. Then it turns to her claim
for negligent infliction of emotional distress. Finally, the
court examines the preinjury release Ms. Ngatuvai signed upon
joining Life Time.
Intentional Infliction of Emotional Distress
recognizes claims for the tort of intentional infliction of
emotional distress. To properly state a claim for the tort,
[a] plaintiff must plead facts that demonstrate that the
defendant intentionally engaged in some conduct toward the
plaintiff, (a) with the purpose of inflicting emotional
distress, or, (b) where any reasonable person would have
known that such would result; and his actions are of
such a nature as to be considered outrageous and intolerable
in that they offend against the generally accepted standards
of decency and morality.
Oman v. Davis School Dist., 194 P.3d 956, 969 (Utah
2008). Life Time argues that it cannot be liable for
intentional infliction of emotional distress because
“Jennifer Ngatuvai has failed to set forth any evidence
to demonstrate that Life Time intentionally caused her
harm.” ECF No. 67 at 15.
Ngatuvai does not respond to Life Time's argument.
Consequently, she fails to meet her burden to “present
affirmative evidence in order to defeat” Life
Time's properly supported motion for summary judgment on
intentional infliction of emotional distress. See
Campbell, 962 F.2d at 1521. At oral argument, counsel
for Ms. Ngatuvai suggested that Life Time's actions taken
after Ms. Ngatuvai discovered her daughter in the boys'
bathroom constituted an intentional tort. But Ms.
Ngatuvai's complaint makes no reference to any Life Time
actions taken after Ms. Ngatuvai found her daughter.
Therefore, summary judgment in favor of Life Time on Ms.
Ngatuvai's claim for intentional infliction of emotional
distress is appropriate.
Negligent Infliction of Emotional Distress
1988, the Utah Supreme Court recognized a cause of action for
negligent infliction of emotional distress and established
guidelines limiting the availability of recovery. See
Johnson v. Rogers, 763 P.2d 771 (Utah 1998). In
Johnson, a majority of the court agreed that the
test for determining liability would be as set forth in
§ 313 of the Second Restatement of Torts and as
explained in the accompanying comments. See Id. at
785 (Zimmerman, J., joined by three other justices,
concurring in part).
(1) If the actor unintentionally causes emotional distress to
another, he is subject to liability to the other for
resulting illness or bodily harm if the actor
(a) should have realized that his conduct involved an
unreasonable risk of causing the distress, otherwise than by
knowledge of the harm or peril of a third person, and
(b) from facts known to him should have realized that the
distress, if it were caused, might result in illness or
(2) The rule stated in Subsection (1) has no application to
illness or bodily harm of another which is caused by
emotional distress arising solely from harm or peril to a
third person, unless the negligence of the actor has
otherwise created an unreasonable risk of bodily harm to the
(Second) of Torts § 313 (1965) (emphasis added). Under
§ 313(2), Ms. Ngatuvai cannot recover for injury caused
by emotional distress arising solely from harm to her
daughter unless Life Time's negligence created an
unreasonable risk of bodily harm to Ms. Ngatuvai. Courts
frequently call this requirement the “zone of
Zone of Danger
Ms. Ngatuvai was not in the zone of danger during the alleged
assault on her daughter. She was participating in an aerobics
class in the pool while her daughter was in the child care
center. Cf. Hansen v. Sea Ray Boats, 830 P.2d 236,
237 (Utah 1991) (“a plaintiff may only recover for
trauma caused by witnessing injury to a relative if the
plaintiff is also within the zone of danger”);
Restatement (Second) of Torts § 313, cmt. d
(“[W]here the actor negligently runs down and kills a
child in the street, and its mother, in the immediate
vicinity, witnesses the event and suffers severe emotional
distress resulting in a heart attack or other bodily harm to
her, she cannot recover for such bodily harm unless she was
herself in the path of the vehicle, or was in some other
manner threatened with bodily harm to herself otherwise than
through the emotional distress at the peril to her
child.”). Because Ms. Ngatuvai was not in the zone of
danger during the alleged assault, she cannot recover under
the principles enunciated in the Second Restatement.
the Utah Supreme Court most recently visited the “zone
of danger” analysis in 1999 when it decided Straub
v. Fisher & Paykel Health Care, 990 P.2d 384 (Utah
1999). In that case, the court considered an approach taken
by the Supreme Court of California in Dillon v.
Legg, 441 P.2d 912, 914 (1968). In Dillon, the
California Supreme Court expanded the “zone of
danger” analysis and began permitting recovery for
emotional distress when three conditions are present: (1) the
plaintiff is located near the scene of the accident; (2) the
emotional shock results from “the sensory and
contemporaneous observance of the accident”; and (3)
the plaintiff and victim are closely related. Id. at
920-21. But the Utah Supreme Court rejected the
Dillon approach, as it had done seven years before
in Hansen v. Sea Ray Boats, Inc., 830 P.2d 236 (Utah
1992). The court ...