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K.N. v. Life Time Fitness, Inc.

United States District Court, D. Utah

March 23, 2018

K.N., a minor, and JENNIFER NGATUVAI, individually and on behalf of K.N., Plaintiffs,
v.
LIFE TIME FITNESS, INC., a foreign corporation, Defendant.

          MEMORANDUM DECISION AND ORDER

          Jill N. Parrish United States District Court Judge

         District 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.

         I. BACKGROUND

         Jennifer 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 Liability provision.

         On 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.

         Understandably, 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.

         Following 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 counselor.

         On 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 distress.

         II. LEGAL STANDARD

         Under 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. 2000)).

         A 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.

         III.DISCUSSION

         Life 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.

         A. Intentional Infliction of Emotional Distress

         Utah 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.

         Ms. 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.

         B. Negligent Infliction of Emotional Distress

         In 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).

         The Restatement reads:

(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 bodily harm.
(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 other.

         Restatement (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 danger” test.

         1. Zone of Danger

         Clearly, 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.

         However, 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 ...


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