Thomas E. Mower, Appellant,
Nancy Baird and The Children's Center, Appellees.
Direct Appeal Third District, Salt Lake The Honorable Robert
P. Faust No. 150905061
Douglas B. Thayer, Mark R. Nelson, Lehi, David L. Arrington,
Salt Lake City, for appellant
Gregory J. Sanders, Sarah C. Vaughn, Salt Lake City, for
L. Booher, Julie J. Nelson, John J. Hurst, Salt Lake City,
for amici National Association of Social Workers; National
Association of Social Workers, Utah Chapter; Utah
Psychological Association; Utah Medical Association; Utah
Psychiatric Association; and Utah Academy of Child and
Justice Himonas authored the opinion of the Court, in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Pearce, and Judge Pettit joined.
her retirement, Justice Durham did not participate herein;
District Court Judge Kara L. Pettit sat.
Justice Petersen became a member of the Court on November 17,
2017, after oral argument in this matter and accordingly did
1 The law isn't good-for-nothing when a therapist causes
a child to falsely accuse a parent of sexual abuse.
2 In March 2011, Thomas Mower's now ex-wife, Lidia Mower,
began taking their four-year-old daughter, T.M., to The
Children's Center for therapy. The Children's Center
provided services to T.M. through Nancy Baird. During Ms.
Baird's treatment of T.M., she allegedly engaged in
practices that were both contrary to commonly-accepted
treatment protocol and expressly rejected by the profession.
As a result of Ms. Baird's treatment, false allegations
of sexual abuse were levied against Mr. Mower.
3 Mr. Mower sued Ms. Baird and The Children's Center
(collectively, the defendants) for the harm he suffered as a
result of T.M.'s treatment. The defendants moved to
dismiss these claims under rule 12(b)(6) of the Utah Rules of
Civil Procedure. The district court granted the
defendants' motion on the grounds that therapists
don't have "a duty of care to potential sexual
abusers when treating the alleged victim."
4 Underlying the district court's decision are two issues
of first impression: (1) whether a treating therapist working
with a minor child owes a traditional duty of reasonable care
to a nonpatient parent to refrain from giving rise to false
memories or false allegations of sexual abuse by that parent;
and, if so, (2) whether we should extend that duty to
exercising reasonable care when placing a nonpatient parent
at risk of severe emotional distress. Under the framework for
analyzing whether a traditional duty exists, established by
B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d
228, we determine that a duty to a nonpatient parent exists
but limit that duty to an affirmative act: the affirmative
act of recklessly giving rise to false memories or false
allegations of childhood sexual abuse by that parent.
Similarly, we conclude that a treating therapist owes a duty
to refrain from affirmatively causing the nonpatient parent
severe emotional distress by recklessly giving rise to false
memories or false allegations of childhood sexual abuse by
that parent. Accordingly, we reverse the district court's
dismissal of Mr. Mower's claims and remand for further
5 Because this case is before us on appeal of a motion to
dismiss for failure to state a claim, we, like the district
court, take the factual allegations in the complaint as true.
See Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 2,
243 P.3d 1275; Brown v. Div. of Water Rights of the
Dep't of Nat. Res., 2010 UT 14, ¶ 10, 228 P.3d
6 While married, Ms. and Mr. Mower had one daughter together,
T.M. In March 2011, Ms. Mower began bringing T.M., then
four-and-a-half years old, to The Children's Center to
see Ms. Baird, a Licensed Clinical Social Worker. She did
this without Mr. Mower's knowledge or consent.
7 By the end of T.M.'s initial intake assessment, Ms.
Baird allegedly assumed, based on information provided by Ms.
Mower and Ms. Baird's observation of T.M., that T.M. had
been sexually abused by Mr. Mower. Because Ms. Baird assumed
that sexual abuse had likely occurred, she called the
Division of Child and Family Services (DCFS) to make a
report. DCFS told Ms. Baird that the information didn't
presently warrant a report but asked her to continue to
8 According to established guidelines regarding treatment for
allegations of potential sexual abuse,  Ms. Baird should
have ended all therapy and allowed a forensic interviewer (a
role for which Ms. Baird wasn't trained) to take over to
determine if sexual abuse had occurred. Ms. Baird, however,
purportedly decided to act in the capacity of a combined
therapist and investigator and continued with her
therapy/interview sessions until October 2012. Ms. Baird
allegedly conducted these sessions with methods that were
tainted by confirmatory bias, diagnostic suspicion bias, and
socially desired responses, and were therefore unreliable.
She repeatedly asked T.M. questions "designed to
corroborate claims of sexual abuse" and "that
further reinforced the tainting of TM's memory."
This type of questioning creates a high risk that a child
will "confuse what she has heard through repeated
questioning as something she actually experienced."
Compounding this problem, Ms. Baird failed to electronically
record the initial sessions or take adequate notes of the
questions and answers given, which might have made it
possible to later determine the accuracy of T.M.'s
9 During Ms. Baird's treatment of T.M., The
Children's Center purportedly provided little to no
training, supervision, or oversight. Ms. Baird had "no
knowledge of or training in false memory, confirmatory bias,
diagnostic suspicion bias, or social desirability
responses." Ms. Baird disregarded standardized test
results when diagnosing T.M., kept insufficient records of
the sessions, repeatedly questioned T.M. about the same
events, and served an inappropriate dual role: therapist for
T.M. and investigator for DCFS.
10 Mr. Mower first found out about T.M.'s therapy from
papers Ms. Mower filed in their divorce proceedings in summer
2012. Also in 2012, based at least in part upon Ms.
Baird's interviews with T.M., DCFS made a
"supported" finding of sexual abuse against Mr.
Mower. Mr. Mower challenged that finding in juvenile court,
resulting in DCFS changing the finding from
"supported" to "unsupported." The
juvenile court then found the allegations
11 Ms. Baird's treatment allegedly damaged the healthy
parent-child relationship Mr. Mower and T.M. once enjoyed.
Additionally, the false allegations of sexual abuse have
harmed and stigmatized Mr. Mower's reputation. Mr. Mower
has also allegedly suffered significant emotional turmoil and
pain as a result of the defendants'
12 As a consequence, Mr. Mower filed this lawsuit against the
defendants for the harm he allegedly suffered as a result of
T.M.'s treatment, asserting causes of action for (1)
medical malpractice/negligence against The Children's
Center, (2) medical malpractice/negligence against Ms. Baird,
and (3) respondeat superior against The Children's
Center. The defendants filed a motion to dismiss
these claims under rule 12(b)(6) of the Utah Rules of Civil
Procedure. The district court granted the defendants'
motion, holding that therapists don't have a duty
"to potential sexual abusers when treating the alleged
13 Mr. Mower appeals this decision. Utah Code section
78A-3-102(3)(j) gives us jurisdiction.
14 "[W]hether a 'duty' exists is a question of
law . . . ." Weber ex rel. Weber v. Springville
City, 725 P.2d 1360, 1363 (Utah 1986) (citation
omitted). We review questions of law "under a
correctness standard." St. Benedict's Dev. Co.
v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah
1991) (citations omitted).
15 The district court dismissed this case on the grounds that
a treating therapist owes no duty of care "to potential
sexual abusers when treating the alleged victim." If
such a duty does exist, the parties to this action disagree
about whether it includes a duty to not affirmatively cause
severe emotional harm. We must therefore determine whether
Ms. Baird did in fact owe Mr. Mower a duty and, if so,
whether it extends to emotional harm. We begin by determining
that Ms. Baird owes Mr. Mower a limited traditional duty.
Next, to help contextualize the disagreement between the
parties, we discuss some general principles of negligence for
legal context and the development of negligent infliction of
emotional distress law in Utah and around the country. Then
we consider whether we should adopt a limited duty similar to
that provided in section 47(b) of the Restatement (Third)
of Torts and, if so, what the appropriate test would be.
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 47(b) (Am. Law Inst. 2012). And, after
concluding that a limited duty test should exist, we go on to
determine whether a limited emotional distress duty also
TREATING THERAPISTS OWE A TRADITIONAL DUTY TO NOT
AFFIRMATIVELY ACT IN A MANNER THAT RECKLESSLY CAUSES PHYSICAL
HARM TO NONPATIENT PARENTS OR THEIR PROPERTY IN THE
THERAPIST'S TREATMENT OF THE PARENT'S MINOR CHILD FOR
ALLEGED SEXUAL ABUSE
16 The threshold question in a negligence claim is whether
the defendant owed a duty to the plaintiff. See B.R. ex
rel. Jeffs v. West, 2012 UT 11, ¶ 5 n.2, 275 P.3d
228. "An actor ordinarily has a duty to exercise
reasonable care when the actor's conduct creates a risk
of physical harm." Id. ¶ 21 n.11 (quoting
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 7(a) (Am. Law Inst. 2012)). A duty to
act with reasonable care "must be determined as a matter
of law and on a categorical basis for a given class of tort
claims." Id. ¶ 23 (citations omitted).
"We therefore analyze each pertinent factor in the duty
analysis 'at a broad, categorical level for a class of
defendants' without focusing on the particular
circumstances of a given case." Scott v. Universal
Sales, Inc., 2015 UT 64, ¶ 33, 356 P.3d 1172
(quoting Jeffs, 2012 UT 11, ¶ 23).
17 In Jeffs, we established a five-factor test for
determining "whether a defendant owes a duty to a
(1) whether the defendant's allegedly tortious conduct
consists of an affirmative act or merely an omission;
(2) the legal relationship of the parties;
(3)the foreseeability or likelihood of injury;
(4)"public policy as to which party can best bear the
loss occasioned by the injury"; and (5) "other
general policy considerations."
Jeffs, 2012 UT 11, ¶ 5 (citations omitted).
"Not every factor is created equal, however. . . .
[S]ome factors are featured heavily in certain types of
cases, while other factors play a less important, or
different, role." Id. The first two factors are
considered "plus" factors used to determine whether
a duty would normally exist. See id. The final three
factors are considered "minus" factors "used
to eliminate a duty that would otherwise exist."
18 In this case, we're required to determine whether a
treating therapist owes a duty of care to a nonpatient parent
in the treatment of the parent's minor child for
potential sexual abuse alleged against that
parent. Applying the Jeffs factors, we
find that a treating therapist does owe such a duty, albeit a
limited one, to nonpatient parents.
The Jeffs "Plus" Factors Favor Creating a
19 When determining whether a duty exists under the
Jeffs factors, the two "plus" factors
"are interrelated". Id. ¶ 7. The
first factor stems from "[t]he long-recognized
distinction between acts and omissions-or misfeasance and
nonfeasance." Id. "Acts of misfeasance, or
active misconduct working positive injury to others,
typically carry a duty of care." Id. (citation
omitted) (internal quotation marks omitted). Conversely,
"[n]onfeasance- passive inaction, a failure to take
positive steps to benefit others, or to protect them from
harm not created by any wrongful act of the
defendant"-only gives rise to a duty when a special
legal relationship exists. Id. (citation omitted)
(internal quotation marks omitted).
20 In cases of misfeasance, the "plus" factor
analysis almost always rests on the first factor-the
affirmative misconduct creates a duty of care and a special
legal relationship isn't required. See id.
¶¶ 6-7, 10. If, however, a duty isn't
established under the first factor, as in cases of
nonfeasance, the second factor can be "used to impose a
duty where one would otherwise not exist." Id.
21 By providing therapy to a minor child, a treating
therapist may engage in "active misconduct" if he
or she "uses inappropriate treatment techniques or
inappropriately applies otherwise proper techniques."
Roberts v. Salmi, 866 N.W.2d 460');">866 N.W.2d 460, 474 (Mich. Ct.
App. 2014) [hereinafter Roberts I]; cf.
Scott, 2015 UT 64, ¶ 36 ("By placing inmates
in the community, the County engaged in 'active
misconduct' if its screening procedures were inadequate
to discover obvious dangers work-release participants might
pose to the public."). We're not asking whether a
treating therapist "has a duty to ensure that a
patient's allegations are true before reporting them or
to otherwise protect a patient's parents from potentially
false allegations of sexual abuse." Roberts I,
866 N.W.2d at 470. Rather, it's a question of
misfeasance-such as "the negligent use of therapeutic
techniques on a patient that actually cause the
patient to have a false memory of childhood sexual
abuse." Id. (citations omitted). Thus, this
isn't a case of passive inaction that results in an
injury to another; this conduct involves an affirmative act
that establishes that a duty would normally exist.
22 For this reason, a special legal relationship need not
exist for a treating therapist to owe a duty to a nonpatient
parent; the treating therapist's affirmative acts are
sufficient. But, as we explain below, while the
"minus" factors don't favor entirely
eliminating this duty to exercise reasonable care when
undertaking the affirmative act of providing therapy, they do
warrant limiting this duty to refraining from recklessly
giving rise to false memories or allegations of sexual abuse.
The Jeffs "Minus" Factors Weigh in Favor
of Creating a Limited Duty
23 The defendants and their amici ask us to conclude- based
mainly on policy considerations-that a treating therapist
doesn't owe a duty to anyone other than his or her
patient. We find no basis for categorically excluding all
treating therapists from liability for carelessly providing
therapy to a minor child in a manner that affirmatively harms
the nonpatient parent. Instead, we hold that such a duty
exists, but policy considerations advise limiting the duty to
a recklessness standard.
24 The foreseeability analysis for duty is distinct from that
for breach or proximate cause. Jeffs, 2012 UT 11,
¶ 24. "[F]oreseeability in [a] duty analysis is
evaluated at a broad, categorical level." Id.
¶ 25. This analysis focuses on "'the general
relationship between the alleged tortfeasor and the
victim' and 'the general foreseeability' of
harm" rather than "'the specifics of the
alleged tortious conduct' such as 'the specific
mechanism of the harm.'" Id. (quoting
Normandeau v. Hanson Equip., Inc., 2009 UT 44,
¶ 20, 215 P.3d 152).
25 Thus, "[t]he appropriate foreseeability question for
[a] duty analysis is whether a category of cases includes
individual cases in which the likelihood of some type of harm
is sufficiently high that a reasonable person could
anticipate a general risk of injury to others."
Id. ¶ 27. Here, the relevant category of cases
includes treating therapists who carelessly provide therapy
to a minor child patient for potential sex abuse in a manner
that injures the nonpatient parent through false allegations
or memories of sexual abuse. "And the foreseeability
question is whether there are circumstances within that
category in which [treating therapists] could foresee
injury." Id. We conclude there is.
26 There are undoubtedly circumstances within this category
which present highly foreseeable risks, such as a treating
therapist using rejected therapeutic methods that create a
significant likelihood of implanting false memories of abuse
into a minor child's mind or convincing a child to levy
false accusations of abuse. "It is indisputable that
being labeled a child abuser . . . often results in grave
physical, emotional, professional, and personal
ramifications." Hungerford v. Jones, 722 A.2d
478, 480 (N.H. 1998) (emphasis added) (citation omitted)
(internal quotation marks omitted). And it's certainly
reasonably foreseeable that a parent, upon learning of
allegations of sexual abuse committed against his or her
child by another person, might become violent and attack the
accused or the accused's property. Cf. United States
v. Kupfer, 68 Fed.Appx. 927, 930 (10th Cir. 2003) (the
defendant shot a man that "had allegedly sexually
assaulted [the] defendant's sister"); United
States v. Lofton, 776 F.2d 918, 919 (10th Cir. 1985)
(the defendant shot her husband while arguing about
allegations that he had sexually abused her
daughter). Such a reaction in this circumstance is
even more foreseeable given the importance of the
parent-child relationship and the emotions involved. Cf.
In re K.S., 737 P.2d 170, 172 (Utah 1987) ("The
parent-child relationship is constitutionally protected, and
termination of that relationship is a drastic measure . . .
." (citations omitted)); In re J.P., 648 P.2d
1364, 1373 (Utah 1982) ("[T]he most universal relation
in nature . . . [is] that between parent and child."
(second alteration in original) (citation omitted)); In
re P.L.L., 597 P.2d 886, 889 (Utah 1979) (recognizing
"our general reluctance to sever the natural
27 Because this category includes circumstances where a risk
of physical injury to nonpatient parents or their property is
reasonably foreseeable, the foreseeability factor doesn't
weigh against imposing a duty on treating therapists to
conduct a minor child's therapy in a manner that
"refrain[s] from affirmatively causing injury to
nonpatient" parents. Jeffs, 2012 UT 11,
Best Bears the Loss
28 The next factor requires determining which party is in the
best "position to bear the loss occasioned by the
injury." Id. ¶ 29 (citation omitted)
(internal quotation marks omitted). "The parties'
relative ability to 'bear the loss' has little or
nothing to do with the depth of their pockets."
Id. Instead, the determination is based on
whether the defendant is best situated to take reasonable
precautions to avoid injury. Typically, this factor would cut
against the imposition of a duty where a victim or some other
third party is in a superior position of knowledge or control
to avoid the loss in question. . . . because [the defendant]
lacks the capacity that others have to avoid injury by taking
Id. ¶ 30 (footnotes omitted).
29 When sexual abuse has actually occurred, the treating
therapist isn't in the best position to avoid the
potential harms. The third-party abuser is in a better
position to avoid the potential harms, namely by not
committing the abuse in the first place. But the same cannot
be said when memories or allegations of "abuse"
emanate from the practices or techniques in the therapy
sessions themselves. Because only the therapist has control
over the instrumentality that creates the nonexistent
"abuse," treating therapists are "in the best
position to avoid the harm caused by the introduction of
false memories." Roberts I, 886 N.W.2d at 472.
The therapist "alone is responsible for the methods used
in treatment." Id. "[T]he patient must
trust that the [therapist] will pursue a course of treatment
guided by competent professional judgment" and the
parents "have a right to expect that a [therapist] will
not cause the patient to have false memories of childhood
sexual abuse." Id. at 472-73 (citation
omitted). Thus, this factor doesn't weigh against the
imposition of a duty in circumstances (such as those alleged
in this case) where the alleged abuse has not in fact
occurred. In combination with the policy considerations set
forth below, this factor supports limiting a treating
therapist's duty to that of not affirmatively giving rise
to false memories or false allegations of sexual abuse by the
General Policy Considerations
30 Finally, the defendants and their amici raise several
general policy arguments to counter the imposition of a duty
on treating therapists. These policy considerations must be
analyzed against this backdrop:
Concluding that no duty exists means that, "for certain
categories of cases, defendants may not be held accountable
for damages they carelessly cause, no matter how unreasonable
their conduct." But recognizing a duty does not itself
mean that a defendant will incur liability; a plaintiff must
still prove the other elements of negligence (breach of the
duty, causation, and damages).
Guerra v. State, 348 P.3d 423, 429 (Ariz. 2015)
(Bales, C.J., dissenting) (citations omitted).
31 We find the policy considerations raised are insufficient
to reject a duty on a broad categorical basis. However, the
policy considerations are sufficient to warrant limiting the
duty to conducting treatment in a manner that doesn't
recklessly give rise to false memories or allegations of
childhood sexual abuse.See Restatement (Third) of
Torts: Liability for Physical and Emotional Harm § 7(b)
("In exceptional cases, when an articulated
countervailing principle or policy warrants denying or
limiting liability in a particular class of cases, a court
may decide that the defendant has no duty or that the
ordinary duty of reasonable care requires
modification."); cf. ...