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Mower v. Nancy Baird and Children's Center

Supreme Court of Utah

July 5, 2018

Thomas E. Mower, Appellant,
Nancy Baird and The Children's Center, Appellees.

          On 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 appellees

          Troy 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 Adolescent Psychiatry

          Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Judge Pettit joined.

          Due to 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 not participate.




         ¶ 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 proceedings.[1]


         ¶ 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 747.

         ¶ 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 gather information.

         ¶ 8 According to established guidelines regarding treatment for allegations of potential sexual abuse, [2] 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 statements.

         ¶ 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 "unsubstantiated."

         ¶ 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' negligence.[3]

         ¶ 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.[4] 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 victim."

         ¶ 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 exists.


         ¶ 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 plaintiff":

(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." Id.

         ¶ 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.[5] Applying the Jeffs factors, we find that a treating therapist does owe such a duty, albeit a limited one, to nonpatient parents.

         A. The Jeffs "Plus" Factors Favor Creating a Duty

         ¶ 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.[6] 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. ¶ 5.

         ¶ 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];[7] 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.

         B. 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.

         1. Foreseeability

         ¶ 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.[8] 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).[9] 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 parent-child relationship").[10]

         ¶ 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, ¶ 28.

         2. Who 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 reasonable precautions.

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 plaintiff parent.

         3. 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.[11]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. ...

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