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 DENYING DEFENDANT'S
MOTION FOR PARTIAL SUMMARY JUDGMENT AND REQUEST FOR
N. Parrish United States District Court Judge
March 23, 2018, the court issued a Memorandum Decision and
Order (ECF No. 104) granting in part defendant Life Time
Fitness's Motion for Partial Summary Judgment (ECF No.
67). The court granted summary judgment in favor of Life Time
on plaintiff Jennifer Ngatuvai's claim for intentional
infliction of emotional distress. However, it stayed the
remainder of the motion pending certification of certain
questions to the Utah Supreme Court.
this court issued the order certifying those questions, the
Utah Supreme Court issued an opinion in Mower v.
Baird, 422 P.3d 837 (Utah 2018). The court's opinion
in Mower directly addresses the primary question
this court had identified for certification. Consequently,
this court invited the parties to submit supplemental
briefing applying the standard enunciated in Mower
to Ms. Ngatuvai's claim for negligent infliction of
emotional distress, and to further address the propriety of
certifying the other previously identified issue. Now, after
carefully reviewing Mower and the parties'
supplemental briefing, the court concludes that certification
is no longer necessary, and denies Life Time's Motion for
Partial Summary Judgment as it relates to Ms. Ngatuvai's
negligent infliction of emotional distress claim.
Ngatuvai is K.N.'s mother. 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.
August 18, 2014, Ms. Ngatuvai left K.N. (then
three-and-a-half years old) 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 retrieve 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. After speaking with
Mr. Cutler, Ms. Ngatuvai and K.N. left Life Time to do some
shopping before returning home. Over the next half hour, 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, 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 diagnosed 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 a claim for negligent infliction of
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)).
It is the nonmoving party that 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 claim for negligent infliction of
emotional distress. It makes three arguments. First,
Ms. Ngatuvai cannot recover because Life Time did not owe her
a traditional duty under B.R. ex rel. Jeffs v. West,
275 P.3d 228 (Utah 2012). Second, Ms. Ngatuvai
cannot recover because Life Time did not owe her a special
duty under Mower. And third, Ms. Ngatuvai
cannot recover because she has not provided evidence of
severe emotional distress. The court first summarizes the Utah
Supreme Court's holding in Mower. Then it
addresses each of Life Time's arguments.
The Mower Standard
first recognized a cause of action for negligent infliction
of emotional distress in 1988. See Johnson v.
Rogers, 763 P.2d 771 (Utah 1988). In Johnson, a
majority of the Utah Supreme Court agreed that the test for
determining liability would be as set forth in § 313 of
the Second Restatement of Torts and the accompanying
comments. See Id. At 785 (Zimmerman, J., joined by
three other justices, concurring in part).
313 of the Second Restatement requires that an individual
seeking recovery for emotional harm caused solely by the harm
or peril of a third person must themselves have been
subjected to an unreasonable risk of bodily harm. Restatement
(Second) of Torts § 313 (Am. Law Inst. 1965). Courts in
Utah and elsewhere frequently refer to this requirement as
the “zone-of-danger” test. Because Ms. Ngatuvai
faced no bodily harm, she cannot satisfy the zone-of-danger
requirement under the Second Restatement.
in July of this year, the Utah Supreme Court announced in
Mower that it was “time to expand [Utah's]
recovery for negligent infliction of emotional distress in
very limited circumstances.” Mower, 2018 422
P.3d at 856. Specifically, the court held that “there
are certain types of relationships, activities, and
undertakings that go to the core of another person's
emotional well-being and security” and that those
engaged in such relationships, activities, or undertakings
“have a duty to refrain from causing the other person
severe emotional distress.” Id.
holding, the court largely adopted § 47(b) of the Third
Restatement of Torts. See Restatement (Third) of
Torts § 47(b) (Am. Law Inst. 2012). But the court
deviated from section 47(b) in two ways: (1) under
Mower, Utah retains the requirement that plaintiffs
show “severe” emotional distress-not
“serious” emotional distress, as contemplated by
the Third Restatement; and (2) under Mower, Utah
does not recognize a duty to refrain from causing severe
emotional distress “when there wouldn't otherwise
be a traditional duty of reasonable care.” Id.
the Mower standard, the expanded emotional distress
duty analysis entails a two-step consideration: “(1)
Does the defendant owe a traditional duty of reasonable care
to the plaintiff?; and (2) if so, is the relationship,
activity, or undertaking of the type that warrants a special,
limited duty to refrain from causing severe emotional
distress?” Id. Both questions must answered in
the affirmative before Utah law imposes a duty. In analyzing
the first question, the court “follows the five-factor
test . . . established in B.R. ex rel. Jeffs v.
West, 2012 UT 11, ¶ 5, 275 P.3d 228.”
Id. The second question requires its own three-prong
analysis: “(1) Does the relationship, activity, or
undertaking necessarily implicate the plaintiff's
emotional well-being?; (2) Is there an especially likely risk
that the defendant's negligence in the course of
performing obligations pursuant to such relationship,
activity, or undertaking will result in severe emotional
distress?; and (3) Do general public policy considerations
warrant rejecting a limited emotional distress duty where
prongs one and two would otherwise find one to exist?”
Id. at 856-57 (internal citations, quotation marks,
and alterations omitted). To satisfy Mower's
second question, all three prongs must be satisfied.
Id. at 857.
Appropriate Level of Categorical Analysis
both Mower questions “must be determined as a
matter of law and on a categorical basis for a given class of
tort claims[, ]” the court must first decide what
categorical level of analysis is appropriate. See
Id. at 856 (“This new, limited emotional distress
duty analysis should still be completed in the same manner as
a traditional duty analysis-on a categorical level.”).
Life Time suggests that the Mower steps should be
applied to Life Time as a fitness center, whereas Ms.
Ngatuvai urges they should be applied to Life Time as a
court finds Ms. Ngatuvai's position more compelling. A
categorical analysis does not, as Life Time seems to suggest,
require the court to operationalize the class of defendants
at the highest level of abstraction. Indeed, in
Mower, the categorical level articulated by the Utah
Supreme Court was therapists “treating a child for
potential sexual abuse” rather than therapists treating
a child generally. Life Time provides no reason why its
provision of fitness services must trump its provision of
child care services, and the court cannot see the logic in
treating Life Time's child care operation-the use of
which requires an additional fee-any differently than a child
care operation not owned by a fitness center. As a result,
Life Time's request that the court simply ignore its
provision of child care services and instead focus on its
status as a fitness center is unconvincing.
the court conducts each of the multi-pronged duty analyses
prescribed by Mower at the categorical level of a
child care provider vis-à-vis the parents of a child
under the care of that provider.
Whether Life Time Owed Ms. Ngatuvai a Traditional
step one requires the court to consider whether Life Time
owed a traditional duty of reasonable care to Ms. Ngatuvai.
As explained above, the Jeffs analysis here must be
conducted at the categorical level of whether a childcare
center owes a duty to the parents of a minor in its care.
established a five-factor test for determining whether a
defendant owes a traditional duty of care to a plaintiff.
Those factors are:
(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.
275 P.3d at 230 (internal citations and quotation marks
omitted). The first two factors are “plus”
factors that determine whether a duty would normally exist.
See id. The last three factors are
“minus” factors that may eliminate a duty that
would otherwise exist. See id.
The Jeffs “Plus” Factors Establish a
Whether Life Time's allegedly tortious conduct consisted
of an affirmative act or an omission
of torts has long recognized the distinction between acts and
omissions. Indeed, the difference between misfeasance and
nonfeasance is critical “and is perhaps the most
fundamental factor courts consider when evaluating
duty.” Id. at 231. On one hand, active
misconduct typically carries a duty of care. See Id.
But passive inaction does not, absent some special legal
Time argues that its alleged failure to supervise K.N. is not
an act but an omission. The court disagrees. In
Mower, the Utah Supreme Court explained that
nonfeasance is “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.” 2018 WL 3322749, at *4 (emphasis
added). The italicized language is intended to forestall the
exact argument Life Time makes here. The animating principle
is that a tortfeasor may not affirmatively undertake to
perform some service, and then, by failing to do so
with proper precautions, transform such a failure into an
omission that does not implicate a duty. The Utah Supreme
Court has made clear that “[a]ctive misfeasance . . .
is not confined to situations where an affirmative act
directly causes the harm to the plaintiff.” Cope v.
Utah Valley State College, 342 P.3d 243 (Utah 2014)
(pointing to the misfeasance of “a surgeon who fails to
sterilize instruments, causing an infection”).
the harm that befell K.N. is alleged to arise from the
wrongful acts of the defendant: inadequate staffing and
supervision in the performance of a service that Life Time
affirmatively undertook. As such, the alleged conduct is
properly framed as misfeasance.
The legal relationship of the parties
first two duty factors are interrelated. “A special
legal relationship between the parties . . . acts as a
duty-enhancing, ‘plus' factor[, ]” which will
sometimes even give rise to an otherwise non-existent duty in
the omission context. Jeffs, 275 P.3d at 231. But
“[a] special relationship is not typically required to
sustain a duty of care to those who could foreseeably be
injured by the defendant's affirmative acts.” Here,
Life Time's affirmative acts (i.e., the first
Jeffs factor) are sufficient to create a duty,
whether or not there also exists a special legal relationship
between a child care provider and the parents of minors in
The Jeffs “Minus” Factors Do Not