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

United States District Court, D. Utah

December 11, 2018

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


          Jill N. Parrish United States District Court Judge

         On 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.

         Before 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.


         Jennifer 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.

         On 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.

         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. 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.

         Following 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 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 a claim for negligent infliction of emotional distress.


         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)). 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.


         Life 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.[1] The court first summarizes the Utah Supreme Court's holding in Mower. Then it addresses each of Life Time's arguments.

         A. The Mower Standard

         Utah 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).

         Section 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.

         However, 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.

         In so 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.

         Under 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.

         B. Appropriate Level of Categorical Analysis

         Because 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 childcare center.

         The 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.

         Accordingly, 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.

         C. Whether Life Time Owed Ms. Ngatuvai a Traditional Duty

         Mower 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.

         Jeffs 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.

         1. The Jeffs “Plus” Factors Establish a Cognizable Duty

         a. Whether Life Time's allegedly tortious conduct consisted of an affirmative act or an omission

         The law 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 relationship.

         Life 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”).

         Here, 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.

         b. The legal relationship of the parties

         The 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 its care.

         2. The Jeffs “Minus” Factors Do Not Militate ...

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