Erickson v. Canyons School District

2020 UT App 91

THE UTAH COURT OF APPEALS

JUEL ERICKSON,

Appellee,

v.

CANYONS SCHOOL DISTRICT,

Appellant.

Opinion

No. 20190376-CA

Filed June 11, 2020

Third District Court, Salt Lake Department

The Honorable Mark S. Kouris

No. 190900333

Sean D. Reyes and Joshua D. Davidson,

Attorneys for Appellant

Wesley Felix and Brenda Weinberg,

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which

JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

ORME, Judge:

¶1 Canyons School District (the School District) seeks

interlocutory review of the district court’s denial of its motion to

dismiss Juel Erickson’s complaint against it. The court denied the

motion because it concluded that it was too early to determine

whether Erickson’s injuries resulted from a battery, which

determination would have necessitated dismissal of the case on

governmental immunity grounds. Because there may be facts

that Erickson could prove establishing that the student who

injured her lacked the necessary intent for his action to constitute

battery, we affirm.

Erickson v. Canyons School District

BACKGROUND 1

¶2 Erickson was a student at a high school within the School

District’s boundaries. On February 24, 2017, Erickson attended a

school assembly held in the high school’s gym. Before the

assembly, a supervisor confiscated a home-made flag, fastened

to a pole, from junior class officers and placed it on the east side

of the gym. When a student retrieved the flagpole, the

supervisor instructed another student to reconfiscate it. That

student placed the confiscated flagpole underneath the

bleachers, from where yet another student (Student) retrieved it.

Student then climbed to the top of the bleachers and threw the

flagpole into the crowd of students below, striking Erickson in

the head and knocking her unconscious. No high school

employee called an ambulance or provided Erickson with any

medical care. Erickson thereafter “suffer[ed] from neck injuries

and post-concussive symptoms.”

¶3 In 2019, Erickson filed a complaint against the School

District, the high school, the supervisor, and the State of Utah.

The complaint alleged negligence, gross negligence, and

vicarious liability against the defendants for “failing to secure

the Flag Pole and keep other students from reaching it, failing to

adequately supervise their students, and failing to provide

medical assistance upon injury.”

¶4 The defendants moved to dismiss Erickson’s complaint

pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure,

arguing that under the Governmental Immunity Act of Utah, see

1. “On appeal from a motion to dismiss under Utah Rule of Civil

Procedure 12(b)(6), we review the facts only as they are alleged

in the complaint. As a result, we accept the factual allegations in

the complaint as true and consider all reasonable inferences to be

drawn from those facts in a light most favorable to the plaintiff.”

Hall v. Department of Corr., 2001 UT 34, ¶ 2, 24 P.3d 958

(quotation simplified).

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Erickson v. Canyons School District

Utah Code Ann. §§ 63G-7-101 to -904 (LexisNexis 2019), 2 “a high

school cannot be named as a party in a lawsuit; [Erickson]

cannot pursue an action individually against [the supervisor], an

employee of [the School District]”; Erickson “has asserted no

facts to support a claim against the State of Utah”; and—the

issue relevant to the current appeal—the School District could

not be sued because “governmental entities are immunized

against claims arising from battery.” Erickson did not oppose the

motion as concerned the supervisor and the State.3 But in

opposing the motion as to the School District, Erickson argued

that dismissal was improper because the tort of battery requires

that the actor “intend the action and its harmful or offensive

consequences,” and there still remained “a question of fact as to

what [Student] intended when throwing the flag pole into the

crowd of students.” Analogizing to an example where “a person

throws a football to a friend and that football strikes a

bystander,” she argued that “it is more likely than not that

[Student] intended that the flag pole would be caught by his

friends who were urging him to throw it to them,” and “[i]f

these are indeed the facts, then [Student’s] action does not

constitute battery.”

¶5 The district court denied the motion to dismiss “on the

grounds that based upon the inferences that favor [Erickson], it

is too early in the case to grant the motion on the issue of

battery.” The School District then petitioned for permission to

appeal from an interlocutory order, see Utah R. App. P. 5(a),

2. Because the statutory provisions in effect at the relevant time

do not differ in any way material to our analysis from those now

in effect, we cite the current version of the Utah Code for

convenience.

3. Erickson did argue against dismissal of the high school from

her suit, which opposition ultimately proved unsuccessful.

Because the high school’s dismissal is not at issue in this appeal,

we do not discuss it further.

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Erickson v. Canyons School District

which the Utah Supreme Court transferred to this court for

resolution, see id. R. 42. We granted the petition.

ISSUE AND STANDARD OF REVIEW

¶6 The School District challenges the district court’s denial of

its motion to dismiss. “The propriety of a trial court’s decision to

grant or deny a motion to dismiss under rule 12(b)(6) [of the

Utah Rules of Civil Procedure] is a question of law that we

review for correctness.” Torgerson v. Talbot, 2017 UT App 231,

¶ 7, 414 P.3d 504 (quotation simplified). Dismissal of a complaint

is proper “only if it is clear from the allegations that the

[plaintiff] would not be entitled to relief under the set of facts

alleged or under any facts it could prove to support its claim.” Id.

(emphasis added). Accordingly, on review “we accept all facts

alleged as true, and indulge all reasonable inferences in favor of

the [plaintiff].” Id. (quotation simplified).

ANALYSIS

¶7 The Governmental Immunity Act of Utah waives

governmental immunity “as to any injury proximately caused by

a negligent act or omission of an employee committed within the

scope of employment,” Utah Code Ann. § 63G-7-301(2)(i)

(LexisNexis 2019), but exempts from this waiver injuries that

“arise[] out of or in connection with, or result[] from,” among

other things, “battery,” id. § 63G-7-201(4)(b). 4 See Sanders v.

4. Courts apply a three-part test when determining whether a

governmental entity is immune from suit under the

Governmental Immunity Act of Utah. They (1) “examine

whether the activity undertaken is a governmental function,”

(2) “determine whether governmental immunity was waived for

the particular activity,“ and (3) “look to see whether immunity

has been reinstated through a statutory exception to the

(continued…)

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Leavitt, 2001 UT 78, ¶ 29, 37 P.3d 1052 (“[I]mmunity is retained

under the Utah Governmental Immunity Act if an assault or

battery is involved, regardless of who the tortfeasor is, and even

if the assault or battery occurs as the result of the negligence of

the state or state agent.”).

¶8 The intentional tort of battery “was designed to protect

people from unacceptable invasions of bodily integrity.” Wagner

v. State, 2005 UT 54, ¶ 57, 122 P.3d 599. See 1 Dan B. Dobbs et al.,

The Law of Torts § 33, at 82 (2d ed. 2011) [hereinafter Dobbs]

(“Battery today vindicates the plaintiff’s rights of autonomy and

self-determination, her right to decide for herself how her body

will be treated by others, and to exclude their invasions as a

matter of personal preference, whether physical harm is done or

not.”). For purposes of defining the elements of battery, Utah has

adopted the Second Restatement of Torts, see Wagner, 2005 UT

54, ¶ 16, which provides that a person commits battery against

another “‘if (a) he acts intending to cause a harmful or offensive

contact with the person of the other or a third person, or an

imminent apprehension of such a contact, and (b) a harmful

contact with the person of the other directly or indirectly

results,’” id. (quoting Restatement (Second) of Torts § 13 (Am.

Law Inst. 1965)). In simpler terms, for a contact to constitute

battery, it must be (1) deliberately made and (2) harmful or

offensive in a legal sense. Id. ¶ 19.

¶9 At the complaint stage of this litigation, the question is

whether Erickson could prove a set of facts consistent with her

complaint that would preclude dismissal on governmental

(…continued)

immunity waiver.” Larsen v. Davis County School Dist., 2017 UT

App 221, ¶ 10, 409 P.3d 114 (quotation simplified). The third

prong is the only one at issue in this appeal, i.e., whether

Erickson’s complaint conclusively alleges the tort of battery,

thereby exempting the School District from the waiver of

governmental immunity.

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immunity grounds. In other words, mindful of the facts alleged

in the complaint, we inquire whether there is at least one

scenario in which Student did not batter Erickson. If the answer

is in the affirmative, the district court correctly denied the School

District’s rule 12(b)(6) motion to dismiss. See America West Bank

Members, LC v. State, 2014 UT 49, ¶ 13, 342 P.3d 224 (“A dismissal

is a severe measure and should be granted by the trial court only

if it is clear that a party is not entitled to relief under any state of

facts which could be proved in support of its claim.”) (quotation

simplified). Cf. Sanjuan v. American Board of Psychiatry

& Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994) (“One pleads a

‘claim for relief’ by briefly describing the events. At this stage the

plaintiff receives the benefit of imagination, so long as the

hypotheses are consistent with the complaint.”).

¶10 Here, the second prong of the battery inquiry—that the

contact is harmful or offensive at law—is readily met, even at

this early stage. It is uncontested and, indeed, inarguable that a

strike to the head by a flagpole is harmful because “no

reasonable person would consent” to such a contact. Wagner,

2005 UT 54, ¶ 51. See id. (“A harmful or offensive contact is

simply one to which the recipient of the contact has not

consented either directly or by implication.”). The resolution of

this appeal therefore turns on the first prong—whether a

provable set of facts exists under which Student did not intend

for the flagpole to come into contact with Erickson. Because we

agree with Erickson that at least one scenario exists in which

Student lacked the requisite intent, namely where Student threw

the flagpole intending for it to be caught by friends while not

substantially certain that the flagpole would strike an

unsuspecting student, the district court properly denied the

School District’s 12(b)(6) motion to dismiss. 5

5. The School District argues that Erickson’s assertion that

Student may have intended to throw the flagpole to friends

below should be rejected because her “complaint is devoid of

(continued…)

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(…continued)

any such allegations.” Although the School District

acknowledges that, “at the motion to dismiss stage, Erickson is

entitled to the benefit of all reasonable inferences from the facts

alleged,” it argues that “she is not entitled to unreasonable

inferences based on pure speculation or conjecture.” But other

than noting that Erickson did not allege that specific scenario in

her complaint, the School District does not explain how such an

inference is unreasonable. Erickson’s complaint alleges that

“[S]tudent climbed to the top of the bleachers and threw the Flag

Pole into the crowd of students below, . . . str[iking] Erickson in

the head.” The complaint is entirely silent as to Student’s intent

and motivations. And in light of other allegations in the

complaint stating that more than one student attempted to

retrieve the confiscated flagpole, it is reasonable to infer at the

motion-to-dismiss stage that Student may well have thrown the

flagpole into the crowd of students intending for a friend to

catch it. See America West Bank Members, LC v. State, 2014 UT 49,

¶ 13, 342 P.3d 224 (“Rule 8(a) of the Utah Rules of Civil

Procedure sets a liberal standard for complaints, requiring only

that a complaint contain a short and plain: (1) statement of the

claim showing that the party is entitled to relief; and (2) demand

for judgment for specified relief.”) (quotation simplified);

Zisumbo v. Ogden Reg’l Med. Center, 2015 UT App 240, ¶ 11, 360

P.3d 758 (“Even if a complaint is vague, inartfully drafted, a

bare-bones outline, or not a model of specificity, the complaint

may still be adequate so long as it can reasonably be read as

supporting a claim for relief, giving the defendants notice of that

claim.”) (quotation simplified). See also Torgerson v. Talbot, 2017

UT App 231, ¶ 7, 414 P.3d 504 (“A district court should grant a

motion to dismiss only if it is clear from the allegations that the

non-moving party would not be entitled to relief under the set of

facts alleged or under any facts it could prove to support its claim.”)

(emphasis added); Larsen v. Davis County School Dist., 2017 UT

App 221, ¶ 9, 409 P.3d 114 (same).

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¶11 “‘The word ‘intent’ is used . . . to denote that the actor

desires to cause the consequences of his act, or that he believes

that the consequences are substantially certain to result from it.’”

Id. ¶ 22 (quoting Restatement (Second) of Torts § 8A) (emphasis

omitted) (emphasis added). See also id. ¶ 26 (stating that “[i]t is

the consequential contact with the other person,” not the act or

movement itself, “that the actor must either intend or be

substantially certain would result”). Whether the actor intended

the contact to be harmful or offend is immaterial. Rather, the

focus is on whether the actor intended to make a contact that is

harmful or offensive at law. Id. ¶ 29. Because the focus of the

intent analysis is on whether the actor desired the consequential

contact or knew that it was substantially certain to result, it is

necessarily a subjective inquiry, Dobbs § 29, at 75, which is

inherently fact-intensive, cf. Rocky Ford Irrigation Co. v. Kents Lake

Reservoir Co., 2019 UT 31, ¶ 68 (stating that subjective intent

“implicates fact-intensive questions”). Thus, “the legal outcome

[for the same act] will depend on the actor’s surroundings and

the actor’s state of mind.” W. Page Keeton et al., Prosser and

Keeton on the Law of Torts § 8, at 35 (5th ed. 1984) [hereinafter

Prosser]. For example, a person who pulls the trigger of a gun

intending to shoot another and succeeds in wounding him is

liable for battery absent some defense or justification. On the

other hand, a hunter who pulls the trigger intending to shoot a

bird and instead hits a person of whom the hunter was unaware

is not liable for battery, although the act may constitute

actionable negligence. Wagner, 2005 UT 54, ¶ 26.

¶12 Under the scenario Erickson suggests, 6 if Student threw

the flagpole intending for it to be caught by other students who

were urging him to throw it to them, he clearly did not mean for

the flagpole to strike Erickson. But our inquiry relative to this

6. It may well be that there are other scenarios that would

likewise be inconsistent with Student’s act being a battery. We

focus on the one Erickson advances because it is the one that has

received the parties’ attention in briefing.

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specific scenario does not end here. An actor acts intentionally if

he “desires to cause the consequences of his act, or [if] he believes

that the consequences are substantially certain to result from it.” Id.

¶ 22 (emphasis added) (quotation otherwise simplified). See

Restatement (Second) of Torts § 8A cmt. b (“If the actor knows

that the consequences are certain, or substantially certain, to

result from his act, and still goes ahead, he is treated by the law

as if he had in fact desired to produce the result.”). 7 Thus,

although Student might not have actually desired to strike

7. The Utah Supreme Court in Wagner embraced the Restatement

section and quoted it verbatim. Unfortunately, in a couple

of instances in the opinion, the Court used the

phraseology “substantially likely” as well as the Restatement’s

language “substantially certain.” See Wagner v. State, 2005 UT 54,

¶¶ 22, 25–26, 122 P.3d 599. The Court never said the two meant

the same thing, and we do not think that the inconsistent usage

was a subtle effort to equate the two. Indeed, the focus of Wagner

was not on this aspect of the intent requirement of battery,

namely what mental state short of absolute intent might qualify

as intent for purposes of battery. Wagner’s focus was instead on

whether it was the “consequential contact,” not merely the act

itself, that had to be intended. Id. ¶¶ 17–18, 26. The Court has

not, so far as we can discern, addressed substantial certainty in

the exact context now before us, but it has “adopted the Second

Restatement of Torts to define the elements of [battery],

including the element of intent,” id. ¶ 16, and the Restatement

clearly distinguishes substantial certainty from substantial

likelihood, associating the former with intentional torts such as

battery and the latter with recklessness, see Restatement (Second)

of Torts § 500 cmt. f (Am. Law Inst. 1965) (“[A] strong

probability is a different thing from the substantial certainty

without which [the actor] cannot be said to intend the harm in

which his act results.”). The Court’s occasional use in Wagner of

the term “substantially likely” when discussing intent appears to

be inadvertent rather than deliberate, and we attach no

jurisprudential significance to the inconsistency.

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Erickson, he would have nonetheless committed battery so long

as, mindful of the weight of the flagpole and his throwing

ability, he was substantially certain that the flagpole would

strike an unsuspecting student when he threw it.

¶13 The School District argues, with our emphasis, that even

under this scenario, Student nonetheless acted with substantial

certainty because he “knew that it was substantially likely that the

flagpole would come into contact with someone in the crowd of

students.” We disagree for two reasons.

¶14 First, as discussed above, the inquiry into whether an

actor desired a harmful contact or knew that it was substantially

certain to result is a subjective one and therefore highly

fact-intensive. See supra ¶ 11. Such determinations are the

exclusive province of the trier of fact and are typically improper

even at the summary judgment stage of litigation, much less at

the complaint stage. See Uintah Basin Med. Center v. Hardy, 2008

UT 15, ¶ 19, 179 P.3d 786 (stating that a district court is

precluded from granting summary judgment “if the inferences

depend upon subjective feelings or intent”) (quotation

simplified); Haynes v. Department of Public Safety, 2020 UT App

19, ¶ 11, 460 P.3d 565 (“[T]he parties’ intentions cannot be

determined as a matter of law in the context of a rule 12(b)(6)

motion to dismiss.”). The liberal pleading standards for

complaints, see America West Bank Members, LC v. State, 2014 UT

49, ¶ 13, 342 P.3d 224, allow for the scenarios that Student was

only somewhat aware of the risk of harmful contact or even

completely oblivious to it. Thus, although it is entirely possible

under the general scenario suggested by Erickson that the School

District is correct that Student knew or was substantially certain

that the flagpole would strike an unsuspecting student below, it

is improper to dismiss the complaint on this basis because it is

the role of the trier of fact to make this determination after all the

facts are known.

¶15 Second, we disagree with the School District’s contention

that a showing of substantial likelihood satisfies the “substantial

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certainty” standard. Substantial certainty requires a showing

higher than that of mere recklessness. See Restatement (Second)

of Torts § 8A cmt. b (“As the probability that the consequences

will follow decreases, and becomes less than substantial

certainty, the actor’s conduct loses the character of intent, and

becomes mere recklessness,” and “[a]s the probability decreases

further, and amounts only to a risk that the result will follow, it

becomes ordinary negligence.”). Under the recklessness

standard, the plaintiff must establish that, among other things,

“the actor knew, or had reason to know, of facts which create a

high degree of risk of physical harm to another.” Daniels v.

Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 42, 221 P.3d 256

(quoting Restatement (Second) of Torts § 500 cmt. a). Therefore,

a showing of substantial certainty requires more than a showing

that the actor knew there was a “high degree of risk,” id.

(quotation simplified), or strong probability that harmful or

offensive contact would result from a contemplated action, see

Restatement (Second) of Torts § 500 cmt. f (“[A] strong

probability is a different thing from the substantial certainty

without which [the actor] cannot be said to intend the harm in

which his act results.”); Prosser § 8, at 36 (“The mere knowledge

and appreciation of a risk—something short of substantial

certainty—is not intent.”); Dobbs § 29, at 74 (“Mere risk, . . . even

a very high risk, is not enough to show substantial certainty.”).

Instead, a party must show that the actor believed that the

legally harmful or offensive contact was essentially unavoidable.

See Certain, New Oxford American Dictionary 284 (3d ed. 2010)

(defining “certain” as “known for sure; established beyond

doubt”); Certainty, New Oxford American Dictionary 284

(defining “certainty” as a “firm conviction that something is the

case”).

¶16 Substantial certainty is illustrated by the example in

which a defendant, intending to put a specific individual to

sleep, mixes sleeping powders into the food served by a

cafeteria. If the defendant knows that people other than the

intended target will eat the contaminated food, the defendant

knows to a substantial certainty that the sleeping powders will

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affect others. The law will therefore treat the defendant as if he

intended to put the other diners to sleep, although that was not

his specific aim or desire. See Dobbs § 29, at 73–74.

¶17 It is not enough to argue, as the School District does, that

even under Erickson’s scenario, Student would have known

“that it was substantially likely that the flagpole would come

into contact with someone in the crowd of students.” Knowing

that harmful contact is substantially likely to result is

recklessness, at most, and not intent. For one to act with

substantial certainty, it is insufficient that the actor merely

appreciates the existence of a risk—even a very high risk. Rather,

the actor must know that the harmful contact is essentially

unavoidable as a consequence of his action. 8

¶18 Because Erickson could potentially prove that Student

intended his friends to catch the flagpole and was not

substantially certain that the flagpole would strike an

unsuspecting student, at least one scenario exists where Student

did not commit the tort of battery and the School District would

not have immunity. Accordingly, the district court properly

denied the School District’s motion to dismiss Erickson’s

complaint against it on the theory that it failed to state a claim.

CONCLUSION

¶19 At this early stage of litigation, the facts are yet to be

determined. As this case moves forward, it might be revealed

8. As indicated, the inquiry is ultimately subjective. Whether the

actor would know to a substantial certainty that throwing a

flagpole to friends standing in a crowd of students would land

off target would likely be very different if the actor was the state

javelin champion as opposed to the state chess champion, who

lacked any prior experience in throwing long, cylindrical

projectiles.

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that Student threw the flagpole into the crowd of unsuspecting

students either desiring or substantially certain that harmful or

offensive contact would result. In that event, a battery occurred

and sovereign immunity insulates the School District from

liability. But it might instead be revealed that Student threw the

flagpole intending it to be caught by friends who were planning

to receive it and that Student was either completely unaware of

the risk of injury, believed the risk to be a moderate or high one,

or even knew that injury was substantially certain. Because

reasonable scenarios exist under which Student did not have the

requisite intent to commit the tort of battery, thereby triggering

the exemption to the waiver of governmental immunity, the

district court correctly denied the School District’s motion to

dismiss Erickson’s complaint against it.

¶20 Affirmed.

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