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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 Erickson v. Canyons School District

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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 Erickson v. Canyons School District

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…)

20190376-CA 6 2020 UT App 91
 Erickson v. Canyons School District

(…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 v. Canyons School District

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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 Erickson v. Canyons School District

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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 Erickson v. Canyons School District

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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 Erickson v. Canyons School District

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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