E.S. v. Univ. of Utah Med. Ctr.

549 P.3d 621

2024 UT App 57

E.S., and M.S., on behalf of Minors G.S. and M.S., Appellants,

v.UNIVERSITY OF UTAH MEDICAL CENTER, Appellee.

No. 20230197-CA

Court of Appeals of Utah.

Filed April 18, 2024

Third District Court, Salt Lake Department, The Honorable Todd M. Shaughnessy, No. 220904853

Alan S. Mouritsen, Salt Lake City and Whitney E. McKiddy, Attorneys for Appellants

Sean D. Reyes and Peggy E. Stone, Salt Lake City, Attorneys for Appellee

Judge Ryan D. Tenney authored this Opinion, in which Judges David N. Mortensen and John D. Luthy concurred.

Opinion

Tenney, Judge:

¶1 Plaintiffs sued the University of Utah Medical Center (the University), alleging that the University was negligent in hiring and failing to supervise a sex offender who was working as a nurse (Nurse) in the University’s Neonatal Intensive Care Unit (NICU).¹ The district court dismissed the suit, ruling that Plaintiffs could not establish proximate cause for any of their claims. Plaintiffs appealed that ruling. While briefing was underway, the University filed a motion for summary disposition, arguing that Plaintiffs had failed to properly deliver a notice of claim to the University before filing suit as required by the Utah Governmental Immunity Act (the Immunity Act). Though we denied the motion for summary disposition, we deferred an ultimate ruling on this issue until full briefing had concluded. With the benefit of that briefing and subsequent argument, we now hold that Plaintiffs failed to deliver a notice of claim to the University and that this failure deprives the courts of jurisdiction to consider their lawsuit. We accordingly affirm the district court’s dismissal of the suit for that reason.

BACKGROUND²

¶2 Around 2001, the University hired Nurse to work in its NICU. Nurse had been previously convicted for sodomy on a child, but the University failed to conduct a "reasonable" background check and did not discover Nurse’s conviction. From late December 2002 through early 2003, Nurse assisted in the care of E.S. after she was born prematurely. In 2004, Nurse assisted in the care of M.S. (E.S.’s sister) after she was admitted for health problems of her own.

¶3 Less than a year after M.S.’s hospital stay, Nurse contacted the girls’ parents under the guise of checking up on M.S. Nurse invited the parents to dinner, after which Nurse and the family developed a decade-long friendship. Sometime between 2014 and 2015, Nurse convinced the girls’ father to allow Nurse to spend unsupervised time with the two girls and their sister (G.S.). During subsequent unsupervised time with the girls, Nurse sexually assaulted each of them and "took lewd and explicit images of them."

¶4 After the abuse came to light, Plaintiffs filed a "Notice of Intent to Commence Action" (the notice of intent). They served it by certified mail on a Senior Vice President of the University of Utah, an "Administrator" at the Medical Center (which, again, we’re referring to as the University), and with the Division of Occupational and Professional Licensing (DOPL) of the Utah Department of Commerce. The notice of intent was largely comprised of what later became Plaintiffs’ civil complaint, with a preface noting that it was being filed in compliance with the Utah Medical Malpractice Act (the Malpractice Act). See Utah Code § 78B-3-412(1)(a) (requiring plaintiffs suing for medical malpractice to give "the prospective defendant" 90 days’ notice of a lawsuit).

¶5 A couple of weeks later, the attorney general’s office appeared as counsel for the University. Several months after that, Plaintiffs filed a civil complaint against the University, alleging that the University had negligently hired and supervised Nurse, thereby enabling him to gain access to Plaintiffs and then groom them for sexual abuse.

¶6 The University moved to dismiss the suit under rule 12(b)(6) of the Utah Rules of Civil Procedure. The University pointed to the large time gap between Nurse’s interactions with Plaintiffs at the University and the later abuse, as well as the many intervening circumstances that occurred in the interim (such as the family befriending Nurse over the course of a decade). In the University’s view, Plaintiffs could not establish proximate cause because it was "entirely unforeseeable" that the University’s alleged misconduct would lead to this abuse.³ Plaintiffs opposed the motion, arguing that the time gap was not enough to prevent them from establishing proximate cause and that their pleadings had at least raised a factual question as to whether it was reasonably foreseeable that a person convicted of a child sex offense would attempt to "groom" future victims through a job that brought him into close contact with children. The district court granted the University’s motion, however, agreeing with the University that Plaintiffs could not establish proximate cause in these circumstances as a matter of law.

¶7 Plaintiffs appealed. While briefing was underway, the University filed a motion for summary disposition. There, the University argued for the first time that Plaintiffs had failed to comply with the notice of claim requirements of the Immunity Act. According to the University, this failure deprived the courts of subject matter jurisdiction over Plaintiffs’ suit. After receiving an opposition from Plaintiffs and a reply from the University on the jurisdictional question, we denied the University’s motion for summary disposition, but we deferred an ultimate ruling on the issue "pending full briefing and plenary consideration" by the panel. The parties addressed the jurisdictional issue in their merits briefs and again at oral argument.

ISSUES AND STANDARDS OF REVIEW

[1, 2] ¶8 Plaintiffs challenge the district court’s decision granting the University’s motion to dismiss on several grounds. We generally "review a decision granting a motion to dismiss for correctness, granting no deference to the decision of the district court." Amundsen v. University of Utah, 2019 UT 49, ¶ 20, 448 P.3d 1224 (quotation simplified). But because we conclude that the courts lack subject matter jurisdiction, we do not reach the arguments raised by Plaintiffs. The question of whether we have jurisdiction "presents a question of law, which this court reviews under a correction of error standard." In re adoption of Baby E.Z., 2011 UT 38, ¶ 10, 266 P.3d 702 (quotation simplified).

ANALYSIS

[3, 4] ¶9 "Our law has long embraced a general principle of governmental immunity." Craig v, Provo City, 2016 UT 40, ¶ 14, 389 P.3d 423. But the government retains the ability to waive its immunity when it so chooses. In Utah, it does so through the Immunity Act, which is a "comprehensive" statute that "expressly identifies the actions or claims for which immunity is waived" and "prescribes the proper timing and means by which a claim must be asserted." Id. ¶ 15 (quotation simplified); see also Utah Code § 63G-7-101(2)(b) (stating that the Immunity Act is a "comprehensive" statute that "governs all claims against governmental entities or against their employees or agents arising out of the performance of the employee’s duties, within the scope of employment, or under color of authority"). Because the waivers set forth in the Immunity Act relinquish immunity that the government would otherwise enjoy, plaintiffs who seek to rely on those waivers must strictly comply with the Immunity Act’s requirements. See Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 23, 24 P.3d 958 (holding that "where the government grants statutory rights of action against itself, any conditions placed on those rights must be followed precisely" and the statute’s requirements must be "strictly followed").

[5–8] ¶10 It’s well settled that the Immunity Act’s requirements implicate subject matter jurisdiction. Amundsen v. University of Utah, 2019 UT 49, ¶ 19, 448 P.3d 1224 ("Compliance with the [Immunity Act] is a prerequisite to vesting a district court with subject matter jurisdiction over claims against governmental entities." (quotation simplified)); Greene v. Utah Transit Auth., 2001 UT 109, ¶ 16, 37 P.3d 1156 ("Compliance with the Immunity Act is necessary to confer subject matter jurisdiction upon a trial court to hear claims against governmental entities."); Hall, 2001 UT 34, ¶ 23, 24 P.3d 958 ("We have consistently and uniformly held that suit may not be brought against the state or its subdivisions unless the requirements of the … Immunity Act are strictly followed."). Subject matter jurisdiction may "be raised at any time," including, as here, for the first time on appeal. Thomas v Lewis, 2001 UT 49, ¶ 13, 26 P.3d 217. And courts cannot reach the merits of cases over which they lack subject matter jurisdiction. See, e.g., Johnson v. Johnson, 2010 UT 28, ¶ 8, 234 P.3d 1100 ("Subject matter jurisdiction is the authority of the court to decide [a] case." (quotation simplified)). As a result, our supreme court has "repeatedly denied recourse to parties that have even slightly diverged from the exactness required by the Immunity Act." Wheeler v. McPherson, 2002 UT 16, ¶ 12, 40 P.3d 632. If a plaintiff fails to comply with the requirements set forth in the Immunity Act, the court must dismiss the complaint. See Greene, 2001 UT 109, ¶ 16, 37 P.3d 1156.

¶11 One of those requirements is that "[a]ny person having a claim against a governmental, entity … shall file a written notice of claim with the entity before maintaining an action." Utah Code § 63G-7-401(2). The notice of claim must include "a brief statement of the facts," the "nature of the claim," and a statement of any "known" damages. Id. § 63G-7-401(3)(a)(i)–(iii). The notice must be "signed by the person making the claim or that person’s agent, attorney, parent, or legal guardian." Id. § 63G-7-401(3)(b)(i). And of note for this appeal, the notice of claim must be "delivered, transmitted, or sent" to the proper governmental entity.⁴ Id § 63G-7-401(3)(b)(ii) (identifying in detail who the...