Larsen v. Davis County School District

2017 UT App 221
THE UTAH COURT OF APPEALS
DAVID DRAKE LARSEN ,
Appellant,
v.
DAVIS C OUNTY S CHOOL DISTRICT,
Appellee.
Opinion
No. 20160099-CA
Filed November 30, 2017
Second District Court, Farmington Department
The Honorable John R. Morris
No. 150700222
Erik M. Ward, Lindy W. Hamilton, and Robert W.
Gibbons, Attorneys for Appellant
Sean D. Reyes and Peggy E. Stone, Attorneys
for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which J UDGES
K ATE A. TOOMEY and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 	Plaintiff David Drake Larsen alleges that in 2013, when he
was sixteen years old, one of his high school teachers (Teacher)
initiated 	a 	romantic 	relationship 	with 	him, 	beginning 	with
“flirtatious conversations” and text messages, and eventually
culminating in sexual intercourse. In 2015, Larsen sued the Davis
County School District (the District), asserting that the District
was negligent in its hiring, supervision, and retention of Teacher,
and seeking recovery for damages he claims to have sustained as
a result of his relationship with Teacher. The district court
dismissed Larsen’s lawsuit, determining that the District was
immune from suit pursuant to the Governmental Immunity Act
of Utah (the Act). Because we conclude that the Act, under either

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of two different interpretations and as construed by our supreme
court, compels dismissal of Larsen’s claims, we affirm.
BACKGROUND
¶2 	In 2013, Larsen was a student at Davis High School in
Kaysville, Utah. Larsen alleges that Teacher “initiated a romantic
relationship” with him while she was his teacher. Specifically,
Larsen 	asserts 	that 	the 	relationship 	began 	with 	“flirtatious
conversations” in the classroom, as well as text messages, and
that Teacher encouraged him to visit her classroom during her
preparation period to continue their conversations. According to
Larsen, Teacher eventually asked him to meet her privately, both
on and off school grounds, and some of these private meetings
included “inappropriate sexual contact.” Larsen alleges that the
“first 	sexual 	intercourse” 	between 	him 	and 	Teacher 	“was
initiated by [Teacher] luring [Larsen] from school grounds and
then driving him to her home, during school hours,” and that
“[a]t least three additional sexual encounters occurred during
school hours, on or near school grounds.”
¶3 	Larsen sued the District, alleging that the District was
negligent in its hiring, supervision, and retention of Teacher.
Specifically, Larsen asserts that, at the time it hired Teacher, the
District knew, or at least should have known, that Teacher “had
been previously terminated from former employment due to
sexual misconduct.” In addition, Larsen asserts that on at least
one occasion, the District “reprimanded Teacher” after learning
that she had been involved with “inappropriate contact with
students,” but that the District “failed to take sufficient steps to
either terminate her or supervise her.”
¶4 	As part of his negligence claim, Larsen specifically asserts
that 	the 	District 	“failed 	to 	adequately 	train, 	retrain, 	and/or
supervise its employees”; “negligently screened and hired an
employee whom the [D]istrict knew or should have known was
unfit to be a teacher and posed a risk to students”; “failed to
supervise a teacher whom the [D]istrict knew or should have

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known posed a risk to students”; “negligently retained a teacher
who was engaging in inappropriate behavior with students”;
and “failed in its duty to supervise and direct its employees in a
manner so as to protect its students from harm.”
¶5 	In 	addition 	to 	his 	claim 	for 	negligence, 	Larsen 	also
brought claims for negligent infliction of emotional distress,
breach of common law duty to protect from harm, vicarious
liability 	for 	sexual 	misconduct, 	and 	vicarious 	liability 	for
seduction.
¶6 	Before answering, the District moved to dismiss Larsen’s
entire complaint for failure to state a claim pursuant to rule
12(b)(6) of the Utah Rules of Civil Procedure, asserting that all of
Larsen’s 	claims 	were 	barred 	by 	governmental 	immunity.
Specifically, 	the 	District 	pointed 	out 	that 	governmental
immunity is not waived for injuries that are proximately caused
by “assault” or “battery,” and argued that Larsen’s injuries were
proximately 	caused—at 	least 	in 	part—by 	the 	“assault 	and
battery” that Teacher allegedly inflicted upon Larsen.
¶7 	After full briefing and oral argument, the district court
agreed with the District and dismissed Larsen’s complaint. The
district court determined that Teacher’s conduct toward Larsen
was an “assault” or “battery,” and that this assault or battery
was at least a proximate cause of Larsen’s injuries, as pleaded in
his complaint. The district court determined that dismissal was
appropriate on immunity grounds as long as the assault and
battery was “a cause” of Larsen’s injuries, even if it was not the
“sole cause.”
¶8 	Larsen 	appeals 	the 	district 	court’s 	dismissal 	of 	his
complaint.
ISSUE AND STANDARD OF REVIEW
¶9 	The sole issue presented by this appeal is whether the
district court properly dismissed Larsen’s complaint pursuant to

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rule 12(b)(6). “A motion to dismiss is appropriate only where it
clearly appears that the plaintiff[] would not be entitled to relief
under the facts alleged or under any set of facts [he] could prove
to support [his] claim.” Miller v. West Valley City, 2017 UT App
65, ¶ 12, 397 P.3d 761 (citation and internal quotation marks
omitted). In reviewing a motion to dismiss for failure to state a
claim upon which relief can be granted, we accept the facts
pleaded 	as 	true, 	interpreting 	those 	facts 	and 	reasonable
inferences drawn from the facts in the light most favorable to the
plaintiff. Moss v. Pete Suazo Utah Athletic Comm’n, 2007 UT 99,
¶ 8, 175 P.3d 1042. Because the propriety of the district court’s
decision to grant the District’s motion to dismiss presents a
question of law, we review for correctness. Spencer v. Glover, 2017
UT App 69, ¶ 5, 397 P.3d 780.
ANALYSIS
¶10 	The Act, as formulated in 2013,1 stated as a general
proposition that “each governmental entity and each employee
of a governmental entity are immune from suit for any injury
that results from the exercise of a governmental function.” Utah
Code Ann. § 63G-7-201(1) (LexisNexis Supp. 2012). However, the
Act waives governmental immunity in certain circumstances,
and some of the waivers contain exceptions. Thus, in cases
where a governmental entity asserts that it is immune from suit
pursuant to the Act, we apply a three-part test to determine
whether immunity exists. Thayer v. Washington County School
Dist., 2012 UT 31, ¶ 8, 285 P.3d 1142. First, we examine “whether
1. The parties agree that the 2013 version of the Act governs the
outcome of this case. It is worth noting, however, that in 2015 the
legislature amended and recodified the relevant provisions of
the Act. Governmental Immunity Act Amendments, ch. 342, § 3,
2015 Utah Laws 1868, 1868–71. We are not asked to determine
whether the outcome of this case would have been different
under the current version of the Act.

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the activity undertaken is a governmental function.” Id. (citation
and internal quotation marks omitted). Second, we determine
“whether governmental immunity was waived for the particular
activity.” Id. (citation and internal quotation marks omitted).
Finally, we look to see whether immunity has been reinstated
through a statutory exception to the immunity waiver. Id.
¶11 	In this case, the first question is not at issue; all parties
agree that the District was engaged in a governmental function
when it operated Davis High School and hired and supervised
Teacher. 	Instead, 	this 	case 	hinges 	on 	steps 	two 	and 	three:
whether immunity has been waived and, if so, whether there is
an exception to that waiver.
¶12 	Larsen directs us to the statutory waiver of governmental
immunity 	for 	acts 	of 	negligence. 	That 	waiver 	is 	found 	in
subsection (4) of section 301 of the Act, and provides as follows:
Immunity from suit . . . is waived as to any injury
proximately caused by a negligent act or omission
of an employee committed within the scope of
employment.
Id. § 63G-7-301(4) (LexisNexis 2011). The District, for its part,
directs us to the next statutory provision, subsection (5), which
contains an exception to the negligence waiver:
Immunity 	from 	suit . . . is 	not 	waived 	under
Subsection[] 	(4) 	if 	the 	injury 	arises 	out 	of, 	in
connection 	with, 	or 	results 	from . . . assault 	[or]
battery.
Id. § 63G-7-301(5)(b) (LexisNexis 2011). Our supreme court has
recently held that the phrase “arises out of, in connection with,
or results from” as used in subsection (5) means “proximate”
causation. Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 44, 353
P.3d 140 (stating that “the exception provisions (reinstating
immunity) are properly invoked only where a plaintiff’s injury is
proximately caused by immune conduct”).

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¶13 	Our task in this case is to interpret the subsection (4)
waiver 	of 	immunity 	for 	negligence 	in 	tandem 	with 	the
subsection 	(5) 	exception 	to 	that 	waiver. 	We 	perceive 	two
plausible interpretations of the language of these provisions, and
we examine each one in turn.
A
¶14 	The 	first 	potential 	interpretation 	of 	the 	Act 	is
straightforward. 	Under 	this 	interpretation, 	the 	waiver 	of
immunity for negligent acts, clearly articulated in subsection (4),
is completely nullified by subsection (5) if “the injury” resulting
from the negligence is proximately caused by any of the items
listed in subsection (5), including “assault” or “battery.” See Utah
Code Ann. § 63G-7-301(5); see also Barneck, 2015 UT 50, ¶ 44.
Under this construct, the immunity waiver for negligence either
never springs into being in the first place (if the negligence
happens later in time than the subsection (5) condition) or is
entirely erased after the fact once a subsection (5) condition
occurs. Simply put, if “the injury” is proximately caused by any
of the conditions listed in subsection (5), then “[i]mmunity from
suit . . . is not waived under Subsection[] (4).” See Utah Code
Ann. § 63G-7-301(5).2
¶15 	Under this approach, then, if the District can demonstrate
that Larsen’s alleged injury was proximately caused by “assault”
or “battery,” then the District is immune from Larsen’s suit.
2. By enacting the 2015 amendment, the legislature adopted
language that supports this construct more clearly. Under the
current 	statute, 	“immunity 	is 	not 	waived[] 	for 	any 	injury
proximately caused by a negligent act . . . if the injury arises out
of or in connection with, or results from” any of a long list of
conditions, including “assault” or “battery.” See Utah Code Ann.
§ 63G-7-201(4) (LexisNexis 2016).

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B
¶16 	Under the second option, the language of the negligence
waiver and the subsection (5) exception is interpreted in a way
that allows for the possibility that a plaintiff’s injury can be the
result 	of 	multiple 	separate 	causes 	(for 	instance, 	both 	a
governmental entity’s negligence and a third party’s assault or
battery), and that principles of 	comparative negligence and
apportionment of fault can be applied to separate them.
¶17 	Under 	this 	construct, 	the 	waiver 	of 	immunity 	in
subsection 	(4) 	applies 	to 	a 	governmental 	entity’s 	negligent
conduct more broadly. Immunity for the negligent conduct is
entirely waived, and then later, when a subsection (5) condition
arises, a revocation of that waiver occurs, which depending
upon the nature of the injury may be a complete revocation or
only a partial revocation. This interpretation focuses on the fact
that the Act uses the term “injury” rather than “claim” or
“lawsuit” or “cause of action,” and construes “injury” as being
non-monolithic. Conceptually, part of an injury could be caused
by negligence, and part of an injury could be caused by a
battery. Interpreted in this manner, the Act leaves open the
possibility that a factfinder could differentiate between that
portion of a plaintiff’s injury that is proximately caused by
negligence—for which a governmental entity is not immune
under subsection (4)—and that portion of a plaintiff’s injury that
is proximately caused by an immunity-invoking condition, such
as a battery—for which a governmental entity retains immunity
under subsection (5).
¶18 	It is, of course, common for plaintiffs to allege injury that
stems from more than one cause; indeed, Utah’s model jury
instructions regarding causation contain plain guidance on the
issue. 	See 	Model 	Utah 	Jury 	Instructions 	2d 	CV209 	(2016),
https://www.utcourts.gov/resources/muji/ 	[https://perma.cc/
VR4H-HARP] (noting that “[t]here may be more than one cause
of the same harm”); see also McCorvey v. Utah State Dep’t of
Transp., 868 P.2d 41, 45 (Utah 1993) (stating that “there can be

Larsen v. Davis County School District
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more than one proximate cause . . . of an injury”). In such cases,
our tort law provides useful tools for determining what portion
of a plaintiff’s injuries was caused by each particular actor’s
conduct. Some of the most useful of these tools are the doctrines
of 	comparative 	negligence 	and 	apportionment 	of 	fault,
principles that allow a factfinder, usually a jury, to ascribe to a
particular actor liability for only that portion of a plaintiff’s
injury for which that actor is responsible. See Utah Code Ann.
§ 78B-5-818 (LexisNexis 2012). Indeed, Utah statutes regarding
apportionment of fault, found in Utah’s Liability Reform Act,
allow a factfinder to “allocate the percentage or proportion of
fault 	attributable 	to 	each 	person 	seeking 	recovery, 	to 	each
defendant, [and] to any person immune from suit.” Id. § 78B-5-
818(4)(a) (emphasis added).
¶19 	Although persons immune from suit may be included in
the factfinder’s apportionment calculus, “[a]ny fault allocated to
a person immune from suit is considered only to accurately
determine 	the 	fault 	of 	the 	person 	seeking 	recovery 	and 	a
defendant and may not subject the person immune from suit to
any liability.” Id. § 78B-5-818(4)(b). Thus, Utah law regarding
apportionment of fault would appear to be versatile enough to
allow a factfinder to allocate fault to a governmental entity that
is entirely or partially immune from suit under the Act, and even
to allocate fault between a governmental entity’s immune and
non-immune conduct. See Thayer, 2012 UT 31, ¶¶ 63–65 (Lee, J.,
dissenting) (suggesting that “[a]pportionment of fault between
the immune and non-immune acts of the School District would
. . . be required” under the Liability Reform Act, because that
statute applies to “two acts of a single tortfeasor where only one
of 	those 	acts 	is 	actionable 	(and 	the 	other 	is 	not, 	due 	to
immunity)”); cf. Nixon v. Salt Lake City Corp., 898 P.2d 265, 270
(Utah 1995) (holding that the Liability Reform Act “contemplates
the consideration of the fault of immune parties in determining
whether a plaintiff is entitled to recover” when immunity arises
under the Workers’ Compensation Act).

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¶20 	In addition, our supreme court has recently provided the
“solution to the riddle of Field [v. Boyer],” see Jedrziewski v. Smith,
2005 UT 85, ¶¶ 17, 23, 128 P.3d 1146 (citing Field v. Boyer, 952
P.2d 1078 (Utah 1998)), and has definitively determined that
under 	the 	Liability 	Reform 	Act 	courts 	can—and 	should—
apportion fault between and among negligent tortfeasors and
intentional tortfeasors. See Graves v. North E. Services, Inc., 2015
UT 28, ¶¶ 44–46, 345 P.3d 619. Indeed, although none of the
parties 	in 	Graves 	were 	governmental 	entities, 	and 	therefore
immunity was not an issue, the facts of 	that case are not
dissimilar to the facts presented here. In Graves, the plaintiffs
brought suit against a private provider of mental health services
for negligent hiring, training, and supervision of employees after
one of the provider’s employees sexually assaulted a minor
child. Id. ¶ 1. Our supreme court held that Utah’s Liability
Reform 	Act, 	including 	specifically 	the 	provisions 	regarding
apportionment of fault, requires a factfinder to allocate fault as
between the allegedly negligent health services provider and the
employee who committed an intentional sexual assault. Id. ¶ 46.
¶21 	This second interpretation of the Act was at one point
espoused by two current members of our supreme court. See
Thayer, 2012 UT 31, ¶¶ 63–65 (Lee, J., dissenting). In Thayer, a
high school student died during production of a school musical
when an actual firearm that school officials had approved for use
in the production discharged near his head. His family sued the
school district for negligence, and the district asserted that it was
immune from suit under subsection (5) of the Act, under which
immunity is not waived for “the issuance . . . [of a] permit,
license, certificate, approval, order, or similar authorization.”
Utah 	Code 	Ann. 	§ 	63G-7-301(5)(c) 	(LexisNexis 	2013). 	The
majority of 	the supreme 	court 	concluded 	that the 	district’s
actions in allowing the firearm to be used in the musical did not
fall 	within 	subsection 	(5), 	and 	therefore 	determined 	that,
pursuant to subsection (4), the district was not immune from suit
for negligence. Thayer, 2012 UT 31, ¶ 28. In the view of the two
dissenting justices, however, the district’s actions did fall within
subsection (5), id. ¶ 51 (Lee, J., dissenting), but that conclusion

Larsen v. Davis County School District
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did not completely answer the question as to whether the district
was immune. Instead, in their view, “the [d]istrict’s immunity
ought to turn on whether and to what extent [the student’s]
death was caused by its subsequent alleged negligence (for
which the government is not immune) or by its issuance of an
authorization (for which it is immune).” Id. ¶ 31; see also id. ¶ 56
(stating that the district “should be immune insofar as [the
student’s] death was proximately caused by the authorization”
but “not immune to the extent the tragedy was the proximate
result of the [d]istrict’s subsequent negligence”). The dissent
specifically called for apportionment of fault, pursuant to the
Liability Reform Act, between the district’s immune conduct and
the district’s non-immune conduct, expressing the view that
apportionment 	of 	fault 	“is 	likewise 	suitable 	to 	the
apportionment of liability between two acts of a single tortfeasor
where only one of those acts is actionable (and the other is not,
due to immunity).” Id. ¶ 63. Indeed, the dissenting justices went
so far as to opine that “[a]pportionment of fault between the
immune and non-immune acts of the [district] would thus be
required under the terms of the statute.” Id. ¶ 65. The other three
justices did not weigh in on this issue, because their disposition
of the case did not require it.
¶22 	Since Thayer, our supreme court has not directly revisited
the 	issue, 	and 	therefore 	a 	majority 	of 	the 	court 	has never
endorsed the dissent’s interpretation of the Act. In Barneck,
however, even without confronting the issue directly, the court
made 	certain 	statements—unanimously—that, 	in 	our 	view,
foreclose any hope Larsen may have had that apportionment of
fault might be available here.
¶23 	Before Barneck, a governmental entity claiming immunity
based on the “assault” or “battery” exception had to show only
that the assault was a “but-for” cause of the plaintiff’s harm. See,
e.g., Taylor ex rel. Taylor v. Ogden City School Dist., 927 P.2d 159,
163 (Utah 1996) (holding that the governmental entity would be
immune if there was even a “[b]ut for” causal relationship
between 	the 	assault 	and 	the 	injury). 	In 	Barneck, 	the 	court

Larsen v. Davis County School District
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ratcheted up the causation requirement, determining that “an
immunity invoking condition,” such as an assault or battery,
“must be a proximate cause of the plaintiff’s injuries in order to
sustain the reinstatement of immunity.” See Barneck, 2015 UT 50,
¶ 38. However, the court left in place the previous case law’s
admonition that “the assault need not be the sole cause of the
injury to except the governmental entity from liability for the
injury.” Taylor, 927 P.2d at 163. Indeed, in Barneck, the court
several times stated that, so long as the immunity-invoking
condition 	was 	“a 	proximate 	cause” 	of 	the 	injury, 	the
governmental 	entity 	would 	be 	entirely 	immune 	from 	suit.
Barneck, 	2015 	UT 	50, 	¶¶ 	38, 	46, 	47 	(emphasis 	added).
Significantly here, despite the fact that Barneck was decided just
three years after Thayer and was authored by the same justice
who penned the dissent in Thayer, at no point in the court’s
analysis in Barneck did the court discuss apportionment of fault.
¶24 	Larsen cites hopefully to Barneck, correctly pointing out
that the law now requires a stronger causal connection between
the assault and the injury than it did before. Larsen’s faith in
Barneck 	is 	ultimately 	misplaced, 	however, 	due 	to 	Barneck’s
reaffirmance of Taylor’s “sole cause” principle. After Barneck, the
governmental entity must certainly show a stronger causal link
between the immunity-invoking condition and the injury. But
regardless of the strength of the causal link, the governmental
entity has never been required to show that the immunity-
invoking condition is the “sole cause” of the plaintiff’s injuries,
and Barneck did not change that. Even after Barneck, as long as
the governmental entity can demonstrate that an immunity-
invoking condition is “a proximate cause” of the plaintiff’s
injuries, it is immune from suit, regardless of whether there exist
other non-immune causes of the plaintiff’s injuries. In our view,
two 	aspects 	of 	the 	Barneck 	decision 	make 	this 	reading
inescapable.
¶25 	First, the court in Barneck made clear that its previous
cases, including Taylor, “would have come out the same way
under the proximate cause standard.” Id. ¶ 45. For example, in

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Taylor, a student sued a school district for injuries incurred when
another student pushed the first student through “an allegedly
unsafe” window at a middle school. Taylor, 927 P.2d at 160. The
first student suffered significant injuries, due at least in part to
the glass from the window cutting his hand, and claimed that
the school district had negligently failed to “install safety glass”
in the school window. Id. The injured student argued that his
injuries had “a greater link to the dangerous window in the
restroom than” to the other student’s assault and, therefore, the
school should not have retained immunity under the Act. Id. at
163. In rejecting that argument, the court explained that “the
assault need not be the sole cause of the injury to except the
governmental entity from liability,” and that the language of the
Act demanded “only that there be some causal relationship
between the injury and the risk.” Id. (citation and 	internal
quotation 	marks 	omitted). 	Because 	there 	was 	a 	causal
relationship 	between 	the 	injury 	and the 	assault, 	the 	school
retained immunity. Id. In other words, “but for the assault,” the
injured student’s “injuries would not have occurred.” Id. It did
not 	matter 	to 	the 	court’s 	analysis 	that 	the 	school 	district’s
negligence might also have played a role in the injuries. In
Barneck, the court stated that Taylor (as well as some other cases3)
3. In Barneck, the court noted that Blackner v. State Department of
Transportation, 2002 UT 44, 48 P.3d 949, and Hoyer v. State, 2009
UT 38, 212 P.3d 547, would also have come out the same way
under the new proximate cause standard as they did under the
previous standard. And, although not mentioned in Barneck, the
case of Ledfors v. Emery County School District, 849 P.2d 1162
(Utah 1993), is also materially indistinguishable. In all of those
cases, as well as in Taylor, a governmental entity was accused of
acting negligently, but was determined to be entirely immune
from suit because an immunity-invoking condition or event was
at least one of the causes of plaintiff’s claimed injuries. Hoyer,
2009 UT 38, ¶ 34; Blackner, 2002 UT 44, ¶ 16; Taylor ex rel. Taylor
v. Ogden City School District, 927 P.2d 159, 163 (Utah 1996);
Ledfors, 849 P.2d at 1166. Furthermore, even though these cases
(continued…)

Larsen v. Davis County School District
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“would have come out the same way under the proximate cause
standard” 	as 	it 	did 	under 	the 	but-for 	causation 	standard.
Barneck, 2015 UT 50, ¶ 45; see also id. ¶ 47 (stating that the result
in Blackner v. State Department of Transportation, 2002 UT 44, 48
P.3d 	949 	“would 	be 	correct 	under 	[the 	proximate 	cause
standard] despite the fact that UDOT’s alleged negligence was
likely also a proximate cause”).
¶26 	Second, although the court in Barneck did not expressly
discuss whether apportionment of fault would be appropriate in
a case like this one, where plaintiff’s injuries are allegedly caused
by both negligent (non-immune) conduct as well as by immune
conduct, the court did state in a footnote that when “a particular
injury 	is 	a 	proximate 	result 	of 	both 	an 	act 	for 	which 	the
government has waived immunity (such as negligence) and an
act 	for 	which 	the 	statute 	reinstates 	it 	(such 	as 	a 	natural
condition),” the government retains immunity. Id. ¶ 47 n.19. In
our view, allowing apportionment of fault in this case is a result
that cannot plausibly be squared with the language of Barneck’s
footnote 19.4
(…continued)
were decided after passage of the Liability Reform Act, at no
point in any of those cases was there any discussion of the
possibility 	of 	apportioning 	fault 	between 	the 	governmental
entities’ immune actions and non-immune actions.
4. Moreover, the concept of superseding cause is of no assistance
to Larsen under the facts of this case. “A superseding cause is an
unforeseeable act of subsequent negligence that severs the causal
connection to an initial causal act.” Thayer v. Washington County
School 	District, 	2012 	UT 	31, 	¶ 	61, 	285 	P.3d 	1142 	(Lee, 	J.,
dissenting) (emphasis added) (citations omitted). In cases in
which the immune conduct (e.g., battery) occurs after the alleged
negligence, as a matter of chronology and logic the negligence
cannot be a superseding cause of the subsequent conduct. Id.
(continued…)

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¶27 	Accordingly, 	although 	it 	is 	possible 	to 	interpret 	the
language 	of 	the 	negligence 	waiver 	and 	the 	subsection 	(5)
exception as allowing for apportionment of fault between the
governmental entity’s negligence and the immunity-invoking
condition of the exception, and although two members of our
supreme 	court 	had 	at 	one 	point 	appeared 	to 	espouse 	that
interpretation, this second interpretation of the Act has never
been adopted by a majority of our supreme court, and appears to
have been at least implicitly rejected by the court’s unanimous
opinion in Barneck. After Barneck, apportionment of fault is not
available, and we are therefore left with essentially the same
question posed by the first interpretation: whether an immunity-
invoking 	condition 	(e.g., 	assault 	or 	battery) 	is 	at 	least 	“a
proximate 	cause” 	of 	the 	claimed 	injury. 	Under 	either
interpretation, then, if that question must be answered in the
affirmative, the District is immune from suit.
C
¶28 	Next, we must proceed to examine the question to which
both 	possible 	interpretations 	of 	the 	Act 	lead 	us: 	whether
Teacher’s “assault” or “battery” was “a proximate cause” of
Larsen’s claimed injury. After examination, we conclude that,
under any principled reading of Larsen’s complaint, Teacher’s
physical contact with Larsen was indeed a proximate cause of
Larsen’s injuries.
(…continued)
¶ 60 (stating that where “[t]he immune conduct (the assault)
happened last,” “it could not have been superseded by any
subsequent act of negligence”). In this case, in order for Larsen
to be able to prove that the District’s negligent hiring and
supervision 	of 	Teacher 	caused 	him 	harm, 	the 	District’s
negligence must have happened first, and led to subsequent
actions by Teacher. Thus, in this case, the non-immune conduct
cannot have been a superseding cause of the immune conduct.

Larsen v. Davis County School District
20160099-CA 	15 	2017 UT App 221
¶29 	In 	his 	complaint, 	Larsen 	alleges 	that 	the 	District
negligently hired, supervised, and retained Teacher. In addition,
Larsen alleges that Teacher, while acting within the course and
scope of her employment with the District, “initiated a romantic
relationship” 	with 	Larsen 	that 	included, 	eventually,
“inappropriate sexual contact” and “sexual intercourse.” Larsen
states specific claims—his fourth and fifth causes of action—
against the District, asserting that the District is vicariously liable
for Teacher’s “sexual misconduct” and “seduction.” Teacher’s
inappropriate 	sexual 	contact 	with 	Larsen 	is 	inextricably
intertwined with each cause of action. And, as noted below,
Larsen alleges only one set of damages: that all of the conduct
described 	in 	the 	complaint 	caused 	him 	to 	incur 	“medical
expenses” as well as “severe emotional and mental distress.” The
relationship 	described 	in 	the 	complaint 	between 	Teacher’s
inappropriate sexual contact with Larsen and Larsen’s injuries is
more than just a “but-for” causal link. Rather, Teacher’s contact
is a proximate cause of Larsen’s injury: a “cause which, in a
natural and continuous sequence, unbroken by any new cause,
produced the injury, and without which the injury would not
have occurred.” See Nebeker v. Summit County, 2014 UT App 244,
¶ 42, 	338 	P.3d 	203 	(citation 	and 	internal 	quotation 	marks
omitted); see also Holmstrom v. C.R. England, Inc., 2000 UT App
239, ¶ 36, 8 P.3d 281 (stating that a cause is a “proximate cause”
if 	it 	“played 	a 	substantial 	role 	in 	causing 	the 	[plaintiff’s]
injuries”).
D
¶30 	In an effort to avoid the consequences of the Act, Larsen
makes two arguments. First, he argues that Teacher’s actions do
not constitute “assault” or “battery,” as he contends those terms
should be defined by civil tort law.5 Second, he argues that he
5. 	Although 	sometimes 	erroneously 	used 	interchangeably,
“assault” and “battery” are actually two distinct concepts in civil
tort law. Assault focuses on apprehension of harm. “An actor is
(continued…)

Larsen v. Davis County School District
20160099-CA 	16 	2017 UT App 221
has alleged certain harm that is completely independent from
the harm he sustained as a result of his physical contact with
Teacher. We address each of these arguments in turn.
1
¶31 	Larsen 	first 	argues 	that 	Teacher’s 	conduct 	cannot
constitute “battery” because Larsen alleges that he consented to
the contact. Larsen appears to concede that, if 	we look to
criminal law, Teacher’s actions were unlawful regardless of
whether Larsen consented. Indeed, under the criminal code,
Larsen could not have legally consented to sexual contact with
Teacher. 	See 	Utah 	Code 	Ann. 	§ 76-5-401.2(2)(a)(ii)–(iii)
(LexisNexis 	Supp. 	2017). 	However, 	as 	we 	explain, 	Larsen’s
arguments here fail even under a civil definition of “battery”
and, in any event, our supreme court has determined that
consent is no defense to a civil battery case brought by a minor
who alleges unlawful sexual contact. See Elkington v. Foust, 618
P.2d 37, 40 (Utah 1980).
¶32 	A person commits the civil tort of battery if: “‘(a) he acts
intending to cause a harmful or offensive contact with the person
(…continued)
subject to liability to another for assault 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 contact,
and (b) the other is thereby put in such imminent apprehension.”
Restatement (Second) of Torts § 21 (Am. Law Inst. 1965). Battery,
instead, focuses on actual contact. “An actor is subject to liability
to another for battery 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. 	§ 	13. 	Larsen’s 	complaint 	focuses 	on
Teacher’s actual contact with Larsen. Therefore, our analysis
focuses on battery rather than on assault.

Larsen v. Davis County School District
20160099-CA 	17 	2017 UT App 221
of the other or a third person, or an imminent apprehension of
such contact, and (b) a harmful contact with the person of the
other directly or indirectly results.’” Wagner v. State, 2005 UT 54,
¶ 16, 122 P.3d 599 (quoting Restatement (Second) of Torts § 13
(Am. Law Inst. 1965)). If the contact is “deliberate,” and is
“harmful 	or 	offensive 	at 	law,” 	then 	a 	battery 	has 	been
committed. Id. ¶ 19. Harmful or offensive contact consists of
contact “to which the recipient of the contact has not consented
either directly or by implication,” or to which “no reasonable
person would consent.” Id. ¶ 51.
¶33 	Larsen argues that Teacher did not commit a battery upon
him in this case, because the facts, as set forth in his complaint,
do not allege that Teacher’s contact was unwanted; indeed,
Larsen goes so far as to state in his brief that “Larsen craved and
requested ongoing interaction” with Teacher, and that “there
was 	no 	unwanted 	contact 	between 	Larsen 	and 	[Teacher].”6
Larsen’s 	argument 	fails, 	however, 	because 	whether 	Larsen
actually 	consented, 	as 	a 	factual 	matter, 	is 	not 	the 	relevant
question. 	Instead, 	even 	the 	civil 	definition 	of 	battery 	asks
whether the contact was “harmful or offensive at law.” Id. ¶ 19
(emphasis added). And our legislature, through the passage of
statutes making certain actions criminal, has provided a clear
answer to that question.
¶34 	Under our law, there are certain types of physical contact
that are harmful and offensive as a matter of law, and to which
no person can legally consent. Specifically germane here, our
6. These admissions on Larsen’s part leave us to wonder how—if
the contact were truly consensual and if the question of liability
for battery, even for sexual contact with minors, were governed
by questions of actual consent—Larsen would have ever been
able to prove that he sustained measurable damages caused by
the District’s negligent hiring and/or supervision of Teacher.
Because 	we 	affirm, 	however, 	these 	musings 	are 	rendered
academic.

Larsen v. Davis County School District
20160099-CA 	18 	2017 UT App 221
legislature has determined that no “minor” can legally consent
to sexual contact with a person who is “10 or more years older
than the minor at the time of the sexual conduct.” Utah Code
Ann. § 76-5-401.2(2)(a)(ii). Similarly, our legislature has also
decided that no “minor” student can legally consent to sexual
contact with an “adult teacher,” regardless of the size of the age
disparity between the minor student and the adult teacher. Id.
§ 76-5-401.2(a)(iii). 	Under 	either7 of 	these 	provisions, 	Larsen
could not have legally consented to sexual contact with Teacher,
and therefore any such contact must be considered “harmful or
offensive at law.”
¶35 	Indeed, although consent is usually a valid defense in
civil intentional tort cases (such as battery cases), see e.g., Graves,
2015 UT 28, ¶ 79 n.25 (stating that “in the context of intentional
torts, 	a 	defendant 	may 	raise” 	the 	“affirmative 	defense” 	of
“consent”); Elkington, 618 P.2d at 40 (stating that “generally
consent is a defense to a willful tort”), consent is not an available
defense if the plaintiff is a minor who cannot legally consent
under the criminal law, see Restatement (Second) of Torts § 892C
(Am. Law Inst. 1979) (stating that “[i]f conduct is made criminal
in order to protect a certain class of persons irrespective of their
consent, the consent of members of that class to the conduct is
not effective to bar a tort action”). These principles have been
adopted by our supreme court. See Elkington, 618 P.2d at 40.
¶36 	In Elkington, the defendant was sued civilly for damages
sustained 	by 	his 	adopted 	daughter, 	who 	alleged 	that 	the
7. Larsen’s complaint does not contain any allegations regarding
Teacher’s age at the time of the sexual contact between Teacher
and Larsen. However, at oral argument before the district court,
the State informed the court that Teacher was “thirty-plus-
year[s] old” during the relevant time period. Larsen has never
taken issue with the State’s representation, and it does not
appear to be in dispute here that Teacher is at least ten years
older than Larsen.

Larsen v. Davis County School District
20160099-CA 	19 	2017 UT App 221
defendant had sexually abused her for several years, from “the
time she was nine years old until she left home at age sixteen.”
Id. at 38. The case proceeded to a jury trial, and the defendant
asked the trial court to give a jury instruction on consent,
namely, that consent was a defense to the plaintiff’s intentional
tort claims. The trial court refused to give that instruction. To the
contrary, the court instructed the jury that “consent by the
plaintiff to the conduct of the defendant . . . is no defense.” Id. at
39. 	The 	jury 	returned 	a 	verdict 	for 	the 	plaintiff, 	and 	the
defendant appealed. Our supreme court affirmed, and noted the
general rule that “consent is a defense to a willful tort,” but held
that this principle had “[no] application to the instant situation”
because “the plaintiff was a minor and incapable of giving
consent to acts of this nature,” and because “the defendant is
precluded from taking advantage of any consent he seduced or
coerced her into giving to engage in such activities.” Id. at 40.
The court concluded its analysis by stating that the opposite
position “would be so contrary to commonly accepted standards
of decency and morality that any consensual agreement to
engage in such conduct would be rejected by the law as against
public policy and void.” Id.
¶37 	In 	sum, 	the 	civil 	definition 	of 	“battery” 	incorporates
principles of consent from the criminal law. Accordingly, we
conclude that Teacher’s sexual contact with Larsen meets the
definition of “battery,” because under either civil or criminal
law, Larsen was legally incapable of consenting to the contact.
2
¶38 	Second, Larsen asserts that the harm he sustained as a
result of his relationship with Teacher can be separated into two
distinct categories: damage sustained as a result of physical
contact with Teacher, and damage sustained as a result of non-
physical 	interactions 	(e.g., 	discussions, 	text 	messages) 	with
Teacher. Larsen argues that, even if the District is immune from
suit pursuant to the “assault and battery” exception for the first
category of damages, he may still sue the District for the second

Larsen v. Davis County School District
20160099-CA 	20 	2017 UT App 221
category 	of 	damages. 	We 	are 	not 	persuaded 	that 	Larsen’s
damages can meaningfully be separated in this way.
¶39 	As an initial matter, Larsen made no effort to plead
separate categories of damages in his complaint. There, Larsen
pleaded just one set of damages, namely, “economic and non-
economic damages . . . , including but not limited to medical
expenses” as well as “severe emotional and mental distress, and
pain 	and 	suffering.” 	As pleaded, 	Larsen 	alleged 	that 	these
damages were caused by the District’s negligence in hiring and
supervising 	Teacher, 	as 	well 	as 	by 	Teacher’s 	“sexual
misconduct” and “seduction.” A party is bound by the terms of
his own pleading, see Sutton v. Otis Elevator Co., 249 P. 437, 446
(Utah 1926) (explaining that “a party . . . is bound by his
pleadings, especially the plaintiff in pleading the basis of his
cause 	of 	action”), 	and 	Larsen’s 	failure 	to 	plead 	separate
categories of damages is fatal to his effort to separate them now.
¶40 	Moreover, even if Larsen had attempted to properly plead
two categories of damages in this case, that effort would not
have 	availed 	him. 	There 	are 	limits 	to 	a 	party’s 	ability 	to
creatively plead around the restrictions imposed by the Act. See
Taylor, 927 P.2d at 164 (citing cases, and stating that “[w]e
concluded that such allegations were merely ‘attempts to evade
the statutory categories by recharacterizing the supposed cause
of the injury’ and were summarily rejected” (citations omitted)).
In 	this 	instance, 	Larsen’s 	effort 	to 	creatively 	categorize 	his
damages as falling into separate categories is foreclosed by
Barneck. 	As 	discussed 	above, 	we 	read 	Barneck 	to 	compel
reinstatement 	of 	immunity 	when 	a 	governmental 	entity’s
immune conduct is “a proximate cause” of a plaintiff’s injuries.
Barneck, 2015 UT 50, ¶ 44 (emphasis added). Larsen cannot
escape this conclusion by attempting to separate his alleged
harm into two separate categories. Even under Larsen’s creative
approach, Teacher’s battery is still “a proximate cause” of some
of Larsen’s injuries, and therefore the District retains immunity.

Larsen v. Davis County School District
20160099-CA 	21 	2017 UT App 221
CONCLUSION
¶41 	It might seem counterintuitive that our law provides no
civil remedy against a school district that is alleged to have
negligently hired and retained a teacher who has illegal sexual
contact with her minor students. But this conclusion is, in our
view, 	compelled 	by 	the 	Act 	and 	by 	Utah 	Supreme 	Court
precedent.
¶42 	Decades ago, after reluctantly dismissing a somewhat
similar case, our supreme court invited legislative action by
noting its “sympath[y]” toward citizens in Larsen’s position, and
by declaring that it is “unfortunate that any parent who is
required by state law to send his or her child to school lacks a
civil remedy against negligent school personnel who fail to
assure the child’s safety at school.” Ledfors v. Emery County School
Dist., 849 P.2d 1162, 1167 (Utah 1993). In the intervening years,
however, our legislature has not amended the Act to expressly
provide for such a remedy. Under the language of the Act—
under either one of two possible interpretations, and as the Act
has been 	interpreted by our supreme court—the District is
entirely immune from suit for the acts alleged here. Accordingly,
the district court correctly dismissed Larsen’s complaint.
¶43 	Affirmed.