Robinson v. Mount Logan Clinic, LLC

1 Utah Code Ann. § 78-14a-102(1) (2002).
2 Id.
2008 UT 21
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Mark Robinson and Lori Robinson, No. 20061168
husband and wife,
Plaintiffs and Appellants,
v.
F I L E D
Mount Logan Clinic, LLC,
Defendants and Appellees. February 29, 2008
---
First District, Logan Dep’t
The Honorable Gordon J. Low
No. 060100223
Attorneys: William J. Hansen, Karra J. Porter, Salt Lake City,
for plaintiffs
Elliott J. Williams, Dennis C. Ferguson, Robert C.
Keller, Salt Lake City, for defendants
---
DURRANT, Justice:
INTRODUCTION
¶1 In this case we are called upon to decide whether
section 78-14a-102(1) of the Utah Code1 shields from liability a
therapist who erroneously informs a police officer that a client
is not armed when the client is in fact armed. That section
provides as follows: “A therapist has no duty to warn or take
precautions to provide protection from any violent behavior of
his client or patient, except when that client or patient
communicated to the therapist an actual threat of physical
violence against a clearly identified or reasonably identifiable
victim.”2 Because the client here made no actual threat of
physical violence to the responding police officer, the statute
precludes any duty on the part of the therapist to warn or

3 Krantz v. Holt, 819 P.2d 352, 353 (Utah 1991).
No. 20061168 2
protect the officer. However, a therapist who, despite being
under no obligation to act, undertakes to act has a common-law
duty to do so nonnegligently. We therefore reverse the order of
the district court granting summary judgment in favor of Mount
Logan Clinic (the “Clinic”).
BACKGROUND
¶2 Because this matter was decided on summary judgment, we
review all facts and inferences in the light most favorable to
the nonmoving party.3 Ms. Charlotte Harris, a therapist at the
Clinic, called upon Logan City Police to assist her with a
suicidal patient she was treating in her office. Ms. Harris was
aware that the patient had a history of threatening violent
behavior and had sometimes waved a gun around at home,
threatening himself and his family. She also knew that the
patient sometimes kept a gun in his truck. At one point during
his therapy session the patient returned to his truck. At
another point during the session Ms. Harris asked the patient if
he had a weapon, to which the patient replied, “Maybe I do, maybe
I don’t.”
¶3 Ms. Harris called the Logan City Police Department and
requested that officers escort the patient to a secure behavioral
modification unit at Logan Regional Hospital. The police
dispatch asked Ms. Harris if the patient had “any weapons or
anything like that?” Ms. Harris replied, “No.” Two officers,
including Officer Mark Robinson, were dispatched to the Clinic.
Upon arriving at the Clinic, the officers entered the office with
the patient, whereupon the patient became confrontational. At
that time Ms. Harris orally informed the officers that the
patient might have a weapon. A struggle ensued when the officers
attempted to escort the patient out of the clinic. During the
struggle, a handgun in the patient’s pocket discharged, striking
Officer Robinson in the foot.
¶4 Officer Robinson and his wife filed a complaint against
the Clinic, alleging negligently inflicted personal injury and
loss of consortium. The Clinic moved to dismiss, arguing that,
pursuant to Utah Code section 78-14a-102(1), it owed no duty to
Officer Robinson. The Clinic also argued that public policy or
the “fireman’s rule” bars a suit for injuries sustained by law
enforcement officers summoned as part of their duties. The
district court treated the motion as one for summary judgment
under rule 12(c) of the Utah Rule of Civil Procedure, which
provides as follows: “If, on a motion for judgment on the

4 Utah R. Civ. P. 56(c).
5 Krantz v. Holt, 819 P.2d 352, 353 (Utah 1991).
3 No. 20061168
pleadings, matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56 . . . .”
The district court did not reach the issue of whether public
policy or the “fireman’s rule” barred the suit because it granted
summary judgment in favor of the Clinic on the grounds that the
statute precluded a finding of duty.
¶5 The Robinsons appeal the district court’s grant of
summary judgment and its legal conclusion that Utah Code section
78-14a-102(1) removes any duty on the part of the Clinic to
exercise reasonable care to protect Officer Robinson. This court
has jurisdiction pursuant to Utah Code section 78-2-2(3)(j).
STANDARD OF REVIEW
¶6 Summary judgment is appropriate only when there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.4 We review the district court’s
order granting summary judgment for correctness.5
ANALYSIS
¶7 We begin our discussion with a plain language analysis
of Utah Code section 78-14a-102(1). After we analyze the first
clause in that section, which broadly precludes any duty on the
part of a therapist to warn or take precautions to protect
against a patient’s violent behavior, we analyze the second
clause, which provides a specific exception to this broad
preclusion of duty as to actual threats of physical violence
against a clearly identified or reasonably identifiable victim.
As we explain below, we conclude that regardless of whether this
exception triggers a duty on the part of therapists to their
patients as identifiable victims of their own threatened suicide,
it clearly does not trigger a duty to a third party such as
Officer Robinson, whom the patient had neither threatened nor
identified as a victim.
¶8 We then discuss whether, notwithstanding the fact that
the therapist was excused by the statute of any duty to warn or
take precautions, the therapist nevertheless had a duty to
exercise reasonable care, given that she did undertake to warn or
take precautions. We hold that under the common law, a duty does
arise by virtue of a therapist’s affirmative act and that the

6 Bluffdale Mountain Homes v. Bluffdale City, 2007 UT 57,
¶ 30, 167 P.3d 1016 (citation and internal quotation marks
omitted).
7 Jackson v. Mateus, 2003 UT 18, ¶ 21, 70 P.3d 78 (quoting
Millett v. Clark Clinic Corp., 609 P.2d 934, 936 (Utah 1980)).
8 Utah Code Ann. § 78-14a-102(1) (2002).
No. 20061168 4
statute does not obviate the duty to exercise reasonable care in
such a case.
I. THE THERAPIST’S STATUTORY DUTY TO WARN OR PROTECT
¶9 “Our objective in interpreting a statute is to
effectuate legislative intent, and that intent is most readily
ascertainable by looking to the plain language of the statute.”6
In addition, we construe a statute so “‘as to render all parts
thereof relevant and meaningful, and interpretations are to be
avoided which render some part of a provision nonsensical or
absurd.’”7
¶10 In plain language, Utah Code section 78-14a-102(1)
clearly delineates when a therapist has a duty to warn a
potential victim about a patient’s threat:
A therapist has no duty to warn or take
precautions to provide protection from any
violent behavior of his client or patient,
except when that client or patient
communicated to the therapist an actual
threat of physical violence against a clearly
identified or reasonably identifiable victim.
That duty shall be discharged if the
therapist makes reasonable efforts to
communicate the threat to the victim, and
notifies a law enforcement officer or agency
of the threat.8
The first clause of the first sentence of this section broadly
precludes any duty on the part of a therapist to warn or take
precautions to provide protection. The second clause of that
sentence establishes an exception to this preclusion, imposing a
duty on the therapist when a “client or patient communicated to
the therapist an actual threat of physical violence against a

9 Id.
10 Id.
5 No. 20061168
clearly identified or reasonably identifiable victim.”9 The
sentence that follows provides that a duty arising by virtue of
the exception is discharged “if the therapist makes reasonable
efforts to communicate the threat to the victim, and notifies a
law enforcement officer or agency of the threat.”10
¶11 The Clinic argues that a duty did arise by virtue of
the exception because the client made a threat of physical
violence against a clearly identified individual–-himself–-when
he threatened suicide. Because it was unnecessary to inform the
client of his threat against himself, the Clinic argues, Ms.
Harris fully discharged her obligation as specified in the
statute by informing law enforcement. We need not reach the
question of whether the statute contemplates a client threatening
suicide. The question before this court is not whether the
therapist owed and discharged a duty to the client but whether
the therapist owed and discharged a duty to Officer Robinson.
¶12 Whatever duty the statute may have created with respect
to the client as a threatened victim of his own suicide, it
created no duty with respect to the protection of Officer
Robinson. There is no suggestion that there was any actual
threat of physical violence to Officer Robinson communicated to
Ms. Harris. Therefore, he is not a “clearly identified or
reasonably identifiable victim” to which a duty might have arisen
by virtue of the exception. Because the exception does not
apply, the broad preclusion of duty makes clear that no duty to
warn or protect arose as to Officer Robinson. We hold that,
under a plain-meaning reading of the statute, the exception does
not apply, and Ms. Harris was under no duty to warn or protect
Officer Robinson.
II. THE THERAPIST’S COMMON-LAW DUTY AS TO AFFIRMATIVE ACTS
¶13 Although Ms. Harris was under no duty to warn or
protect Officer Robinson, she answered the police dispatcher’s
questions about whether her patient was armed. The Robinsons
assert that once Ms. Harris undertook to answer the police
dispatcher’s questions, she had a duty to do so nonnegligently.
We agree.
¶14 Our common law follows the rule that, “[w]ith limited
exceptions, a person has no affirmative duty to control the
conduct of another, to protect another from harm, or to render

11 Gilger v. Hernandez, 2000 UT 23, ¶ 15, 997 P.2d 305; see
also Restatement (Second) of Torts § 314 (1965).
12 Utah Code Ann. § 78-14a-102(1) (2002).
13 Stuckman ex rel. Nelson v. Salt Lake City, 919 P.2d 568,
573 (Utah 1996).
14 Id. (quoting Am. Jur. 2d. Negligence § 208 (1989)).
No. 20061168 6
aid to someone already injured through no act or fault of the
person.”11 The statute discussed above is entirely consistent
with the common law in that it also provides that the therapist
has no affirmative duty to protect or otherwise act unless the
statutory exception applies.12
¶15 A duty arises, however, when a person undertakes an
affirmative act for the benefit of another, whether gratuitously
or for pay. In Stuckman ex rel. Nelson v. Salt Lake City, we
held that a party could be held liable for negligently fencing a
waterway even though that party had no general duty to fence in
the waterway.13 We explained that “‘[w]here one undertakes an
act which he has no duty to perform and another reasonably relies
upon that undertaking, the act must generally be performed with
ordinary or reasonable care.’”14
¶16 Once Ms. Harris undertook to act by answering the
questions of the police dispatcher, she had an obligation to do
so nonnegligently. Under both the statute and the common law,
Ms. Harris was under no duty to warn Officer Robinson and would
not have been liable had she failed to do so. Nevertheless, a
duty arose when she replied to the police dispatcher’s question,
“He doesn’t have any weapons or anything like that?” with an
unequivocal “No.”
¶17 Section 78-14a-102(1) does not remove a therapist’s
duty in this case. While the statute excuses any obligation to
warn or take precautions absent application of the exception, the
language of the statute does not purport to excuse a therapist
from breaching the standard of care if she does act. Therefore,
we hold that the statute leaves intact the right of victims to
recover if a therapist fails to exercise reasonable care as to an
affirmative act.
¶18 Although we conclude that Ms. Harris incurred a duty to
act reasonably and that such duty is not obviated by statute, we
do not decide the question of whether she did or did not, in
fact, act reasonably.

7 No. 20061168
CONCLUSION
¶19 We conclude that Utah Code section 78-14a-102(1) makes
clear that, absent a threat to a clearly identifiable victim, a
therapist is under no obligation to act to protect that victim.
As Officer Robinson was neither threatened nor identified, the
statute imposed no obligation on the part of Ms. Harris to act to
warn or protect him. Nevertheless, because Ms. Harris undertook
to warn Officer Robinson, the common law imposed a duty to do so
nonnegligently. The statute does not purport to alter the common
law in the event the therapist does act. Therefore, we reverse
the district court’s legal conclusion that the statute removes
all common law and statutory duties of the therapist with respect
to Officer Robinson and remand for proceedings consistent with
this opinion.
---
¶20 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.