E.S v. University of Utah Medical Center

2024 UT App 57

THE UTAH COURT OF APPEALS

E.S., AND M.S., ON BEHALF OF MINORS G.S. AND M.S.,
Appellants,
v.
UNIVERSITY OF UTAH MEDICAL CENTER,
Appellee.

Opinion
No. 20230197-CA
Filed April 18, 2024

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

Alan S. Mouritsen and Whitney E. McKiddy,
Attorneys for Appellants
Sean D. Reyes and Peggy E. Stone,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

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

1. As explained below, Plaintiffs are three sisters, each of whom
alleges that Nurse sexually abused her many years after the two
older sisters were patients in the University’s NICU. Two of the
sisters are still minors and are represented by their father in this
suit, while the oldest sister is now an adult. For ease of reference,
(continued…)
E.S. v. University of Utah

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.

BACKGROUND 2

¶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

we’ll refer to them collectively as “Plaintiffs” throughout this
opinion.

2. “On appeal from a motion to dismiss, we review the facts only
as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” Koerber v. Mismash,
2013 UT App 266, ¶ 3, 315 P.3d 1053 (quotation simplified).

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E.S. v. University of Utah

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

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E.S. v. University of Utah

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

¶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

3. In its motion to dismiss, the University also argued that it
enjoyed immunity to claims relating to “mental anguish” under
the Immunity Act. The district court did not rule on this basis,
however, and we have no occasion to address it.

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E.S. v. University of Utah

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

¶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”).

¶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

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E.S. v. University of Utah

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 (“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.

¶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

4. We have no need to determine whether there’s any conceptual
distinction between the terms “delivered, transmitted, and sent”
(continued…)

20230197-CA 6 2024 UT App 57
E.S. v. University of Utah

Id § 63G-7-401(3)(b)(ii) (identifying in detail who the recipient
must be for a range of governmental entities). As relevant here,
the notice of claim must be delivered to “the attorney general,
when the claim is against the state.” Id. § 63G-7-401(3)(b)(ii)(E).
The Immunity Act then defines “State” to include “each office,
department, . . . hospital, college, university, . . . or other
instrumentality of the state.” Id. § 63G-7-1-102(10) (emphases
added). Finally, the statute provides something of a catch-all
provision, also allowing delivery upon “the agent authorized by
a governmental entity to receive the notice of claim” under section
63G-7-401(5)(e). Id. § 63G-7-401(3)(b)(ii)(G).

¶12 The notice of claim serves two important purposes: first, it
alerts the governmental entity to the alleged facts at issue; and
second, it provides the governmental entity with “an opportunity
to correct the condition that caused the injury, evaluate the claim,
and perhaps settle the matter without the expense of litigation.”
Rushton v. Salt Lake County, 1999 UT 36, ¶ 20, 977 P.2d 1201
(quotation simplified). To aid in these purposes, the statute
imposes a 60-day waiting period after the party files the notice of
claim, thereby giving the governmental entity a chance to respond
before the case proceeds to litigation. See Utah Code § 63G-7-
403(2)(a)(ii); see also McGraw v. University of Utah, 2019 UT App
144, ¶ 12, 449 P.3d 943.

¶13 The Immunity Act “demands strict compliance,” and this
demand extends to the requirements relating to the notice of
claim. Wheeler, 2002 UT 16, ¶ 13. In Canfield v. Layton City, for
example, our supreme court held that it “is well established that
failure to comply precisely with the notice requirement, where it
applies, deprives the court of subject matter jurisdiction.” 2005 UT
60, ¶ 12, 122 P.3d 622. And in Thomas v. Lewis, the court similarly
held that the “notice of claim provisions” of the Immunity Act are

within this provision. For ease of reference, we’ll refer to it as a
“delivery” requirement through the remainder of this opinion.

20230197-CA 7 2024 UT App 57
E.S. v. University of Utah

“jurisdictional” and “determine[]” a court’s “authority to address
the merits of the case.” 2001 UT 49, ¶ 13; accord Rushton, 1999 UT
36, ¶ 18 (holding that the “[f]ailure to file such notice deprives the
court of subject matter jurisdiction”).

¶14 Given the level of specificity in this scheme, it is not enough
for a party to deliver notice somewhere within the subdivision
responsible for the alleged misconduct. See Greene, 2001 UT 109,
¶ 14 (explaining that the amendment to the statute that identified
who a notice must be delivered to “reinforce[d] the rule of strict
compliance”). In this sense, “[a]ctual notice” to the governmental
entity in question “does not cure a party’s failure to meet these
requirements.” Rushton, 1999 UT 36, ¶ 19. Instead, Utah courts
have frequently dismissed suits for failure to deliver the notice of
claim to the proper governmental entity. See, e.g., Wheeler, 2002 UT
16, ¶¶ 15–16 (holding that a claim was barred where notice was
filed with the county commissioners and an insurance carrier
rather than with the county clerk); Greene, 2001 UT 109, ¶¶ 5, 17
(holding that a claim was barred where notice was delivered to
Utah Transit Authority’s claims adjustor rather than the president
or secretary of its board); McGraw, 2019 UT App 144, ¶¶ 17–18
(holding that a claim was barred where a document that might
otherwise have qualified as a valid notice was delivered “to the
University’s General Counsel and not” the attorney general or the
attorney general’s “authorized agent”).

¶15 In an apparent attempt to facilitate compliance with this
requirement, the Immunity Act also requires governmental
entities to “file a statement with the Division of Corporations and
Commercial Code with the Department of Commerce” (the
Division) listing the “office or agent designated to receive a notice
of claim,” along with certain contact information set forth in Utah
Code section 63G-7-401(5)(a). The Division, in turn, is charged
with “maintain[ing] an index of the statements,” id. § 63G-7-
401(6)(a)—which we’ve sometimes referred to as a “database,” see
Suazo v. Salt Lake City Corp., 2007 UT App 282, ¶ 2, 168 P.3d 340;

20230197-CA 8 2024 UT App 57
E.S. v. University of Utah

McTee v. Weber Center Condo. Ass’n, 2016 UT App 134, ¶ 8 n.11, 379
P.3d 41—and the Division is tasked with making that index or
database accessible to the public. Utah Code § 63G-7-401(6)(b). 5

¶16 The Immunity Act also sets forth a few exceptions under
which a court may still have jurisdiction even when a party fails
to strictly comply with the delivery requirement. One of them
relates to the database requirement and is properly described as a
governmental fault exception. Under the terms of this exception,
a “governmental entity may not challenge the validity of a notice
of claim on the grounds that it was not directed and delivered to
the proper office or agent if the error is caused by the
governmental entity’s failure to file or update” its statement with
the Division. Id. § 63G-7-401(7). 6

¶17 In Suazo v. Salt Lake City Corporation, we discussed and
applied the governmental fault exception. 2007 UT App 282, 168
P.3d 340. In that case, Salt Lake City had changed its designated
recipient in the Division’s database three days before a potential
plaintiff filed his notice of claim. Id. ¶¶ 2–3. In an affidavit, the
plaintiff’s counsel subsequently averred that he had obtained the
older, now-incorrect information from the database, although he
did not specify when exactly he had done so. Id. ¶¶ 2, 11. But even
accounting for that, we still held that the governmental fault
exception did not apply because nothing in the record
“suggest[ed] that the City’s failure to update the database” until
three days before the incorrect delivery “caused” the plaintiff “to
improperly serve his notice of claim” on the outdated recipient.
Id. ¶ 10 (emphasis in original); see Utah Code § 63G-7-401(7)

5. For simplicity, we’ll refer to it as “the database” moving
forward.

6. Utah Code sections 63G-7-401(8)(a) and (b) set forth additional
exceptions, but we need not address them because Plaintiffs have
not argued that either applies in this case.

20230197-CA 9 2024 UT App 57
E.S. v. University of Utah

(stating that the failure to properly deliver the notice of claim
must be “caused by” the failure in the database). We thus stressed
that when a plaintiff seeks to rely on the governmental fault
exception, “the burden would certainly be on the [plaintiff] to
establish when he or she consulted the database in relation to the
amendment of the database and the improper service. This
information would be necessary to evaluate the reasonableness of
the [plaintiff’s] reliance and determine causation.” Suazo, 2007 UT
App 282, ¶ 12.

¶18 Against this backdrop, we turn to the questions of whether
(i) Plaintiffs delivered a statute-compliant notice of claim to the
proper governmental entity here, and, if not, (ii) whether the
noted statutory exception applies. We agree with the University
that the answer to both questions is no. 7

¶19 First, Plaintiffs failed to deliver a statute-compliant
notice of claim to the proper governmental entity. In arguing
that they did, Plaintiffs assert that although their notice of intent
only invoked the Malpractice Act (as opposed to the Immunity
Act), it satisfied both the Malpractice Act and the Immunity Act
because it set forth the relevant facts, the nature of the claim
asserted, and the known damages. See Utah Code § 63G-7-
401(3)(a).

7. In their brief, the Plaintiffs initially argued that compliance with
the delivery rule for a notice of claim shouldn’t be regarded as a
prerequisite to subject matter jurisdiction, but that it should more
correctly be viewed as a non-jurisdictional claims-processing rule.
But Plaintiffs also recognized that precedent from our supreme
court holds otherwise, and they correctly acknowledged this
again at oral argument. Plaintiffs’ assertion of this argument
seems to have been intended to preserve it for potential review on
certiorari. We thus note that Plaintiffs made this argument and
that, under controlling authority, we reject it.

20230197-CA 10 2024 UT App 57
E.S. v. University of Utah

¶20 But these relate to the required content of the notice. As
discussed above, the Immunity Act also requires a plaintiff to
deliver a notice of claim to the proper governmental entity or its
designated agent. See id. § 63G-7-401(3)(b)(ii). And as also
discussed, a party who seeks to sue the University and its hospital
must deliver the notice of claim to the attorney general. See id.
§ 63G-7-401(3)(b)(ii)(E). Plaintiffs did not. Instead, their notice of
intent was only delivered to a Senior Vice President of the
University of Utah, an Administrator of its Medical Center, and
DOPL. Because Plaintiffs’ notice of intent was not delivered to the
proper party under the Immunity Act, it could not qualify as a
strictly compliant notice of claim under the Immunity Act.

¶21 Second, Plaintiffs have not persuaded us that the noted
exception applies. Plaintiffs invoke only the governmental fault
exception described above, and in their arguments and through a
supporting affidavit from their trial counsel, they point to several
problems with the Division’s database. In that affidavit, trial
counsel claimed that when she visited the Division’s website on
June 27, 2023, the database was accessible only through a search
bar. Trial counsel also claimed that she tried multiple search
terms—including “University,” “University of Utah,” “Medical
Center,” and “Hospital”—and received no results pertaining to
the University generally or to its Medical Center. She claimed that
she also searched “Attorney General” and received no results.
Finally, she said that when she searched for “State,” the database
returned a result that named an “Administrative Assistant” with
an “agutah.gov” email address as the recipient, but that it did not
expressly connect the entry to the attorney general or an attorney
within the attorney general’s office.

¶22 Trial counsel’s uncontested assertions about the apparent
gaps in this database for plaintiffs who intend to sue the
University provide us with some cause for concern. But this
concern is not enough to allow us to apply the governmental fault
exception in Plaintiffs’ favor in this case. This is so because

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E.S. v. University of Utah

Plaintiffs have not carried their burden of showing that any
defects in the database “caused” them “to improperly serve [their]
notice of claim” on the incorrect party. Suazo, 2007 UT App 282,
¶ 10 (emphasis in original). As noted, we held in Suazo that to
satisfy this burden, a plaintiff must establish when he or she
“consulted the database in relation to . . . the improper service,”
explaining that this “information would be necessary to evaluate
the reasonableness of the claimant’s reliance and determine
causation.” 8 Id. ¶ 12.

¶23 We have no such evidence here. Plaintiffs’ notice of intent
was delivered to the wrong governmental entities on December
16, 2021. But the affidavit from counsel describes the results of a
search that was conducted on June 27, 2023, which was 18 months
after that improper delivery. We have no information before us

8. The delivery failure in Suazo was caused by an amendment to
the database that occurred shortly before the delivery of the
notice. And it’s in that context that we required the claimant to
establish when he or she consulted the database. But we have no
difficulty concluding here that the same requirement applies
when a claimant claims that some other database defect (such as
a lack of information about the governmental entity’s agent or
address) caused the failure to properly deliver the notice of claim.
This is so because the statute at issue turns on whether the
improper delivery was “caused by the governmental entity’s
failure to file or update” its statement with the Division. Utah
Code § 63G-7-401(7). The government itself would be in no
position to produce proof about whether the plaintiff’s failure was
“caused by” any such defect. Because of this, as in the Suazo
scenario, it would be incumbent on the plaintiff to provide
information about when the plaintiff searched the database in
relation to the improper delivery, thereby allowing the court to
“evaluate the reasonableness of the [plaintiff’s] reliance and
determine causation.” Suazo v. Salt Lake City Corporation, 2007 UT
App 282, ¶ 12, 168 P.3d 340.

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demonstrating that Plaintiffs searched the database before filing
their notice of intent in December 2021, much less information
showing that any particular defects that existed at that time
affirmatively caused them to deliver their notice to the wrong
governmental entities. Without such information, we have no
basis for applying the governmental fault exception in Plaintiffs’
favor.

¶24 We’re sensitive to Plaintiffs’ suggestion that a dismissal on
this basis may seem to be the product of a technicality. As
Plaintiffs point out, their notice of intent did make it into the
hands of an assistant attorney general, and the attorney general’s
office then capably represented the University’s interests at both
the district court and on appeal. But we’re not free to disregard
the plain terms of the controlling statute or the settled cases
interpreting it. And “where a right is purely statutory and is
granted upon conditions, one who seeks to enforce the right must
by allegation and proof bring himself within the conditions.”
Hamilton v. Salt Lake City, 106 P.2d 1028, 1030 (Utah 1940)
(quotation simplified). Here, the statute stated that to sue the
University, Plaintiffs were required to first deliver a notice of
claim to the attorney general or its designated agent. Because
Plaintiffs did not, the courts lack jurisdiction to consider their suit.
For this reason, the suit must be dismissed.

CONCLUSION

¶25 The district court dismissed Plaintiffs’ suit based on the
court’s conclusion that Plaintiffs could not establish proximate
cause. Because we conclude that Plaintiffs failed to strictly comply
with the notice of claim provision of the Immunity Act, however,
we conclude that the courts lack jurisdiction to consider the suit.
We therefore affirm the dismissal on this basis.

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