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Sanders v. Leavitt8/31/2001
and failure to state a claim on March 19, 1998. The four attorney defendants filed their motion to dismiss on April 1, 1998. On July 15, 1998, the district court granted both motions, resulting in the dismissal of all of the defendants except for the Division of Child and Family Services (DCFS) and the Widdisons.
Regarding the attorney defendants' motion to dismiss, the district court did not indicate on what basis it granted the motion. We are thus left to assume it was based upon the contention that the attorney defendants did not owe a duty to protect Breanna from physical harm, an argument placed before the court in the attorney defendants' memorandum in support of the motion to dismiss, the plaintiff's opposition, and the attorney defendants' reply.
In granting the motion to dismiss filed by the state defendants and the monitoring panel defendants, the district court provided reasoning. In sum, the district court dismissed all of the monitoring panel defendants and all of the state defendants, except for DCFS, for one of three reasons: (1) plaintiff failed to file a notice of claim required by section 63-30-12 of the Utah Code, (2) the court lacked jurisdiction to enforce the federal consent decree in David C. as a state court, or (3) the defendants did not owe a duty of care to Breanna. The district court dismissed " ount I of plaintiff's complaint," the wrongful death action against the state defendants, for "failure to file a notice of claim as required by Utah Code Ann. ยง 63- 30-12" as to all of the state defendants, except for DCFS. The monitoring panel defendants were also dismissed because plaintiff failed to file a notice of claim. The district court dismissed " ount II of plaintiff's complaint," the breach of contract claim against the state defendants, as to the eight state defendants and the four monitoring panel defendants for lack of jurisdiction to enforce the consent decree in David C. The district court dismissed " ount III of plaintiff's complaint," the claim for breach of the implied covenant of good faith and fair dealing as to the same eight state defendants and the same four monitoring panel defendants, again for lack of jurisdiction to enforce the consent decree in David C. Finally, the district court dismissed " ount IV," the negligence claim against the monitoring panel defendants, because "they did not owe a duty of care to Breanna Loveless."
Inasmuch as DCFS was not dismissed, DCFS filed a motion for summary judgment on November 4, 1998. DCFS argued that it was immune from suit under the Utah Governmental Immunity Act based upon the three- step approach in Ledfors v. Emory County School District, 849 P.2d 1162, 1164 (Utah 1993). DCFS reasoned (1) that its alleged negligence, failure to protect Breanna from assault and battery, was a governmental function, (2) that immunity was waived because the injury was proximately caused by the negligent act or omission of the DFS employees assigned to Breanna's case, but (3) that the assault and battery exception to the waiver of immunity applied. The State offered the testimony of Dr. Robert Kirschner, an expert who testified in the Widdison's criminal trial, to support its contention that Breanna's death arose out of assault or battery.
Interestingly, two motions in opposition to DCFS's motion for summary judgment were filed by different attorneys for plaintiff. On December 4, 1998, plaintiff's first lawyer filed a memorandum in opposition. In this first opposition to the motion, plaintiff offered the testimony of Dr. Edward Leis to contradict Dr. Kirschner's testimony. DCFS filed a reply on December 15, 1998. The court heard argument on December 20, 1998, and the court's minutes reflect th
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