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Sanders v. Leavitt8/31/2001
at defendant's motion for summary judgment was granted. However, on August 3, 1999, the district court granted plaintiff's motion to strike evidence offered by DCFS in support of its motion for summary judgment, and the court further granted plaintiff time to file another opposition to DCFS's motion for summary judgment.
Plaintiff's second attorney, D. Kevin DeGraw, entered his appearance and filed the second opposition to DCFS's motion for summary judgment. This second opposition contains the autopsy report of Dr. Leis and an affidavit of Dr. Martin J. Nygaard, both of which plaintiff contends rebut Dr. Kirschner's conclusion that Breanna's death arose from assault and battery because her pneumonia was caused by the physical abuse she suffered. DCFS subsequently filed its reply, advocating that plaintiff failed to dispute that Breanna's death arose out of assault or battery.
The district court granted DCFS's motion for summary judgment. The district court declared that " he testimony of Dr. Robert H. Kirschner, M.D., was accepted into the record" and "established that Breanna Loveless was a physically abused child, . . . and that she developed pneumonia as a direct result of being an abused child." The district court further declared that Dr. Leis "testified that he didn't believe Breanna would have died of pneumonia in the absence of the effect of the physical trauma she also suffered." The district court then concluded that " laintiff's expert, Martin J. Nygaard, M.D., does not go far enough to refute the existence of a causal connection between the pneumonia which caused Breanna's death and the physical abuse she suffered." Accordingly, plaintiff's complaint against DCFS was dismissed.
Plaintiff appeals the dismissal of all sixteen defendants dismissed by the trial court.
ANALYSIS
Plaintiff frankly fails to make clear his argument. That said, it appears to us that plaintiff argues that the state defendants should not have been dismissed because the existing law regarding governmental immunity should be overturned, or, that this court should somehow clarify Taylor ex rel. Taylor v. Ogden City School District, 927 P.2d 159 (Utah 1996). With respect to the other defendants, the monitoring panel defendants and the attorney defendants, plaintiff appears to insist that the attorney defendants should not have been dismissed because the attorneys representing the class in David C. owed Breanna a duty, and the monitoring panel defendants also owed Breanna some type of duty. Plaintiff has not made clear, however, either in the briefs or after being invited to do so at oral argument, the nature of the duty owed by these defendants to Breanna.
The state defendants and the monitoring panel defendants argue that all but DCFS are immune because plaintiff failed to provide them with notice of his claim. In other words, because DCFS was the only state defendant to be notified of plaintiff's claim against it, as is required by section 63-30-12 of the Utah Code, DCFS is the only state defendant or monitoring panel defendant against whom plaintiff's complaint was not barred. The state defendants further contend, however, that even though it received a notice of claim, DCFS is also immune from suit in this case because Breanna's death arose out of an assault and battery. See Utah Code Ann. ยง 63-30-10(2) (1997).
The attorney defendants argue they were properly dismissed because, as counsel for the plaintiff class in the case of David C., they never assumed a duty to protect Breanna and other members of the plaintiff class from physical harm caused by third parties. The attorney defendants further insist that plaintiff's appeal is fri
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