Joseph v. Cinnamon Hills Youth Crisis Center et al
MEMORANDUM DECISION AND ORDER granting in part and denying in part 18 Motion for Summary Judgment. Signed by Judge David Nuffer on 2/13/14 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ANTHONY E. JOSEPH,
CINNAMON HILLS YOUTH CRISIS
CENTER, a Utah corporation; BUFF L.
WILLIAMS, an individual; JANE DOES I-V,
ABC CORPORATIONS I-V, and XYZ
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART  DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT
Case No. 2:12-cv-790-DN
District Judge David Nuffer
Defendants Cinnamon Hills Youth Crisis Center ("Cinnamon Hills") and Buff L.
Williams ("Williams") (collectively "Defendants") move for summary judgment 1 against
Plaintiff Anthony E. Joseph ("Joseph") on all claims asserted in his complaint. 2 Joseph opposes
Defendants' motion. 3 Having reviewed the parties' memoranda, the facts of this case, and the
relevant legal authorities, Defendants' motion is GRANTED IN PART and DENIED IN PART.
For the reasons set forth in greater detail below, summary judgment is entered against Joseph on
all of his claims, with the exception of his assault and battery causes of action against Williams.
Disputed issues of material fact preclude summary judgment on those claims.
Cinnamon Hills is a fully accredited secondary school and residential treatment facility
for troubled and disabled youth located in St. George, Utah. In 2005, Joseph began his
Docket no. 18, filed September 4, 2013.
Docket no. 3-1, filed in the Fifth Judicial District Court in and for Washington County, State of Utah, on July 25,
2012, and removed to this court on August 13, 2012.
Opposition to Defendants' Motion for Summary Judgment ("Opposition"), docket no. 19, filed October 2, 2013.
employment with Cinnamon Hills as an Academic Assistant, and after obtaining his Utah
teaching certificate, taught physical education. In 2009, Williams became Director and Chairman
of the Board at Cinnamon Hills.
Joseph alleges that after Williams became the Director and Chairman of the Board, the
working environment at Cinnamon Hills deteriorated. He claims that Williams began to verbally
and physically assault him, targeting him because he was not a member of the Church of Jesus
Christ of Latter-day Saints like Williams. Joseph contends that he became the subject of religious
discrimination in violation of Title VII and that the work environment became so hostile he was
forced to resign. Joseph brought suit against Defendants alleging six causes of action in his
complaint, including: assault (against Williams), battery (against Williams), religious
discrimination in violation of Utah Code Ann. § 34A-5-106 and Title VII of the Civil Rights Act
of 1964 (against Cinnamon Hills and Williams), constructive wrongful termination in violation
of Utah Code Ann. § 34A-5-106 and Title VII of the Civil Rights Act of 1964 (against Cinnamon
Hills), constructive wrongful termination in violation of public policy (against Cinnamon Hills),
and intentional infliction of emotional distress (against Cinnamon Hills and Williams).
Defendants dispute Joseph's recitation of the events leading to his resignation but not in
ways material to decision of this motion as to most of Joseph’s claims. Defendants argue that
Joseph has not alleged sufficient facts to successfully bring Title VII or constructive discharge
claims and that the facts alleged cannot sustain the balance of Joseph's claims.
STATEMENTS OF UNDISPUTED FACT
Joseph was employed by Cinnamon Hills from 2005 through September 14, 2011
as a physical education teacher. 4
Compl. at ¶ 9, docket no. 3-1, filed July 25, 2012 in the Fifth District Court in and for Washington County, State of
Utah, and removed to Utah District Court on August 3, 2012; Answer at ¶ 9, docket no. 9, filed August 22, 2012.
In 2009, Williams became the Director and Chairman of the Board at Cinnamon
Joseph is Catholic. Williams is Mormon. 6
During his employment at Cinnamon Hills, Joseph's performance reviews were
always good and he was never denied a promotion or advancement. 7
Joseph has not alleged, nor did he experience, a demotion, pay cut, transfer to
unbearable working conditions, or any similar official adverse employment action. 8
Cinnamon Hills' Employee Handbook contains an anti-harassment policy which
prohibits harassment based on religion. It also contains a harassment complaint procedure, which
requires any allegations of harassment to be reported to the Human Resources Department or the
Program Director. 9
Allegations of Religious Discrimination
In April 2011, the first incident of claimed religious harassment occurred when
Joseph was wearing a BYU T-shirt. Joseph testified that Williams said to him: "Nice shirt. That
will sustain your employment here." 10
Subsequently, on his own accord, Joseph purchased other clothing affiliated with
BYU and began wearing it to work at Cinnamon Hills. 11 Joseph alleges that Williams
complimented him on his BYU clothing four or five times. 12
Defendants' Motion for Summary Judgment and Memorandum in Support (the "Motion") at ii, docket no. 18;
Opposition at 1-2, docket no. 19; Decl. of Buff Williams at ¶ 2, docket no. 18-6, filed September 4, 2013.
Joseph Depo. at 34:1-8, docket no. 18-1, filed September 4, 2013; Decl. of Buff Williams at ¶ 3, docket no. 18-6.
Joseph Depo. at 44:23-45:25, docket no. 18-1.
Motion at xvii, ¶ 38, docket no. 18; undisputed in Opposition, so deemed admitted per DUCivR 56-1(c)(iii).
Decl. of Tara Smith at ¶ 16, docket no. 18-3, filed September 4, 2013; Motion, Exhibit 11, excerpt from Cinnamon
Hills' Employee Handbook, Anti-Harassment Policy, docket no. 18-12, filed September 4, 2013.
Joseph Depo. at 38:9-39:5, docket no. 18-1.
On July 7, 2011, Joseph's birthday, the second incident of claimed religious
harassment occurred. Joseph claims that Williams told Joseph that he expected Joseph to be
"baptized Mormon and temple worthy within one year." Joseph says he responded that there was
a "zero percent probability of that." 13
At the end of July 2011, the next incident of claimed harassment occurred.
Joseph testified that he and Williams were walking across the Cinnamon Hills campus when
Williams asked: "[Joseph], are you going to church Sunday?" Joseph replied: "Unlikely," to
which Williams allegedly responded: "Maybe I will drive you to the general conference like I
did [another employee]." 14
In July or August 2011, Joseph claims that Williams made two other
discriminatory comments. Williams allegedly asked Joseph: "You making church Sunday? It'd
be good for you." Williams also allegedly told Joseph: "This Sunday you're going to make your
appearance." Joseph testified that he made no response to these comments. 15
Joseph admits that despite receiving and signing the Employee Handbook, he
never followed the harassment complaint procedure. 16
Allegations of Physical Abuse
Joseph claims that he suffered numerous confrontations with and abuses by
Williams. These abuses and confrontations included:
Id. at 39:19-40:9, docket no. 18-1.
Id. at 39:6-9, docket no. 18-1.
Id. at 40:20-41:1, docket no. 18-1.
Id. at 35:9-36:13, docket no. 18-1.
Id. at 36:14-37:23, docket no. 18-1.
Id. at 115:12-116:11; 131:8-23, docket no. 18-1.
In 2009 or 2010, Joseph was asked by his immediate supervisor to wear a tuxedo
provided by Cinnamon Hills when he was acting as master of ceremonies for an
upcoming student award ceremony. Joseph argued with his immediate supervisor and
refused to wear the tuxedo, and later complained to a fellow staff member, Mr. Downey,
which was a violation of Cinnamon Hills' policy. After Joseph conducted the award
ceremony in shorts and violated Cinnamon Hills' policy by complaining to Mr. Downey,
he was called into Williams' office and reprimanded. Joseph claims that Williams
accused him of going over Williams' head by speaking to Mr. Downey and threatened to
fire Joseph if it happened again. Joseph also claims that during this incident, Williams
pointed his finger at Joseph while yelling, but never made contact with Joseph. 17
In February or March 2010, Joseph argued with Williams after Williams asked
that the students exercise instead of playing games during the physical education period.
Joseph admits that he responded to this request by inquiring into Williams' credentials
and telling Williams that his request was "the most ridiculous idea [he] had ever heard."
When Joseph refused to implement exercise instead of games, Joseph claims that
Williams yelled and pointed his finger at Joseph, making contact with Joseph's chest
On another occasion, Joseph claims that Williams, after seeing a student sitting on
the side instead of participating in physical education, told Joseph that if the student was
well enough to walk to class, that he was well enough to participate in physical
education. Joseph admits that he and Williams argued about this instruction, and that
Id. at 56:8-59:20, docket no. 18-1.
Id. at 64:1-66:4; 67:20-68:18, docket no. 18-1.
Williams became angry and yelled and pointed his finger at Joseph's chest, making
contact with his chest several times. 19
Another incident of alleged abuse occurred when Williams became angry with
Joseph because students were playing dodgeball, which was not allowed at Cinnamon
Hills. Joseph claims that Williams pointed his finger at Joseph, but could not recall
whether Williams made contact with Joseph. 20
In February or March 2011, Williams required all of the teachers at Cinnamon
Hills to meet with him and justify their employment because census numbers were going
down. Williams concluded these teacher meetings by stating that all of the teachers could
keep their jobs, but that he could not guarantee anything in the future. 21 Thereafter
through August 2011, Williams required Joseph to continue reporting to him monthly to
justify his employment; Joseph was the only employee required to do this. 22
In April 2011, Joseph claims that after he complained to Cinnamon Hills'
principal about a new policy instituted at Cinnamon Hills, Williams called Joseph into his
office and yelled at Joseph about going over Williams' head to complain about the new
policy. Joseph claims that while Williams was yelling at him, Williams was pointing his
finger at Joseph, and that it made contact with Joseph's chest. 23
In August 2011, Joseph complained after being instructed by the on-site
supervisor to report to the library to help clean graffiti out of the textbooks. Joseph was
Id. at 69:10-73:12, docket no. 18-1.
Id. at 73:18-74:4, docket no. 18-1.
Id. at 102:2-103:1, docket no. 18-1.
Id. at 103:5-25, docket no. 18-1.
Id. at 49:16-55:16, docket no. 18-1.
referred to Williams, who allegedly told Joseph that student enrollment was down, and
that the complainers would be the first to be laid off. 24
Also in August 2011, Williams called Joseph into his office and told Joseph that
he was talking too much, and instructed him to act like a mute. Joseph was subsequently
reprimanded by Williams for being too quiet at work. 25
Finally, the last incident of alleged abuse or confrontation occurred on September
14, 2011. Joseph removed padded mats lining the walls and placed them on the gym floor
at Cinnamon Hills as part of a physical education activity. The padded mats had a wood
backing, which was placed directly on the floor and scratched it. When Williams
discovered the scratches on the gym floor, he allegedly demanded that Joseph meet him
in the gym to discuss the damage. Joseph claims that Williams used "mean words" to talk
to him while pointing his finger at Joseph. During the finger pointing, Joseph claims that
Williams' fingers jabbed him in the neck or lower chin area. During this confrontation,
Joseph quit his job with Cinnamon Hills.26
Joseph believes that Williams intended to make physical contact with him in the
incidents where Williams' finger touched Joseph's chest or neck/lower chin area. 27
Joseph never suffered any physical injury from the times when Williams' finger
made contact with him, though he did testify that he believed that Williams was trying to bully
and intimidate him and that he suffered "cataclysmic emotional distress" from these incidents. 28
Id. at 59:21-61:19, docket no. 18-1.
Id. at 104:20-107:23, docket no. 18-1.
Id. at 77:13-78:1; 89:2-92:12, docket no. 18-1.
Id. at 92:19-93:24, docket no. 18-1..
Id. at 93:20-21; 95:17-96:16, docket no. 18-1.
Joseph never sought treatment for his purported emotional distress. 29 Joseph never told Williams
that he was feeling emotional distress in these incidents. To the contrary, Joseph testified that he
would always stay calm. 30
Williams denies that he ever had any intent to touch Joseph with his finger. 31
At no time did Williams ever say anything that would connect the alleged
religious discrimination with any of the alleged physical abuse. Joseph admits that he was only
speculating that the alleged abuse was connected to his religion. 32
Williams did not single out Joseph for this allegedly abusive treatment. Most
employees of Cinnamon Hills who met with Williams described him as abrasive and verbally
SUMMARY JUDGMENT STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." 34 When
analyzing a motion for summary judgment, the court must "view the evidence and draw all
reasonable inferences therefrom in the light most favorable to the party opposing summary
judgment." 35 However, "the nonmoving party must present more than a scintilla of evidence in
favor of his position." 36 A dispute is genuine only "if the evidence is such that a reasonable jury
Id. at 96:17-97:11, docket no. 18-1.
Id. at 67:22-68:9, docket no. 18-1.
Decl. of Buff Williams at ¶¶ 11-13, docket no. 18-6, filed September 4, 2013.
Joseph depo. at 108:3-8; 112:3-6, docket no. 18-1.
Jim Downey Depo. at 37:2-16, docket no. 18-9, filed September 4, 2013; Terry Shammo depo. at 16:2-17:2,
docket no. 18-11, filed September 4, 2013.
Fed. R. Civ. P. 56(a).
Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1204 (10th Cir. 2011) (internal quotations omitted).
Ford v. Pryor, 552 F.3d 1174, 1178 (10th Cir. 2008) (citations omitted).
could return a verdict for the nonmoving party." 37 Title VII claims "can be resolved in a
summary judgment proceeding if there are no genuine issues of material fact remaining for
Joseph concedes that his claims for discrimination in violation of the Utah
Antidiscrimination Act and for Title VII violations (against Williams in his individual capacity)
should be dismissed. 39 Based upon these concessions, Joseph's causes of action for religious
discrimination and constructive discharge in violation of Utah Code Ann. § 34A-5-108 and his
Title VII claims brought directly against Mr. Williams are dismissed. Plaintiff's remaining causes
of action are discussed in greater detail below.
Title VII Religious Discrimination and Hostile Work Environment Claims.
A hostile work environment under Title VII occurs when conduct in the workplace
"unreasonably interfer[es] with an individual's work performance or creat[es] an intimidating,
hostile, or offensive working environment." 40 The workplace must be "permeated with
discriminatory intimidation, ridicule, and insult" so "severe or pervasive" to adversely affect the
victim's employment. 41 "Title VII does not establish a general civility code." 42
In order to successfully bring a Title VII religious harassment claim, "a plaintiff must
show that the environment was both objectively and subjectively hostile or abusive" 43 and that
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kerber v. Qwest Group Life Ins. Plan, 647 F.3d 950,
959 (10th Cir. 2011).
Gross v. Burggraf Const. Co., 53 F.3d 1531, 1539 (10th Cir. 1995).
See Opposition at 3, docket no. 19.
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).
Spague v. Adventures, Inc., 121 F. App'x 813, 816-17 (10th Cir. 2005).
Morris v. City of Colorado Springs, 666 F.3d 654, 663 (10th Cir. 2012) (citations omitted)
Id. at 664 (internal quotations omitted).
the hostility stemmed from religious animus. 44 To survive summary judgment, Joseph's facts
must support the inference of a religiously hostile work environment. 45 Joseph cannot meet this
Joseph's Claims Fail the Subjective Prong.
The only admissible evidence of Joseph complaining about anything in this case is
related to his complaints of the alleged physical and verbal abuse committed by Williams. But
none of this alleged abuse was related to Joseph's religion. Williams may have been a difficult
and abusive person to work for, but this does not create an actionable Title VII claim. The
evidence and testimony simply does not show that any of the alleged physical and verbal abuse
was in any way related to Joseph's religion. In fact, by Joseph's own admission, the abuse began
some time before Williams was even aware of Joseph's religion.
Joseph also admits that he can only speculate that Williams' mistreatment was motivated
by religious animus. 46 Speculation and "beliefs" are insufficient to survive summary judgment. 47
Even if Joseph's speculation was admissible evidence, it is undermined by his testimony that
Williams treated most employees at Cinnamon Hills poorly, regardless of their religion. 48, 49
Joseph's claims fail the subjective prong to successfully assert a Title VII claim for religious
Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994).
Joseph Depo. at 108:1-8, docket no. 18-1.
Fritzsche v. Albuquerque Mun. School Dist., 194 F.Supp. 2d 1194, 1203 (D.N.M. 2002) (citing U.S. v. Bowers,
660 F.2d 527 (5th Cir. 1981)) (holding that speculative testimony is devoid of probative value).
Jim Downey Depo. at 37:2-16, docket no. 18-9.
See Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) (holding that because the plaintiff could not show that
he was singled out for abuse arising from his race, his Title VII claims failed).
Joseph Did not Work in an Objectively Hostile or Abusive Environment.
To evaluate the "objective" prong, all of the circumstances surrounding Joseph's work
environment should be considered. These circumstances "may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work
performance." 50 A few isolated incidents of sporadic remarks are insufficient to establish a
hostile work environment. 51 "Instead, there must be a steady barrage of opprobrious
Taking all of Joseph's allegations as true, there were only five statements related in any
way to religion, two of which occurred before Williams even knew that Joseph was Catholic and
not LDS. These five statements were relatively innocuous and were not accompanied by any
physical contact, finger pointing, or verbal abuse, and were not threatening or humiliating. The
five remarks cannot objectively establish a "steady barrage" of comments, much less
"opprobrious" ones. Joseph's own testimony establishes that the alleged religious remarks never
unreasonably interfered with his work performance. Joseph testified that his performance
reviews were always good and that he was never denied a promotion or advancement. 53 Even
considering Joseph's statements in his affidavit 54 that he felt pressure from Williams to conform
to LDS church expectations, 55 that he feared harassment from Williams, 56 and that he couldn’t
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
See Morris, 666 F.3d at 666.
Morris, 666 F.3d at 666.
Joseph Depo. at 44:23-45:25, docket no. 18-1.
Joseph Aff., docket no. 19-1, filed October 2, 2013.
Joseph Aff. at ¶ 12, docket no. 19-1, filed October 2, 2013.
enjoy his weekends and felt guilty if he didn't go to church on Sunday, 57 Joseph also stated that
he "never had a negative write-up during [his] employment and had excellent periodic
evaluations." 58 He also testified in that same affidavit that "I did all I could so that this
harassment from Buff Williams did not affect how I interacted with the kids, my job
performance working with the kids." 59 By Joseph's own admission, Williams' religious
comments did not interfere with his work performance. Joseph's allegations do not subjectively
or objectively establish religious discrimination or a hostile work environment to sustain a Title
In response to Defendants' motion, Joseph made new claims that had never before been
raised in his deposition. For example, notwithstanding the fact that Joseph was explicit in his
deposition testimony that the first incident of alleged religious discrimination occurred in April
2011 (the BYU shirt incident), in response to Defendants' motion, Joseph claims that in
December 2010, Williams told Joseph to bring a Mormon girl to a Christmas party. 60 This
testimony contradicts his unequivocal deposition testimony. However, this additional fact does
not elevate the purported discriminatory conduct into "severe and pervasive" territory.
In his Opposition, Joseph also claims that church meetings modeled after LDS sacrament
meetings were held at Cinnamon Hills every Sunday, and that Williams was aware of these
meetings. But again, even considering this new testimony, the allegations do not create an
actionable Title VII claim because there is nothing severe and pervasive about any of Joseph's
claims. Summary judgment in favor of Cinnamon Hills and against Joseph on his Title VII
Id.at ¶ 13.
Id. at ¶ 11.
Id. at ¶ 14.
Id. at ¶ 8.
claims is proper. Because the evidence fails to support Joseph's Title VII claims, whether the
Ellerth-Faragher defense applies to Cinnamon Hills is moot.
Constructive Discharge Claim Under Title VII.
A necessary component of a claim for constructive discharge under Title VII is a
successful claim for religious discrimination under Title VII. If Joseph cannot state a successful
Title VII claim for religious harassment, his constructive discharge claim related to that same
conduct must also fail. 61 The facts alleged fail to support the inference that Joseph suffered
religious discrimination or that the work environment at Cinnamon Hills was subjectively and
objectively hostile based on Joseph's religion. Summary judgment against Joseph and in favor of
Cinnamon Hills on his constructive discharge claim under Title VII is proper.
Constructive Wrongful Termination in Violation of Public Policy.
A claim for wrongful termination in violation of public policy requires a showing of the
following: (1) termination of a plaintiff's employment; (2) the existence of a clear and
substantial public policy; (3) the plaintiff's conduct implicated that public policy; and (4) the
plaintiff's termination and conduct in furtherance of the public policy are causally connected. 62
Joseph's claim fails for several reasons.
First, Joseph's employment was not terminated. The Utah Supreme Court has held that
"[t]he concept of discharge is fairly concrete – either the employer actually terminated the
employee or the employee resigned under circumstances so unbearable that no reasonable
employee could tolerate them." 63 Joseph quit his job with Cinnamon Hills; he was not
constructively discharged. Reasonable jurors have experienced working for difficult bosses and
See Pennsylvania State Police v. Suders, 542 U.S. 129, 146-47 (2004).
See Rackley v. Fairview Care Ctrs., Inc., 2001 UT 32, ¶ 14, 23 P.3d 1022.
Touchard v. La-Z-Boy Inc., 2006 UT 71, ¶ 30, 148 P.3d 945.
would not find that Williams' personality deficiencies, yelling, finger pointing, and occasional
finger contact so unbearable that Joseph had no option but to quit. Without termination of his
employment, Joseph's constructive wrongful termination claim fails.
Second, there is no public policy protecting employees from working for a boss who yells
and gets angry. As undesirable as Williams' alleged behavior was at times, his conduct does not
create a cause of action. Joseph's reliance on OSHA and on executive orders issued by governors
of the State of Utah is unavailing. OSHA's mandate for a workplace that is "free from
recognizable hazards that are causing or likely to cause death or serious harm to employees" 64
does not apply to working for an erratic boss who engages in the conduct alleged by Joseph. The
executive orders issued by Governors Leavitt 65 and Huntsman 66 are inapplicable because
Cinnamon Hills is not a division or department of the State of Utah.
For these reasons, summary judgment against Joseph on his constructive wrongful
termination in violation of public policy claims is proper.
Intentional Infliction of Emotional Distress.
A claim for intentional infliction of emotional distress requires proof that the defendant
intentionally engaged in some conduct toward the plaintiff, (a) with the purpose
of inflicting emotional distress, or, (b) where any reasonable person would have
known that such would result; and his actions are of such a nature as to be
considered outrageous and intolerable in that the offend against the generally
accepted standards of decency and morality. 67
The first prong of this test requires Joseph to prove that Williams acted with the purpose
of inflicting emotional distress. It is insufficient to prove that Williams intentionally acted in a
29 U.S.C. § 654, 5(a)(1).
Executive Order, Policy on Domestic Violence within the Workplace,
http://www.rules.utah.gov/execdocs/1999/e1999-06-04a.htm, last visited February 12, 2014.
Executive Order, Violence Against Women in the Workplace,
http://www.rules.utah.gov/execdocs/2005/ExecDoc97589.htm, last visited February 12, 2014.
Franco v. The Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 25, 21 P.3d 198.
way that caused Joseph distress – the distress must have been the intent of the conduct, not a
byproduct of it. 68 Joseph's testimony and the other evidence do not support this first prong.
Joseph cannot prove that Williams intended to cause Joseph distress. Rather, his testimony
establishes that Williams' actions were an effort to make Joseph follow directions and to not be
The facts also do not support the second prong. Williams' alleged conduct and behavior,
while clearly not exemplary, is not so "outrageous and intolerable" that it "offend[s] against the
generally accepted standards of decency and morality." Joseph's claim of intentional infliction of
emotional distress fails as a matter of law.
Assault and Battery.
In Utah, allegations of assault require proof that (1) the defendant acted, intending to
cause harmful or offensive contact with the plaintiff, or imminent apprehension of such contact;
(2) as a result, the plaintiff was put in imminent apprehension of harm or contact; and (3) the
plaintiff suffered injuries proximately caused by the defendant's actions. 69 If the defendant's
actions result in an actual touching of the plaintiff, they constitute a battery. 70
The parties dispute whether Williams acted with the requisite intent to establish claims of
assault and battery. Williams contends that it was an "incidental" touching that did not cause any
harm to Joseph. Joseph claims that it was not incidental, but that Williams intended to contact
Joseph's chest. 71 Joseph also testified that he did feel like harm was imminent at times. 72
See id. at ¶ 27.
See D.D.Z. v. Molerway Freight Lines, Inc., 880 P.2d 1, 3 (Utah Ct. App. 1994).
Joseph Depo. at 93:22-24, docket no. 18-1.
Joseph Depo. at 66:20-25; 73:6-10; 89:11-14, 17-21, docket no. 18-1.
In construing the evidence in a light most favorable to Joseph, and in reviewing his
testimony in context, a reasonable jury could find that Williams assaulted and battered Joseph.
Therefore, summary judgment is improper on these claims, which, though relatively
insignificant, will need to be tried to a jury.
IT IS HEREBY ORDERED that Defendants' motion summary judgment is GRANTED
IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that summary judgment is GRANTED in favor of
Defendant Cinnamon Hills on all Joseph's claims against it.
IT IS FURTHER ORDERED that summary judgment is GRANTED on all claims against
Defendant Buff Williams except for Joseph's causes of action for assault and battery.
IT IS FURTHER ORDERED that summary judgment in favor of Defendant Buff
Williams on Joseph's causes of action for assault and battery is DENIED because disputed issues
of fact preclude summary judgment.
Signed February 13, 2014.
BY THE COURT:
United States District Judge
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