Denson v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, The et al
Filing
29
MEMORANDUM DECISION AND ORDER granting Defendant Joseph Bishop's 11 Motion to Dismiss; granting in part and denying in part Defendant The Corporation of the President of the Church of Jesus Christ of Latter-Day Saints' 12 Motion to Dismiss for Failure to State a Claim. Signed by Judge Dale A. Kimball on 8/13/18. (eat)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MCKENNA DENSON,
MEMORANDUM DECISION AND
ORDER
Plaintiff,
v.
Case No. 2:18-cv-00284
THE CORPORATION OF THE PRESIDENT
OF THE CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS, a Utah corporation;
and JOSEPH L. BISHOP,
District Judge Dale A. Kimball
Defendants.
This matter is before the court on Defendants the Corporation of the President of the
Church of Jesus Christ of Latter-Day Saints’ (“COP”), and Joseph Bishop’s (collectively
“Defendants”) Motions to Dismiss. On July 18, 2018, the court held a hearing on the motions. At
the hearing, the Plaintiff McKenna Denson (“Denson”) was represented by Craig K. Vernon and
Jeffrey R. Oritt. Defendant COP was represented by David J. Jordan and Wesley F. Harward and
Defendant Bishop was represented by Andrew G. Deiss. The court took the motions under
advisement. Based on the briefing filed by the parties and the law and facts relevant to the
pending motion, the court issues the following Memorandum Decision and Order GRANTING
in part and DENYING in part the COP’s Motion to Dismiss and GRANTING Bishop’s Motion
to Dismiss in its entirety.
1
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BACKGROUND1
This case involves claims arising from an alleged sexual assault. In 1983, Bishop was
called by the COP to be the President of the Mission Training Center (MTC). Bishop accepted
the position and served as the President of the MTC in Provo, Utah from 1983 to 1986. Prior to
being the President of the MTC, Bishop was the President of the Buenos Aires North Mission in
Argentina from 1978 to 1982.
The Complaint asserts that Bishop is a self-proclaimed sexual predator and sex addict.2
Compl., at ¶ 16. Bishop allegedly admits to being a sexual predator and sex addict his entire life
and further admits to engaging in a pattern of inappropriate sexual conduct toward women
throughout his life, including prior to being called as the MTC president. Id. Bishop’s sexual
improprieties include incidents with a woman while he was both serving as a young missionary
in Argentina, and also as the Mission President in Argentina. Id. He also allegedly engaged in
similar sexual improprieties while serving in a bishopric in Florida.3 The Complaint asserts that
“Bishop admits to disclosing some details of inappropriate sexual actions toward women to his
mission president and to his church leaders in Florida.” Id.
Prior to serving as a mission president in Argentina, Bishop was the President of Weber
State University. Id. at ¶ 17. While in that position there allegedly were public claims, known to
Church leaders, of Bishop acting inappropriately toward women and allegations of dishonesty
and lack of integrity. Id.
1
The background facts are taken from Denson’s complaint. On a motion to dismiss all well-pleaded facts are
presumed to be true. The court’s role is to determine if the facts, as stated in the complaint, state a claim upon
which relief may be granted.
2
The Complaint states “Bishop admits in a December 2017 recording that has become public to being a lifelong
sexual predator and having a sexual addiction. Throughout this interview, Bishop discloses several incidents with
women, ranging from inappropriate behavior to full-on sexual assault and/or molestation.”
3
The Complaint is vague on the details of this incident.
2
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Despite disclosing to Church leaders previous incidents of sexual impropriety, Bishop
was called as President of the Buenos Aires North Mission in Argentina in approximately 1978,
where he was placed in charge of hundreds of young missionaries, male and female. Id at ¶ 18.
In 1977, Elder Robert E. Wells was the Church’s area representative for Chile, Argentina,
Paraguay, and Uruguay. Id. at ¶ 19. Elder Wells was responsible for the activities of the area
missions and their leaders, including Bishop. Id.
During his tenure as Mission President in Argentina, Bishop counseled one of his sister
missionaries who was allegedly “besieged with evil spirits.” Id. at ¶ 20. The complaint alleges
that according to Bishop, those spirits attacked him. Id. To save his soul, he decided to confess
all his previous sins. Id. Bishop disclosed to Elder Wells every indiscretion, sin, or other misdeed
that had occurred up to that point in his life, including his sexual addiction and previous
instances of sexual predation against women. Id.
Following Bishop’s disclosure of his sexual improprieties to Elder Wells, there allegedly
is no indication that the COP acted to investigate these possible crimes or investigate whether,
under its own internal policies, Bishop should be subject to Church discipline. Id. at ¶ 21.
Denson alleges that Church discipline would have protected her and other women by alerting
them of Bishop’s dangerous propensities. Id.
Rather than facing Church discipline for his sexual misconduct, Bishop was called to
serve as the President of the MTC. Id. at ¶ 22. Bishop was elevated to a position where he had
authority over thousands of young women who were training to be missionaries. Id. Denson was
one of these missionaries under Bishop’s authority. Id. at ¶ 23.
Denson alleges that she had a traumatic and challenging adolescence, including past
physical and sexual abuse. Id. She had a baby prior to marriage that she gave up for adoption
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through LDS Social Services. Id. Denson received special permission to serve a mission for her
Church and entered the MTC in January of 1984. Id. at ¶ 24.
Denson believes that she was singled out by Bishop from her first day arriving at the
MTC. Id. at ¶ 25. The day Denson entered the MTC, Bishop selected her out of thousands of
missionaries to bear her testimony. Id. The following meeting Bishop asked her to say the prayer.
Id. Over the next few weeks, Denson was called out of class on multiple occasions to go to
Bishop’s office, where she met with him and other sister missionaries who had similar traumatic
upbringings. Id. at ¶ 26. In these meetings, Bishop would ask Denson and other sister
missionaries specific questions about their childhoods and their family’s activities in the Church.
Id. Each woman spoke of their traumatic childhoods and how they had each endured sexual
abuse. Id.
After several of these meetings, Bishop allegedly began calling Denson to his office
alone. Id. at ¶ 28. During their one-on-one meetings, Bishop allegedly discussed previous sexual
encounters he had with his wife and other women. Id. Over time Bishop asked Denson to go with
him to a special room in the basement where he did his “preparations.” Id. at ¶ 29. He escorted
her out of his office, down a hallway and through a locked door which led to another hallway or
tunnel that was dark and dusty. Id. This hallway or tunnel led to what Denson describes as a
storage room. Id. Bishop unlocked the door to the storage room, escorted Denson inside, turned
on the light and closed the door. Id. The room had no windows, but was furnished with a small
bed, a TV, and a VHS player sitting on a small table. Id. There was also a metal chair in the
room. Id.
Once inside the room, Bishop led Denson to the bed and they talked for a short time. Id.
¶ 30. Bishop stated that he preferred this room as a quiet place. Id. Bishop then attempted to kiss
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Denson, who pushed him away and got up to leave. Id. Bishop blocked Denson from the door
and pushed her back on the bed. Id. at ¶ 31. He grabbed her blouse and tore it open. Id. Bishop
then allegedly pulled Denson’s skirt up, tearing the seam in the back. Id. He pulled her pantyhose
and garments down. Id. He then allegedly exposed himself and briefly penetrated her with his
semi-erect penis. Id. Denson attempted to push him off, kicking and hitting him. Id. He forced
her down again. Id. Eventually, Denson was able to kick free and pull her garments up enough to
get out the door. Id. As Denson was leaving the room, Bishop shouted that no will believe you,
saying “Look at you, look at me.” Id.
In approximately 1987 or early 1988, Denson revealed the details of this sexual assault,
including Bishop’s identity as a sexual assaulter, to her local bishop. Id. ¶ 32. The local bishop
reported the incident to the local Stake President, who reported the incident to church
headquarters in Salt Lake City. Id. Shortly thereafter, Elder Carlos Asay, a member of the First
Quorum of the Seventy at the time, interviewed Denson and told her he would investigate the
incident and let her know the outcome. Id. Elder Asay never contacted her about the incident
again. Id.
Denson brings claims against Bishop and the COP for: 1) Sexual Assault and Battery; 2)
Negligent Infliction of Emotional Distress; 3) Intentional Infliction of Emotional Distress; 4)
Common Law Fraud; 5) Fraudulent Concealment and Nondisclosure; and 6) Affirmative
Injunctive Relief for policy changes. Bishop and COP each filed motions to dismiss arguing that
the statute of limitations has tolled for Denson’s claims.
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LEGAL STANDARD
Dismissal is appropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure
when the complaint, standing alone, is legally insufficient to state a claim on which relief may be
granted. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
When considering a motion to dismiss for failure to state a claim, all well-pleaded facts are
presumed to be true, but conclusory allegations need not be considered. Cory v. Allstate Ins., 583
F.3d 1240, 1244 (10th Cir. 2009). Because this case involves diversity jurisdiction, the court
applies Utah state law to this dispute.
DISCUSSION
The court will first address the COP’s Motion to Dismiss and then address Bishop’s
Motion to Dismiss.
The COP’s Motion to Dismiss
The COP filed a Motion to Dismiss arguing that all of Denson’s claims are time barred
by the statute of limitations. Accordingly, the COP seeks to dismiss Denson’s claims for: 1)
Fraudulent Concealment; 2) Intentional and Negligent Infliction of Emotional Distress; 3)
Assault; and 4) An injunction requiring the COP to change their internal policies regarding
reporting suspected sexual assault or abuse.
1. Fraudulent Concealment
Denson claims the COP engaged in common law fraud by making false representations
that Bishop was safe, honorable, and trustworthy. Denson asserts that the COP made these
representations even though it had prior knowledge that Bishop was a sexual predator. Denson
argues that after the assault she diligently investigated any potential fraud claim by reporting her
abuse to the local Bishop, Stake President, and General Authority Carlos Asay. Despite reporting
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her abuse and investigating possible claims, she had no knowledge that the COP knew that
Bishop was a sexual predator prior to being called as the MTC President. She asserts that the
COP made false representations regarding Bishop’s character when it had knowledge that he was
a risk to young female missionaries. Further, Denson asserts that despite her reporting and
attempts to investigate the facts surrounding her sexual assault, she had no knowledge that the
COP knew that Bishop was a sexual predator until she confronted Bishop in December of 2017.
During the recorded confrontation, Bishop allegedly confessed that he reported his past sexual
improprieties to high ranking church officials prior to being called as the MTC President.
Utah Code § 78B-2-305(3) states that an action may be brought within three years “for
relief on the ground of fraud or mistake; except that the cause of action does not accrue until the
discovery by the aggrieved party of the facts constituting the fraud or mistake.” In relation to
Denson’s fraudulent concealment claim, the parties have identified three cases that are relevant.
The cases involve a Utah Supreme Court decision, a 10th Circuit Court of Appeals decision, and
a persuasive factually similar District of Idaho decision.
In Colosimo v. Roman Catholic Bishop of Salt Lake City, former students brought claims
against the Catholic Diocese because a teacher/priest at Judge Memorial High School sexually
abused them. Rapp began abusing Ralph Colosimo in 1970. 156 P.3d 806 (2007). The abuse
continued until Ralph turned 18. In 1975, Rapp admitted to Ralph that he was a pedophile and
that he was also abusing Ralph’s younger brother. In 2003, the Colosimos filed suit against Rapp
and the Catholic Diocese. The Plaintiffs alleged that the Catholic Diocese knew that Rapp had
sexually abused children prior to Ralph, yet deliberately concealed their knowledge of his past
abuse. The court recognized that for a claim for fraud “[a] plaintiff is deemed to have discovered
his action when he has actual knowledge of the fraud or by reasonable diligence and inquiry
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should know the relevant facts of the fraud perpetrated against him” Id. at 811. “[A] party is
required to make inquiry if his findings would prompt further investigation.” Id. “Utah courts toll
the running of the limitations period if a plaintiff does not become aware of the cause of action
because of the defendant’s concealment or misleading conduct.” Id. at 816. (internal quotations
omitted).
A “plaintiff will be charged with constructive notice of the facts forming the basis of a
cause of action only at that point at which a plaintiff, reasonably on notice to inquire into a
defendant’s wrongdoing, would have, with due diligence, discovered the facts forming the basis
for the cause of action despite the defendant’s efforts to conceal it.” Id.
In Colosimo, the Utah Supreme Court looked to other states for examples on when it is
appropriate to toll the statute of limitations based on fraudulent concealment. In Helleloid v.
Independent School District Number 361, a teacher sexually abused a mentally disabled student,
yet the school district hid its knowledge of the abuse from the student’s parents. 149 F.Supp.2d
863. Even though the Helleloid court recognized that statute of limitation questions in a
fraudulent concealment context are normally questions of fact, unsuited for summary judgment,
the court refused to toll the limitations period because the parents had not put forth any effort to
inquire into the district’s involvement. It reasoned that the doctrine of fraudulent concealment is
not intended to protect those who are not vigilant in advancing their legal claims. Id. at 871.
The court in Colosimo adopted the Helleloid courts requirement that a plaintiff must
exercise “due diligence” in investigating her claims. Colosimo, 156 P.3d at 818. However, the
court held “a plaintiff’s lack of inquiry may be excused where the defendant has affirmatively
concealed from the plaintiff the facts necessary to put the plaintiff on inquiry notice. A plaintiff
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cannot be expected to inquire about the existence of a claim that is entirely concealed from him
when there is nothing to put him on inquiry notice.” Id. at 819.
Ultimately the court in Colosimo held that the plaintiffs were barred by the statute of
limitations because they made no inquiry as to facts of potential fraud after the abuse. The court
followed the reasoning in Helleloid that the doctrine of fraudulent concealment is not intended to
protect those who are not vigilant in advancing their legal claims. However, by discussing the
circumstances when a sexual assault victim may sue an institutional defendant, the court in
Colosimo held that the statute of limitations may be tolled if the plaintiff engages in reasonable
inquiry to investigate her claims and due to the concealment of the institutional defendant was
unable to uncover the fraud until after the statute of limitations has run.
Denson’s case in distinguishable from Colosimo because she allegedly exercised due
diligence into the factual circumstances surrounding her sexual abuse. Specifically, in
approximately 1987 or early 1988, she reported the sexual assault to her local Bishop, Stake
President, and General Authority Carlos Asay. Carlos Asay told her that he would investigate the
claim further and report back to her. Carlos Asay allegedly never contacted her again about the
investigation, if an investigation in fact took place. Due to the COP’s alleged concealment when
she reported the sexual assault claim to multiple leaders, Denson was unable to discover whether
the COP knew that Bishop was a sexual predator prior to calling him as the MTC President.
Accordingly, because Denson put forth effort in investigating her claims but was unable to
discover that the COP had prior knowledge that Bishop was a sexual predator because of the
COP’s failure to report back to her, she has satisfied the requirements in Colosimo to toll the
statute of limitations.
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The COP argues that the Tenth Circuit Court of Appeal’s holding in Dummar v. Lummis
is more instructive on when the statute of limitations begins on a fraud claim. 543 F.3d 614
(2008). Denson’s fraudulent concealment claim is based on the COP representing that Bishop
was a safe, honorable, and trustworthy person when the COP had prior knowledge that he was a
sexual predator. The COP argues that the statute of limitations has run because Denson knew
when she was raped that the COP’s representations that Bishop was safe, honorable, and
trustworthy were not true.
In Dummar, the plaintiff was driving on a rural road and encountered a bloodied and
disheveled man lying in the road. The plaintiff woke the semiconscious man and offered to take
him to the hospital. The man instead asked to be taken to his hotel room. The plaintiff had no
further contact with the man until nearly nine years later when the man died and the plaintiff
learned that the man listed him as a 1/16 beneficiary in his will. The will was handwritten and
therefore subject to attack. The intestate beneficiaries probated the will and, at trial, the other
beneficiaries produced evidence that the man never left his hotel room for a period of several
years. On June 8, 1978, the jury rejected the handwritten will leaving the plaintiff with nothing.
Nearly 30 years later the plaintiff learned additional details about misconduct related to
the trial. The misconduct included the fact that the man left his hotel room on multiple occasions,
but the beneficiaries in that case affirmatively destroyed records of him leaving. The plaintiff
also learned that there were threats and bribes against witnesses to produce false testimony.
The court in Dummar held that the statute of limitations barred the Plaintiff’s fraud
claims because even though the Plaintiff learned additional facts about the concealment of the
fraud, he knew at the time of the trial that the statements made by the other beneficiaries that the
man never left his hotel room were false. Id. at 620. The court reasoned that the plaintiff knew
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that the beneficiaries’ statements that the man never left his hotel were false at the time of the
trial because he had in fact met the man when he was away from the hotel. Id. The fact that the
plaintiff did not have additional proof of the fraud committed by the other beneficiaries is not
enough to toll the statute of limitations because the plaintiff had enough knowledge for the
statute of limitations to begin.
In Dummar, the court noted “[n]either party has suggested whether Utah or Nevada law
should apply to the fraud claim, but we need not decide between them. The laws of the two
States are similar in all relevant respects, so the choice of law would not influence the outcome.”
Id. at 619. The court then cited Nevada law for the elements of fraud, and stated “Utah’s
elements, though phrased differently, are in substance the same.” Id. Later in the opinion, the
court cited to the Alaska Supreme Court as persuasive authority for when the statute of
limitations begins. Id. at 620. The court held that the plaintiff “had all the knowledge necessary
to start the limitations period running against him.” Id.
The court in Dummar did not cite or discuss the Utah Supreme Court’s Colosimo
decision, which was decided a year earlier. Instead it noted that the elements of fraud under
Nevada and Utah law are in substance the same and cited Alaska state law as persuasive.
Therefore, Dummar is not as direct of an application of Utah law as the Utah Supreme Court’s
decision in Colosimo.
The COP argues that Denson’s case is similar to Dummar because she had knowledge at
the time she was sexually assaulted that the COP’s representations that Bishop was safe,
honorable, and trustworthy were not true. The COP argues that such knowledge is similar to
Dummar where the plaintiff had knowledge that the deceased man had actually left his hotel
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room because the plaintiff had met him on the side of the road. However, this holding would be
inharmonious with the Utah Supreme Court’s holding in Colosimo.
Although the court in Colosimo ultimately dismissed the plaintiff’s claims as time barred,
it discussed circumstances when the statute of limitations would be tolled. The court held “once a
plaintiff has made a prima facie showing of fraudulent concealment, the plaintiff will be charged
with constructive notice of the facts forming the basis of a cause of action only at that point
which a plaintiff, reasonably on notice to inquire into a defendant’s wrongdoing, would have,
with due diligence, discovered the facts forming the basis for the cause of action despite the
defendant’s efforts to conceal it.” Id. at 816. The court dismissed plaintiff’s claims for fraudulent
concealment in Colosimo finding “before a plaintiff may rely on the fraudulent concealment
doctrine, [s]he must have actually made an attempt to investigate [her] claims and that such an
attempt must have been rendered futile as a result of the defendant’s fraudulent or misleading
conduct.” Id. The court in Colosimo seemed to suggest that had the plaintiffs investigated their
claims and were still not able to uncover the fraud, then the statute of limitations for the
fraudulent concealment claim would have been tolled. The court noted “it is the existence of the
inquiry and the defendant’s response that provides the trier of fact with the evidence necessary to
evaluate whether there was fraudulent concealment and whether the plaintiff reasonably
investigated [her] claims.” Id. at 818.
If the COP’s interpretation of Dummar is correct that the plaintiff knew of the fraud once
she was sexually assaulted, then the Utah Supreme Court’s guidance on when the statute of
limitations may be tolled on sexual assault claims against an institutional defendant would not
apply. A victim of sexual assault would never be able to toll the statute of limitations against an
institutional defendant because the victim would always know at the time they were sexually
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assaulted, absent repressed memories, that any representation made by the institutional defendant
about the safety of the individual at issue was false. Accordingly, the court finds that Denson
alleged enough facts in her complaint that she reasonably investigated her claims by reporting
her abuse to multiple COP leaders, and that the COP concealed the fact that it allegedly knew
that Bishop was a sexual predator.
Some jurisdictions have an even lower burden for tolling the statute of limitations against
an institutional defendant for sexual abuse cases. In Doe v. Presiding Bishop of Church of Jesus
Christ of Latter-Day Saints, the United States District Court for the District of Idaho analyzed a
factually similar case involving fraud. 837 F.Supp.2d 1145 (D. Idaho 2011). In Doe a
scoutmaster allegedly sexually abused and molested the plaintiff as a child during camping trips.
On two camping trips, the scoutmaster allegedly sexually abused and molested Doe by fondling
him and engaging in oral sex. Doe filed a complaint in 2008 against the LDS Church and the
Boy Scouts of America. Doe contended that he did not discover the Defendants’ fraud until
sometime in 2007 or 2008, when his attorneys learned that the Boy Scout national office became
aware as early as the mid-1960s that serious problems existed with Scoutmasters molesting
young boys. Doe alleged that the Boy Scouts promoted their program as being safe and described
Scoutmasters as wonderful men. The court held that the “statute is tolled when the fact of
damage has, for the purpose of escaping responsibility therefor, been fraudulently and knowingly
concealed from the injured party by an alleged wrongdoer standing at the time of the wrongful
act, neglect or breach in a professional or commercial relationship with the injured party.” Id. at
1151. The court found that the Boy Scouts had a duty to disclose the known dangers of
pedophilic scoutmasters because the fiduciary relationship and the Boy Scouts representations
about the safety of the program required the disclosure. Id. Notably, it appears that the plaintiff
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in Doe did not diligently investigate his claims until nearly 40 years later. Utah law requires the
additional requirement that a plaintiff take steps to investigate potential fraud.
The court therefore concludes that pursuant to Utah law, under the allegations of the
complaint, Denson adequately investigated her claims. Denson reported her claims to her local
Bishop, Stake President, and General Authority Carlos Asay. Carlos Asay allegedly told Denson
that he would inform her of the outcome of the investigation, but never did. Despite her efforts,
she was not able to uncover that the COP allegedly had knowledge that Bishop was a sexual
predator prior to calling him as the MTC President. Accordingly, pursuant to the Plaintiff’s
allegations, the statute of limitations did not begin until she confronted Bishop in December of
2017 and learned of the concealment.
2. Intentional and Negligent Infliction of Emotional Distress
Denson alleges that the COP intentionally and negligently inflicted emotional distress on
her by not investigating her claims and believing her account of Bishop sexually assaulting her.
The COP argues that Denson’s claims should be dismissed as barred by the statute of limitations.
At the hearing, counsel for the COP conceded that he believed if the statute of limitations was
tolled for the fraudulent concealment claim, then the statute of limitations would also likely be
tolled for the emotional distress claims. However, the COP argued that the emotional distress
claims also fail on the merits.
To succeed on a claim of intentional infliction of emotional distress, a plaintiff must
demonstrate 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 they offend against the generally accepted standards of decency and
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morality.” Cabaness v. Thomas, 232 P.3d 486, 499 (Utah 2010). “To be considered outrageous,
the conduct must evoke outrage or revulsion; it must be more than unreasonable, unkind, or
unfair.” Franco v. The Church of Jesus Christ of Latter-Day Saints, 21 P.3d 198 (Utah 2001).
The Utah Supreme Court in Franco analyzed a case where a former church member
brought a claim for intentional infliction of emotional distress resulting from members of her
church ostracizing her after she reported incidents of sexual abuse to the police because of how
church leaders handled her claims. Id. The court dismissed the intentional infliction of emotional
distress claims holding that the Church did not act with the “purpose of inflicting emotional
distress.” Id. at 207. The court held that “[t]o be considered outrageous, the conduct must… be
more than unreasonable, unkind, or unfair. Furthermore, an act is not necessarily outrageous
merely because it is tortious, injurious, or malicious, or because it would give rise to punitive
damages, or because it is illegal.” Id. (internal quotations omitted).
Denson asserts that the COP caused her emotional distress by taking no action to
investigate her claims against Bishop for sexual assault. Here, Denson asserts that the COP’s
inaction caused her emotional distress. These assertions do not rise to the high standard of
purposefully inflicting emotional distress. Accordingly, Denson’s claim for intentional infliction
of emotional distress is dismissed as a matter of law.
Similarly, Denson’s claim for negligent infliction of emotional distress fails. Denson
argues that her distress stems from the COP not believing her and not investigating her claim of
sexual assault. The Utah Supreme Court stated that “the emotional distress suffered must be
severe; it must be such that ‘a reasonable person normally constituted would be unable to
adequately cope with the mental stress engendered by the circumstances of the case.” Harnicher
v. University of Utah Medical Center, 962 P.2d 67, 69 (Utah 1998). The Utah Supreme Court has
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also listed as a factor “whether the tortious conduct consists of an affirmative act or merely an
omission.” B.R. ex rel Jeffs v. West, 275 P.3d 228 (Utah 2012). Courts have cautioned against
expanding causes of action for negligent infliction of emotional distress because of the
uncertainty in ascertain damages for mental suffering. Mower v. Baird, 2018 WL 3322749 (Utah
2018).
Here, Denson asserts that her claim for negligent infliction of emotional distress is based
on the COP’s inaction. The court concludes that the COP’s alleged inaction in investigating
Denson’s sexual assault is not enough to establish a claim for negligent infliction of emotional
distress. However, such inaction is relevant under Denson’s fraudulent concealment claim.
Accordingly, Denson’s claim for negligent infliction of emotional distress is dismissed.
3. Assault
The COP asserts that Denson’s claim for assault must be dismissed because she does not
claim that the COP sexually assaulted her. Denson’s claim is based on Bishop sexually
assaulting her, not the COP. Accordingly, Denson’s claim against the COP is dismissed.
4. Affirmative Injunctive Relief
Denson seeks an affirmative injunction requiring the COP to change its policies relating
to reporting suspected sexual abuse. The COP argued that this claim should be dismissed
because an injunction is not a claim, but a remedy for other claims. Denson did not oppose the
COP’s arguments for dismissing the affirmative injunction claim. Accordingly, Denson’s claim
for an affirmative injunction is dismissed.
Joseph Bishop’s Motion to Dismiss
Denson asserts claims against Bishop for: 1) Sexual Assault; 2) Intentional and Negligent
Infliction of Emotional Distress; and 3) Fraud. Denson’s claims against Bishop arise from his
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alleged sexual assaul of her in early 1984. Bishop seeks to dismiss all of the claims against him
because the statute of limitations has run. For the following reasons, Bishop’s motion to dismiss
is granted based on statute of limitations grounds.
1. Sexual Assault
According to Denson’s complaint, Bishop assaulted her in the mid-1980s. A person
commits the civil tort of battery if: “(a) he acts intending to cause a harmful or offensive contact
with the person of the other or a third person, or an imminent apprehension of such contact, and
(b) a harmful contact with the person of the other directly or indirectly results.” Wagner v. State,
2005 UT 54, ¶ 16. Under Utah’s catch-all statute of limitation, Denson therefore had until early
1988 to bring the action. See Utah Code § 78B-2-307(3). Accordingly, Denson’s claim against
Bishop for sexual assault is barred by the statute of limitations.
2. Intentional and Negligent Infliction of Emotional Distress
Denson’s claims for emotional distress appear to be based against the COP and not
Bishop. But if the claims were against Bishop, then, like battery, the causes of action fall under
Utah’s catch-all statute of limitations and Denson’s causes of action therefore expired in
approximately 1991. Accordingly, Denson’s claim for emotional distress against Bishop is
dismissed.
3. Fraud
Denson’s claim for fraud also appears to be against the COP, not Bishop. If Denson
asserts fraud against Bishop, then the claim fails. Denson does not assert that Bishop made any
false representations regarding his character. If Bishop did make false representations about his
character, then Denson became aware that those representations were false when Bishop sexually
17
Case 2:18-cv-00284-DAK-DBP Document 29 Filed 08/13/18 Page 18 of 18
assaulted her. Therefore, her fraud claim would become time barred sometime in 1990. Utah
Code §78B-2-305(3). Accordingly, Denson’s claim for fraud against Bishop is dismissed.
CONCLUSION
For the reasons stated above, the COP’s Motion to Dismiss is GRANTED in part and
DENIED in part (Dkt. No. 12) and Bishop’s Motion to Dismiss is GRANTED in its entirety.
(Dkt. No. 11).
Dated this 13th day of August, 2018.
BY THE COURT:
____________________________________
DALE A. KIMBALL,
United States District Judge
18
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