Burton v. Chen , 2023 UT 14 ( 2023 )

2023 UT 14IN THE
SUPREME COURT OF THE STATE OF UTAH
JULIE BURTON,
Appellant,
v.
MICHAEL CHEN, D.O., and ALTA PAIN PHYSICIANS, LLC,
Appellees.
No. 20210873
Heard January 9, 2023
Filed July 29, 2023
On Appeal of Interlocutory Order
Third District, Salt Lake
The Honorable Amber M. Mettler
No. 190904887
Attorneys: 1
Joseph M. Chambers, Josh Chambers, J. Brett Chambers, Logan,
for appellant
Troy L. Booher, Beth E. Kennedy, Taylor P. Webb, David C.
Epperson, Scott H. Epperson, Salt Lake City, for appellees
ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court,
in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,
JUSTICE HAGEN, and JUSTICE POHLMAN joined.
ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Julie Burton was a patient at Alta Pain Physicians (Alta Pain).
Burton filed an action against the clinic and Oscar Johnson, an Alta
Pain physician assistant. She also named Dr. Michael Chen—
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Amicus Curiae: Charles T. Conrad, Tanner J. Bean, Jessica A.
1
Andrew, Salt Lake City, for Utah Association for Justice.
BURTON v. CHEN
Opinion of the Court
Johnson’s supervising physician—in the suit. Burton alleged that
Johnson subjected her to sexual harassment and abuse when she saw
him for pain treatment at Alta Pain.
¶2 Burton settled her claims against Johnson. Chen and Alta Pain
moved for summary judgment on Burton’s claims of sexual assault,
sexual battery, and intentional infliction of emotional distress—all of
which seek to hold Chen and Alta Pain responsible for Burton’s
abuse under principles of respondeat superior. The district court
granted the motion.
¶3 Burton seeks interlocutory review of that decision. Burton
argues that the district court erroneously applied the law to conclude
that Chen and Alta Pain are not vicariously liable for Johnson’s
actions. Burton also contends that if the district court did not
misapply the law, the law needs to change, and she urges us to
abandon our jurisprudence and adopt a foreseeability test for
employer liability.
¶4 The district court did not err when it entered summary
judgment on the respondeat superior-based claims. We take Burton’s
point that a foreseeability test might make it easier for plaintiffs to
recover against those who employ abusive employees. But Burton
has not met her burden of convincing us that we should depart from
stare decisis principles and significantly alter the legal landscape in
this area of the law. We affirm.
BACKGROUND
¶5 Alta Pain hired Oscar Johnson as a physician assistant. Dr.
Michael Chen served as Johnson’s supervising physician. 2 At that
time, Utah law required physician assistants to operate under a
“delegation of services agreement.” See UTAH CODE § 58-70a-
501(1)(c) (2017). The record before us contains no such agreement.
¶6 Alta Pain terminated its relationship with Johnson after one of
his patients complained that Johnson had made inappropriate sexual
contact with her during an appointment. Chen and Alta Pain
investigated Johnson’s conduct and heard from several other
_____________________________________________________________
2 This case is before us on interlocutory review of a grant of
summary judgment. “When reviewing a . . . motion for summary
judgment, we recite the facts in the light most favorable to the non-
moving party.” Johnson v. Hermes Assocs., Ltd., 2005 UT 82, ¶ 2, 128
P.3d 1151.
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patients about similar abuse they alleged Johnson had inflicted on
them.
¶7 Julie Burton was one of the patients who reported abuse
during Chen and Alta Pain’s investigation. Burton was a chronic-
pain patient who attended monthly appointments for several years.
Burton described in her deposition how Johnson touched her
sexually without permission and threatened to withhold medication
if she did not perform sexual acts with him. Burton also testified that
Johnson threatened to kill people she loved.
¶8 Burton sued Johnson, Alta Pain, and Chen. Burton asserted
claims of medical malpractice, sexual assault, sexual battery,
intentional infliction of emotional distress, and negligent infliction of
emotional distress against Johnson. Burton and Johnson reached a
settlement agreement. Burton dismissed her claims against Johnson.
¶9 Burton alleged two types of claims against Chen and Alta
Pain. The first category of claims asserted direct liability against the
doctor and clinic for negligence and the negligent employment of
Johnson. Those claims remain live in the district court and are not
the subject of this interlocutory appeal.
¶10 The second category of claims asserted that Chen and Alta
Pain were responsible for Johnson’s tortious conduct under
respondeat superior principles. These causes of action included sexual
assault, sexual battery, and intentional infliction of emotional
distress. Chen and Alta Pain moved for summary judgment on these
claims. The district court granted the motion. Burton sought
interlocutory review of the grant of summary judgment.
ISSUES AND STANDARD OF REVIEW
¶11 Burton argues that we should reverse the district court for
three reasons. Burton first argues that the district court erred when it
concluded that Chen and Alta Pain could not be held vicariously
liable for Johnson’s conduct. We review a grant of summary
judgment “for correctness, granting no deference to the trial court’s
conclusions, and we view the facts and all reasonable inferences in
the light most favorable to the nonmoving party. Summary
judgment is appropriate if reasonable jurors, properly instructed,
would be able to come to only one conclusion.” UMIA Ins. v. Saltz,
2022 UT 21, ¶ 65, 515 P.3d 406 (cleaned up).
¶12 Burton next asserts that the version of the Utah Physician
Assistant Act (the Act) in effect when Alta Pain and Chen hired
Johnson imposed liability on a supervising physician for all actions
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BURTON v. CHEN
Opinion of the Court
within the scope of the delegation of services agreement. See UTAH
CODE § 58-70a-102(2) (2017). Because Chen and Alta Pain did not
produce a delegation of services agreement it had with Johnson,
Burton argues that they are liable for all of Johnson’s actions. Burton
maintains that the district court erred when it misinterpreted the Act
and reached a contrary result. We review the district court’s
interpretation of a statute for correctness. State v. Mooers, 2017 UT 36,
¶ 5, 424 P.3d 1.
¶13 Burton last argues that we should abandon our precedent
and adopt a foreseeability approach to determine when a principal
should be liable for the conduct of an agent. Burton asked the district
court to do the same, but the district court concluded that it could
not overturn binding precedent. The question of whether Burton has
met her burden to convince us to overturn precedent is one we
decide in the first instance.
ANALYSIS
I. THE DISTRICT COURT DID NOT ERR WHEN IT GRANTED
SUMMARY JUDGMENT ON BURTON’S RESPONDEAT
SUPERIOR CLAIMS
¶14 To hold Chen and Alta Pain liable for Johnson’s actions
under respondeat superior, Burton would need to demonstrate that
Johnson’s conduct was the general kind he was hired to perform and
that Johnson was motivated, at least in part, to serve Chen and Alta
Pain’s interests. See M.J. v. Wisan, 2016 UT 13, ¶ 54, 371 P.3d 21. The
district court concluded that Johnson’s sexual misconduct was
“indisputably not the general kind of conduct Johnson was hired to
perform” and not “closely connected” with his job duties. The court
also determined that there was “no indication” that Johnson was in
any way trying to further his employer’s interests through his
actions. It therefore concluded that Burton’s respondeat superior-based
claims could not survive summary judgment. Burton argues that this
was error.
¶15 Respondeat superior is a common law agency doctrine, under
which an employer can be held vicariously liable for the torts of her
employees. Id. ¶ 50. We recognize that an employer should be liable
for an employee’s actions that occur “within the scope of
employment when performing work assigned by the employer or
engaging in a course of conduct subject to the employer’s control.”
Id., ¶ 52 (quoting Restatement (Third) of Agency § 7.07(2) (Am. L.
Inst. 2006)). We also recognize that an employer should not be liable
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for an employee’s actions that occur within “‘an independent course
of conduct’ not connected to the principal.” Id. (quoting Restatement
(Third) of Agency § 7.07(2) (Am. L. Inst. 2006)). The complication
arises when we try to precisely define the line that separates a course
of conduct subject to the employer’s control from the employee’s
independent conduct.
¶16 M.J. v. Wisan provides our most recent attempt to define that
boundary. There, we described the inquiry as: (1) “whether the
agent’s conduct is of the general kind the agent is employed to
perform”; and (2) “whether the agent’s acts were motivated, at least
in part, by the purpose of serving the principal’s interest.” Id. ¶ 54
(cleaned up). 3 Because Burton’s claim fails the first part of the test,
the grant of summary judgment was proper. 4
¶17 The district court held that Johnson’s assaults were
“indisputably not the general kind of conduct Johnson was hired to
perform,” nor were they “closely connected” with his job duties.
Burton contends that the district court erred because Johnson’s acts
were of the “general kind” he was hired to perform. She uses our
holding in Wisan, paired with cases from other states, to argue that
“a reasonable jury would find that Johnson’s conduct was
[‘]generally directed toward the accomplishment[’] of his employer’s
objective to provide pain relief.” (Quoting Birkner v. Salt Lake County,
771 P.2d 1053, 1057 (Utah 1989).)
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3 The Wisan test modified the test articulated in Birkner v. Salt Lake
County, 771 P.2d 1053 (Utah 1989). Wisan, 2016 UT 13, ¶ 59. In
Birkner, we held that an employee’s conduct was only within the
scope of employment if it was “of the general kind” the employee
was hired to perform, the conduct occurred within the hourly and
spatial boundaries of employment, and the employee was acting to
serve the employer’s interests. Birkner, 771 P.2d at 1056–57. Wisan
eliminated Birkner’s requirement that a plaintiff establish that the
employee’s conduct occurred “within the hours of the employee's
work and the ordinary spatial boundaries of the employment.”
Wisan, 2016 UT 13, ¶ 59 (quoting Birkner, 771 P.2d at 1057).
4 Because the district court correctly determined that no
reasonable juror could conclude that Johnson’s conduct was of the
general kind he was employed to perform, we do not analyze the
second part of the Wisan test.
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BURTON v. CHEN
Opinion of the Court
¶18 To start, Wisan does not provide an apt comparison. In
Wisan, the agent, Warren Jeffs, was a trustee of a trust created to
benefit the Fundamentalist Church of Jesus Christ of Latter-Day
Saints. Wisan, 2016 UT 13, ¶¶ 3–6. We noted that “[f]rom 1998 to
2006 the Trust was operated for the express purpose of furthering
the doctrines of the FLDS Church, including the practice of plural
marriage involving underage girls.” Id. ¶ 6.
¶19 This led us to conclude that as “trustee of the Trust . . . , Jeffs
was called upon to administer the Trust in accordance with the
doctrines and principles of the FLDS Church . . . .[,] includ[ing] the
arrangement of plural, underage marriages.” Id. ¶ 65. We held that
there was “a basis in the record for the conclusion that Jeffs’s . . . .
conduct was ‘of the general kind’ he was expected ‘to perform’ as
trustee.” Id.
¶20 We further explained,
[g]iven Jeffs’s unique role as leader of the FLDS
Church, and in light of the unusual, troubling function
of plural marriage involving young brides in the FLDS
culture, . . . a reasonable factfinder could conclude that
Jeffs was acting within the scope of his role as a trustee
in directing [an adult FLDS member] to engage in
sexual activity with [a minor].
Id. ¶ 62.
¶21 The case before us lacks the unique factual setting that
allowed us to conclude that a jury could find that Jeffs’s sexual
misconduct was the general kind of act he was employed to perform.
To the contrary, Johnson conceded that he was “hired . . . with the
expectation that [he] would not engage in any improprieties with
[patients]” and that the physician assistant code of ethics prohibits
sexual relationships with patients.
¶22 Moreover, Johnson had entered into a stipulation with the
Division of Occupational and Professional Licensing concerning a
possible reinstatement of his suspended license. In that stipulation,
Johnson admitted that he engaged in “inappropriate sexual
behavior” with “several” patients and that this behavior constituted
“unprofessional conduct.”
¶23 Burton argues that she identified evidence that would have
permitted a reasonable juror to conclude that Johnson’s assaults
were generally directed toward the pain relief he was hired to
perform. Burton notes that Johnson’s misconduct occurred during
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work hours and that he reportedly told her and at least one other
patient he could make their pain “go away.” She argues that, with
this evidence, a reasonable jury could find that Johnson was
performing the work he was hired to do when he assaulted her. She
further contends that, if the facts are viewed in the light most
favorable to her as the nonmoving party to a summary judgment
motion, a jury could conclude that Johnson was performing the work
he was hired to perform.
¶24 We reached a contrary conclusion and affirmed the grant of
summary judgment in a similar case. In J.H. ex rel. D.H. v. West Valley
City, a police officer molested a child participating in a public
outreach program. 840 P.2d 115, 118–19 (Utah 1992). There, the
officer abused the child, telling him that he was teaching relaxation
techniques used by law enforcement. Id.¶25 We said:
[The officer] was not hired or authorized to instruct
[program participants] in sexual matters, nor was he
authorized to touch the [program participants] in any
manner. . . . [R]easonable minds could not differ in
determining that the touching or molestation was not
within the general nature of work [the officer] was
hired to perform.
Id. at 123.
¶26 We reached this conclusion even though the abuse occurred
in a police cruiser, after a police-sanctioned activity, and the officer
told his victim the abuse was a sanctioned police relaxation
technique. See id. at 119. We concluded that “obviously” the abuse
the officer committed was not the general kind of act he was hired to
perform and that a reasonable juror could not decide otherwise. Id.
at 123.
¶27 Burton does not address J.H. She instead uses three out-of-
state cases, Fearing v. Bucher, Lourim v. Swensen, and Plummer v.
Center Psychiatrists, to argue that courts should find that tortious acts
arising out of acts authorized by the employer should be considered
of the “general kind” of acts an employee is hired to perform.
¶28 In Fearing, the Oregon Supreme Court reversed a court of
appeals decision upholding a grant of a motion to dismiss for failure
to state a claim against the employer in a case of sexual molestation
by a priest. Fearing v. Bucher, 977 P.2d 1163, 1164–65 (Or. 1999). The
Oregon court reasoned that, viewing the facts of the complaint in
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BURTON v. CHEN
Opinion of the Court
favor of the nonmoving party on a motion to dismiss, the
molestation could be seen as arising out of pastoral conduct. Id. at
1166–68.
¶29 In Lourim, the Oregon Supreme Court reinstated a respondeat
superior claim against Boy Scouts of America that had been
dismissed at the pleading stage. Lourim v. Swensen, 977 P.2d 1157,
(Or. 1999). The Oregon Supreme Court employed the same
reasoning it had in Fearing. Id. at 1160–62.
¶30 In Plummer, the Virginia Supreme Court reversed a grant of
demurrer on respondeat superior claims against a psychologist’s
employer. Plummer v. Ctr. Psychiatrists, Ltd., 476 S.E.2d 172, 173 (Va.
1996). The Virginia court noted the psychologist-patient relationship
and reasoned that “there simply [were] not sufficient facts which
would permit [the court] to hold, as a matter of law, that the
defendant ha[d] met its burden of showing that its employee was not
acting within the scope of his employment.” Id. at 175.
¶31 Needless to say, none of these out-of-jurisdiction cases is
binding on our analysis. And because they were all decided at the
initial pleading stage, none of them is particularly helpful. J.H., on
the other hand, is both binding and helpful. We see nothing that
would distinguish the grant of summary judgment in this case from
the grant of summary judgment we upheld in J.H.
¶32 We agree with the district court that, on this record, no
reasonable juror could find that Johnson’s acts were the general sort
of acts he was hired to perform. The district court did not err by
granting summary judgment for Chen and Alta Pain on Burton’s
respondeat superior claims.
II. THE UTAH PHYSICIAN ASSISTANT ACT DOES NOT MAKE
CHEN AND ALTA PAIN LIABLE FOR JOHNSON’S
INTENTIONAL TORTS
¶33 Burton next contends that the district court erred when it
rejected an alternative theory of liability. Burton argued to the
district court that the Act makes Chen and Alta Pain liable for
Johnson’s actions.
¶34 Burton’s argument relies on a requirement found in the
version of the Act in place at the time of the assaults. That iteration
of the Act required that every physician assistant operate under a
“delegation of services agreement.” See UTAH CODE § 58-70a-
501(1)(c) (2017). The Act defined a “delegation of services
agreement” as “written criteria jointly developed by a physician
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assistant’s supervising physician and any substitute supervising
physicians and the physician assistant, that permits a physician
assistant, working under the direction or review of the supervising
physician, to assist in the management of common illnesses and
injuries.” Id. § 58-70a-102(2)(a).
¶35 Burton notes that the Act defined a “supervising physician”
as a person who “acts as the primary supervisor of a physician
assistant and takes responsibility for the professional practice and
conduct of a physician assistant in accordance with [the Act].” Id.
§ 58-70a-102(6)(b).
¶36 Burton combines these two provisions to envision a regime
where the supervising physician is liable for any of the actions that
are within the scope of service described in the delegation of services
agreement. More specifically, Burton contends that the Act’s phrase
“takes responsibility for the professional practice” means that
supervising physicians are responsible for any actions taken by their
physician assistants under the delegation of services agreement. See
id.
¶37 Burton takes this principle and argues that since Chen and
Alta Pain did not produce a delegation of services agreement during
litigation, a jury would be free to assume that Chen and Alta Pain
put no limitations on the scope of the services they delegated to
Johnson. Burton argues that this means that Chen and Alta Pain
have, in the Act’s language, “take[n] responsibility” for anything
Johnson did and are therefore legally liable for any action Johnson
took. See id. In other words, Burton argues that without a delegation
of services agreement, the scope of Johnson’s employment was
boundless, and any action he took was in the scope of his
employment.
¶38 Leaving aside the question of whether the failure to produce
a delegation of services agreement would permit the jury to draw
the inference Burton claims, we do not interpret the Act the way
Burton does. To be clear, we understand the statutory interpretation
argument Burton makes. Burton claims that the Legislature intended
that the Act make physicians liable—without regard for common
law respondeat superior principles—for actions taken by their
physician assistants within the scope of their delegation of services
agreement. And we understand how Burton could read the statute to
reach that result. We can even acknowledge that the Utah
Legislature might very well have intended the Act to work the way
Burton describes.
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BURTON v. CHEN
Opinion of the Court
¶39 Although we can see Burton’s reading, we reject it because
the interpretation Burton offers would have worked a major revision
to common law respondeat superior principles. That is, Burton reads
the Act to have imposed liability on the principal for the actions of
the agent even if the plaintiff could not establish that the actions met
the common law test to assess whether they occurred within the
scope of employment. While it would be well within the
Legislature’s power to enact such a change, there are good reasons to
conclude that it did not.
¶40 The major problem Burton faces is that we do not presume
that a statute was intended to abrogate common law principles
unless the Legislature makes that intent clear. See, e.g., Jedrziewski v.
Smith, 2005 UT 85, ¶ 14, 128 P.3d 1146 (“[T]he courts look at
legislative intent to determine whether the act preempts existing
common law.”); see also ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 318 (2012)
(“[S]tatutes will not be interpreted as changing the common law
unless they effect the change with clarity.”). 5
¶41 Moreover, while we have noted the dubious value of
legislative history, and especially the absence of legislative history,
we think it somewhat suspicious that the Legislature would work
such a major change to agency law without mentioning it anywhere.
This is especially true where the Legislature removed the “take
responsibility” language from the Act a few years after the statute’s
enactment. And when it did that, it did not assert that it was
abandoning statutory liability and returning to common law
respondeat superior principles.
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5 A related interpretive principle is that the Legislature does not
normally “hide elephants in mouseholes.” Rutherford v. Talisker
Canyons Fin., Co., 2019 UT 27, ¶ 53, 445 P.3d 474. That is to say that
we don’t normally expect major changes to the established legal
landscape to be accomplished by the insertion of an ambiguous
phrase like “take responsibility.” That does not mean that it cannot
happen, but we usually presume that if the Legislature intended a
major change to common law, it will either tell us or give us other
textual clues about its intent. Here, we have neither textual clues nor
anything else to suggest that the Legislature intended the Act’s
delegation of services provisions to replace respondeat superior
principles.
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¶42 When we are asked to decide how the Legislature intended
the Act to work, it is easy to shy away from an interpretation that
would have meant a sea change to the state of agent-principal law
without acknowledging the change anywhere inside the text, nor
giving any other indication that it intended such a result.
¶43 Simply stated, the Act does not make Chen and Alta Pain
liable for Johnson’s sexual assaults. The district court did not err
when it rejected Burton’s argument.
III. BURTON HAS NOT MET THE ELDRIDGE v. JOHNDROW
BURDEN TO OVERTURN PRECEDENT
¶44 Burton also argues that we should abandon Birkner and
Wisan (and J.H., although she doesn’t explicitly ask for that) and
adopt a foreseeability test. Burton suggests that under this approach
respondeat superior liability could be found where the “occurrence
was a generally foreseeable consequence of the [employment]
activity.” (Quoting Rodgers v. Kemper Constr. Co., 124 Cal. Rptr. 143,
148 (Cal. Ct. App. 1975).) Burton argues that under this formulation,
sexual impropriety would be a foreseeable consequence of
interactions between healthcare providers and patients in pain
clinics.
¶45 Burton cites out-of-jurisdiction cases to describe the
foreseeability standard she urges us to adopt. For example, she cites
Rodgers v. Kemper Construction Co. where the California Court of
Appeals defined foreseeable for respondeat superior purposes as “in
the context of the particular enterprise an employee’s conduct is not
so unusual or startling that it would seem unfair to include the loss
resulting from it among other costs of the employer’s business.” Id.
at 149. The Rodgers court employed this standard to affirm a jury
verdict holding a construction subcontractor liable for an assault
committed by its employees on work grounds but after work hours.
Id. at 149–52.
¶46 Burton also cites Marston v. Minneapolis Clinic of Psychiatry &
Neurology, Ltd., as an example of a foreseeability test. 329 N.W.2d 306(Minn. 1982). In Marston, a jury found the employer not liable for
sexual misconduct by an employee psychologist. Id. at 307. The
Minnesota Supreme Court reversed a denial of judgment
notwithstanding the verdict because the conduct occurred at the
workplace during work hours and could have been foreseeable. Id. at
307, 311. The Marston court cited testimony that sexual relations
between therapists and patients are a “well-known hazard.” Id. at
311.
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Opinion of the Court
¶47 Burton likewise directs us to Ira S. Bushey & Sons, Inc. v.
United States, 398 F.2d 167 (2d Cir. 1968), a fifty-year-old case from
the Second Circuit. In Bushey, a drunken sailor caused damage to a
dock by accidentally crashing a boat into it. Id. at 168. The dock
owner sued the sailor’s employer, the United States government. Id.at 169–70. The Bushey court held the government liable for the
sailor’s actions. Id. at 172. The Bushey court reasoned that it was
foreseeable to the United States that a sailor might find himself less
than sober but still attempt to do his job, and that this combination
could result in damage. Id. at 171–72.
¶48 The only Utah case Burton cites for her proposition that we
should adopt foreseeability is Barney v. Jewel Tea Co., 139 P.2d 878(Utah 1943). In Barney, a grocery store employee got physical with a
customer while attempting to collect a debt. Id. at 878–79. We
declared that “a principal is not liable for the willful tort of an agent
which is committed during the course of his employment unless it is
committed in the furtherance of his employer’s interests or unless
the employment is such that the use of force could be contemplated
in its accomplishment.” Id. at 879. Burton points to this language to
argue that, at least at one point, this court was inclined toward some
sort of foreseeability test.
¶49 Barney does not help Burton’s cause. After we stated the
language Burton cites, we articulated our holding: “The act (of the
[agent]) must be, not only within the scope of his employment, but
also committed in the accomplishment of objects within the line of
his duties, or in and about the business or duties assigned to him by
his employer.” Id. at 880 (cleaned up). And we ultimately concluded
that the rough business the Jewel Tea Company’s debt collector
inflicted on Barney was outside the scope of his employment. Id. In
context, the reference to “contemplated in its accomplishment” was
just an old-timey way of asking whether the conduct is “of the
general kind the agent is employed to perform.” Compare id. at 879
with M.J. v. Wisan, 2016 UT 13, ¶ 54, 371 P.3d 21 (cleaned up).
¶50 Further, even if Barney said what Burton wants it to say, it
would not control the outcome of this case. Our more recent
pronouncements in Wisan, Birkner, and J.H., do. To adopt the
foreseeability test Burton urges, we would need to overturn those
cases.
¶51 We do not overturn our precedent lightly. Eldridge v.
Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553. We have described the
burden a party must shoulder as a “heavy” one. See Rutherford v.
Talisker Canyons Fin., Co., 2019 UT 27, ¶ 3, 445 P.3d 474. Before we
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will cast aside our caselaw, a party must address: “(1) the
persuasiveness of the authority and reasoning on which the
precedent was originally based, and (2) how firmly the precedent
has become established in the law since it was handed down.”
Eldridge, 2015 UT 21, ¶ 22.
¶52 Burton does not meaningfully engage with these factors.
Burton makes brief mention of our acknowledgment in Wisan that
“the law in this area has evolved somewhat in the ensuing years”
and that some jurisdictions now reject motive-and-purpose type
tests. Wisan, 2016 UT 13, ¶¶ 55–57. But that is about all Burton offers
to meet her burden.
¶53 Burton also argues that even though the current test is
rooted in notions of fairness, the system is unfair to victims of
intentional torts who might find it difficult to recover from
employers under the current test. This might be true. But Burton
offers little more than the bare assertion that this is the case. It is
hard for us to assess whether the reasoning underpinning our
respondeat superior jurisprudence is no longer persuasive without
understanding whether the problems Burton offers exist and how
pervasive they are.
¶54 Stated differently, our existing jurisprudence strikes a
balance between important policy considerations by holding
employers liable for the torts of their employees only when they
occur in the scope of employment or when a plaintiff can show that
the employer negligently hired or supervised the employee. Burton
tells us this system does not work but fails to show us why. Without
a showing that the balance is off, we cannot conclude that the
reasoning underlying our precedent is no longer persuasive.
¶55 Burton offers even less argument on the second Eldridge
inquiry: how firmly the precedent has become established. This is
important because we are wary of disrupting the reliance that our
precedents may have created.
¶56 “As we have noted, people should know what their legal
rights are as defined by judicial precedent, and having conducted
their affairs in reliance on such rights, ought not to have them swept
away by judicial fiat.” Cope v. Utah Valley State Coll., 2014 UT 53,
¶ 19, 342 P.3d 243 (cleaned up). Burton’s reluctance to address how
firmly our precedent has taken root is telling because Chen and Alta
Pain credibly describe how parties may have “conducted their
affairs” in reliance on the existing law.
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Opinion of the Court
¶57 Chen and Alta Pain argue that employers have sought and
obtained insurance policies that cover claims for negligent hiring
and negligent supervision but lack coverage for the vicarious claims
that a change in our test would create. Burton disputes the assertion
and argues that healthcare insurers can obtain secondary policies for
such claims.
¶58 We are not well positioned to rule on the effects of
dramatically changing our test based upon unsupported assertions
on both sides of the question. Since the burden falls on Burton to
convince us that the jurisprudence is not firmly established, we must
reject her request to overturn our caselaw.
¶59 We do not mean to imply that Burton’s arguments are
without merit. Burton raises important policy concerns about how
we should balance the ability of victims to recover from those who
employ wrongdoers against the costs of imposing liability on
employers in the absence of negligent hiring and supervision.
¶60 Reasonable minds can differ on where to best draw that line.
Stare decisis means that we do not reweigh that balance and redraw
the line in every case that comes before us. Rather, stare decisis
principles counsel that we promote predictability and recognize
settled expectations by only overturning our caselaw where a party
can meet the Eldridge burden. Burton has not done that here. 6
CONCLUSION
¶61 The district court correctly held that respondeat superior
principles do not make Chen and Alta Pain vicariously responsible
for Johnson’s abuse. The Utah Physician Assistant Act does not
change that conclusion. And Burton has not convinced us that we
should discard our respondeat superior caselaw and establish a
foreseeability test. We affirm the grant of summary judgment.
_____________________________________________________________
6 Burton still has potential recourse against Chen and Alta Pain.
Her negligence and negligent supervision claims remain untouched
by this decision. Moreover, those who share Burton’s concerns about
the way our caselaw balances these interests can ask the Utah
Legislature to redraw the lines. That branch of government is better
positioned to solicit input from all interested parties and make the
policy decisions necessary to recalibrate the test in the way Burton
advocates.
14