Richmond v. Bateman ( 2024 )

2024 UT App 103THE UTAH COURT OF APPEALS
BLAINE RICHMOND,
Appellant,
v.
JOAN BATEMAN,
Appellee.
Opinion
No. 20220123-CA
Filed July 18, 2024
Fourth District Court, Provo Department
The Honorable Robert C. Lunnen
No. 160401308
Bruce M. Pritchett, Attorney for Appellant
Michael J. Miller, Kathleen Abke, and
Scarlet R. Smith, Attorneys for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.
TENNEY, Judge:
¶1 In 2009, a probate court granted Marlene Richmond’s
request to be appointed guardian over her husband Jess
Richmond. 1 Marlene’s request was supported, in part, by a letter
1. Because Jess and Marlene shared the same last name, we’ll refer
to them by their given names throughout this opinion. We’ll do
the same with respect to their son Blaine, who plays a role in this
case too. We mean no disrespect by the apparent informality.
Also, the ruling in question appointed Marlene to be Jess’s
guardian and conservator. While there are some legal differences
between the powers of a guardian and conservator, those
(continued…)
Richmond v. Bateman
that she obtained from Dr. Lynn Bateman, Jess’s longtime
physician, as well as by representations made to the court at the
probate hearing from John Maddox, an attorney who appeared on
Jess’s behalf. But as it turns out, neither Dr. Bateman nor Maddox
had done their jobs: Dr. Bateman had not met with Jess for several
months before writing his letter, nor had he performed any tests
to determine whether Jess was cognitively impaired; for his part,
Maddox had not even discussed the possibility of a guardianship
with Jess during their one brief visit before the hearing. When
some potential improprieties came to the court’s attention, the
court set aside Marlene’s guardianship. In spite of this, Marlene
managed to withdraw several hundred thousand dollars from
Jess’s bank account a short time later, after which she placed the
cash in a wheelbarrow and burned it.
¶2 Jess subsequently sued both Dr. Bateman and Maddox for
negligence. After Maddox settled, the district court granted Dr.
Bateman’s motion for summary judgment, ruling that the actions
of Maddox and Marlene were both superseding causes to any
negligence by Dr. Bateman. Jess has since passed away, but his
estate now appeals. For the reasons set forth below, we reverse
the decision granting summary judgment to Dr. Bateman.
BACKGROUND 2
Marlene’s Guardianship over Jess
¶3 Jess married Marlene for the first time in 1952, and the
couple had six children together between 1953 and 1960. The two
differences are immaterial to the issues before us in this appeal.
For simplicity, we’ll refer to the order as a guardianship order.
2. “When reviewing a grant of summary judgment, we recite the
disputed facts in a light most favorable to the nonmoving party.”
Young v. Fire Ins. Exch., 2008 UT App 114, ¶ 19, 182 P.3d 911(continued…)
20220123-CA 2 2024 UT App 103Richmond v. Bateman
divorced in 1996, and this divorce was full of financial contention.
Their son Blaine later stated in a declaration that Marlene
“removed about $250,000 from [Jess’s] bank accounts” during the
divorce and that Jess “had to fight for years in court to get [it]
back.”
¶4 After the divorce, Marlene moved to Mesquite, Nevada,
and remarried. When her second husband died, Marlene moved
closer to Jess. In 2008, Jess and Marlene remarried, and they kept
their remarriage secret from most of their children.
¶5 Dr. Bateman was the longtime primary care physician for
both Marlene and Jess. Dr. Bateman later said that he had met
with Jess “on several occasions” during the “30 or more years”
that he had treated him, though Jess “visit[ed] rather
infrequently.” In May 2009, Dr. Bateman met with Jess “for a
medical condition which [he] treated at that time.” At that visit,
Dr. Bateman did not perform any tests or procedures to determine
Jess’s mental status or cognitive abilities, but he did order a brain
MRI. There is no indication in the record of what “medical
condition” Dr. Bateman was treating, nor is there any further
information about the results of the MRI that he ordered.
¶6 In August 2009, Marlene spoke with Dr. Bateman and
asked him to write a letter supporting her request to be appointed
as Jess’s guardian. Dr. Bateman wrote and signed a letter that
read:
To Whom It May Concern:
I am the personal physician for Jess M. Richmond.
Mr. Richmond is eighty (80) years old and has been
my patient for over 40 years. It is my professional
opinion that because of diminished mental capacity
(quotation simplified). Unless otherwise noted, our recitation is
drawn from facts that were deemed undisputed by the district
court or for which we see no dispute in the record.
20220123-CA 3 2024 UT App 103Richmond v. Bateman
he is not able to adequately care for himself with
regards to his personal needs nor to properly
manage his finances. I recommend that his wife
Grace Marlene Richmond be appointed as his
Guardian and Conservator in his behalf.
Dr. Bateman later signed an affidavit in which he acknowledged
that he wrote the August 2009 letter “[a]t the request of” Marlene
“based upon her representations of [Jess’s] mental condition.”
¶7 Marlene then petitioned a probate court to appoint her as
Jess’s guardian. In response to a request from Marlene’s attorney,
John Maddox (also an attorney) agreed to represent Jess in the
matter. Maddox read Dr. Bateman’s letter and then scheduled a
time to visit with Jess at the home Jess shared with Marlene. When
Maddox arrived for the visit, Marlene told him that she feared that
if Maddox brought up the subject of a guardianship, Jess would
become angry and physically harm her. Maddox then visited with
Jess on the back patio for “20 to 30 minutes or so.” Maddox later
said that Jess didn’t ask why he was visiting and that the two
discussed Jess’s “life, where he was born, what kind of work he
did, how many children he had and their names.” Maddox
concluded that if Jess “needed a guardian anyway, there was little
to be gained by bringing up the subject and making him upset,
leading to potential violence.”
¶8 The probate court held a guardianship hearing on
November 19, 2009. Maddox appeared at the hearing on behalf of
Jess. Jess did not attend the guardianship hearing, though
Maddox later said that the court “had sent notice of the hearing to
[Jess] and as far as” Maddox knew, Jess “had received said
notice.” When the probate court asked Maddox where Jess was,
Maddox responded, “He is at home. We are afraid that he would
become disruptive and perhaps violent.”
¶9 At the hearing, Marlene presented Dr. Bateman’s letter.
Marlene’s attorney stated that “it was the suggestion of . . . [Jess’s]
doctor . . . that this guardianship and receivership take place.” The
20220123-CA 4 2024 UT App 103Richmond v. Bateman
judge asked Maddox if he had met with Jess, to which Maddox
responded that he had visited Jess at his home. When Maddox
was asked what his “report” was “as to his position,” Maddox
responded that his “report would coincide with the doctor’s
letter,” that he believed it was “in [his] client’s best interest that
[Jess] have a little help in managing his affairs,” and that Maddox
therefore had “no objection to a full guardianship.” The probate
court asked Maddox if he felt that Jess understood the purpose of
a guardianship, to which Maddox responded, “Yes, I believe he
understands the purpose of a guardianship. I believe he is also of
a firm mind that he does not need one.” After expressing some
concern that Jess wasn’t in court for the hearing, the probate court
asked Maddox if Jess had “the mental capacity to be making an
informed decision about the guardianship.” Maddox responded,
“I do not think he does. In this regard, there are times when he is
rational, but I do not believe he would be rational in this matter.”
¶10 The probate court then found that Jess was an
incapacitated person and authorized Marlene to be appointed as
his guardian “[b]ased on the objective evidence of the doctor filed
in this case, [and] also the report of the court visitor.”3
3 . A court visitor “is, with respect to guardianship and
conservatorship proceedings, an officer, employee, or special
appointee of the court with no personal interest in the
proceedings whose role is to investigate, observe, and report to
the court.” Utah R. Jud. Admin. 6-507(1)(A). A lawyer may serve
as a court visitor. Id. R. 6-507(1)(B). A court visitor is appointed in
a guardianship proceeding “to conduct an inquiry into whether
to waive the respondent’s presence at the hearing,” id. R. 6-507(2),
and may additionally be appointed “to investigate the
respondent’s circumstances and well-being, including when an
attorney is not appointed,” id. R. 6-507(2)(A). Though court
visitors need not be attorneys, Jess alleged in his complaint that
Maddox “had an attorney-client relationship” with him, and as
noted, Maddox affirmatively represented to the probate court that
(continued…)
20220123-CA 5 2024 UT App 103Richmond v. Bateman
¶11 While under the guardianship, Jess at times remained in
the home he shared with Marlene, though at other times he lived
with Blaine. At some point during this period, Marlene dropped
Jess off at an assisted living facility “with no possessions other
than a plastic Wal-Mart shopping bag with a few pairs of
underwear, and he was under the belief that she had dropped him
there to stay permanently, and that he was not free to go.” The
assisted living facility staff reinforced Jess’s impression that he
was not free to go until Blaine was able to pick him up. But even
when Blaine had picked up Jess, the staff called the police and
tried to get Jess to return to the facility. Blaine later said Jess was
“terrified of being kept there against his will.”
After Marlene’s Guardianship Is Set Aside, She Destroys Jess’s Money
¶12 Blaine and his brothers filed an emergency petition to
remove Marlene’s guardianship over Jess. In June 2010, the
probate court held a hearing on the petition and learned that
Marlene was not providing reports on Jess’s assets. The court
believed this violated her fiduciary duty as a guardian “to
aggressively find out what the estate is and report to the court.”
Through representations from the brothers’ counsel, Marlene’s
counsel, and Marlene herself, the court learned that after Marlene
had been appointed as Jess’s guardian, she had transferred title of
the couple’s home into a trust in her name, sold three of Jess’s
vehicles (two of which had been titled in his name only), and
purchased a car for herself. The court also learned that Marlene
now had access to some of Jess’s accounts and that she had the
ability to draw from them. Because of what it had learned, the
probate court ordered that “nothing be done to change the status
of the ownership of the home” to prevent Marlene from making
any further transfers, and the judge also ordered Marlene to leave
he was “appearing on behalf of [Jess], the incapacitated person.”
From this record and this legal backdrop, we therefore
understand the probate court’s reference to the “court visitor” to
be a reference to Maddox, and the parties’ arguments to us on
appeal are consistent with this understanding as well.
20220123-CA 6 2024 UT App 103Richmond v. Bateman
any cash untouched and not withdraw any cash that was still in
an account, with the exception of forwarding $1,500 each month
to one of Jess’s sons for Jess’s “benefit and care.” The court then
temporarily suspended Marlene’s appointment as guardian,
ordered her to make an accounting of any assets that she had
handled, and ordered a further evaluation of Jess to determine his
mental capacity.
¶13 A clinical psychologist soon conducted a
neuropsychological evaluation of Jess. In his report, he noted that
Jess became aware of the guardianship when “he was told he
could no longer write checks at his bank.” The psychologist also
observed that Jess had “provided considerably more detail than
might be expected of an individual who is being evaluated for
dementia” and that test results showed he was “clearly not into a
dementia range.” The psychologist concluded that Jess showed
“no signs of general cognitive or intellectual dysfunction and
seem[ed] to be capable of making decisions consistent with his age
and education.”
¶14 In February 2011, the probate court issued an order setting
aside the appointment of Marlene as Jess’s guardian. In this order,
the court found that Jess did “not meet the definition of an
incapacitated person and [did] not need a guardian.” The court
ordered Marlene to “sign all documents necessary” and “to turn
over” all of Jess’s assets that she controlled. The court further
ordered Marlene to file a final accounting with the court.
¶15 Despite this order, Marlene proceeded to withdraw “the
entirety of [Jess’s] funds” from his bank accounts—an amount
that was well over $200,000. According to Marlene’s subsequent
explanation, she was able to do this because Jess had asked her to
withdraw the money and give it to him. After withdrawing the
money, Marlene decided that she needed to get rid of it because,
in her view, the money was “destroying the family.” According
to an account later provided by Marlene’s attorney, Marlene then
took the cash home, put it in a wheelbarrow in the backyard, and
20220123-CA 7 2024 UT App 103Richmond v. Bateman
burned it. After doing so, Marlene unsuccessfully attempted
suicide.
Lawsuit and Summary Judgment
¶16 In 2013, Jess sued Dr. Bateman for negligence, but that case
was voluntarily dismissed without prejudice in 2015. Jess died in
early 2015, and in 2016, his estate (acting through Blaine as the
administrator) filed a complaint in district court against both Dr.
Bateman and Maddox, asserting claims of negligence against
both. Dr. Bateman died in 2017, so the claims against him
proceeded against his widow as personal representative of his
estate. 4
¶17 In May 2018, Jess settled with Maddox and Maddox was
dismissed from the case. The next month, Dr. Bateman moved for
summary judgment, arguing that Jess couldn’t “show that Dr.
Bateman’s alleged misconduct proximately caused injuries” to
Jess because there were unforeseeable, intervening causes that
directly caused Jess’s alleged injuries. According to Dr. Bateman,
the actions of Maddox and Marlene both qualified as intervening
and superseding causes. 5
4. For simplicity, we’ll refer to “Jess” and “Dr. Bateman” as the
parties for the remainder of this opinion, even though, as
indicated, this second case was largely litigated by their respective
estates.
5. As will be apparent from the various citations to the record and
authorities in this opinion, the terms “intervening cause” and
“superseding cause” are often used together (and sometimes
appear to be used interchangeably). There may be some subtle or
conceptual differences between the two terms, but if there are,
those differences aren’t relevant to the issues we decide in this
opinion. For simplicity, we’ll generally refer to the doctrine as the
superseding cause doctrine, but we’ll leave untouched references
from either the record or the cases that refer to an intervening
cause.
20220123-CA 8 2024 UT App 103Richmond v. Bateman
¶18 Jess opposed the motion for summary judgment. He
argued that there were “key facts that create[d] genuine issues of
material fact concerning proximate cause” that should be decided
by a jury. In support of this opposition, Jess submitted an affidavit
from Dr. Frederick Gottlieb, who is board-certified in internal
medicine and was also one of Jess’s treating physicians. In this
affidavit, Dr. Gottlieb expressed his opinion that Dr. Bateman had
“breach[ed] the standard of care” by writing the letter saying that
Jess lacked mental capacity and needed a guardian without
“examining [Jess] or testing him at the time.” Dr. Gottlieb further
observed that it was “more likely than not foreseeable that a
divorced ex-wife such as Marlene, who had taken money” from
Jess “before, and who came back into his life and secretly
remarried him, could likely arrange to take control of his money
again.” According to Dr. Gottlieb, “physicians dealing with
elderly patients . . . know that it is foreseeable that a family
member may try to take control of an elderly person’s estate—it
is a known foreseeable risk that [he had] become acquainted with
in [his] practice.”
¶19 In August 2019, the district court denied the motion for
summary judgment, ruling that the “issue of proximate cause
should be sent to a jury and not decided on summary judgment.”
The court opined that this was a “very, very, very close call,” but
it ultimately concluded that a jury should “decide whether the
intervening acts by Marlene or Mr. Maddox qualify as intervening
causes that eliminate Dr. Bateman’s liability.”
¶20 In January 2021, the case was reassigned to a new judge. In
August 2021, Dr. Bateman filed a motion to reconsider the
summary judgment ruling that had previously been issued by the
prior judge.
¶21 In January 2022, the court (through the new judge) issued
a ruling granting the motion for reconsideration. In the court’s
view, reconsideration was warranted because “the prior decision
was clearly erroneous and would result in a manifest injustice.”
The court then ruled that Dr. Bateman was entitled to summary
20220123-CA 9 2024 UT App 103Richmond v. Bateman
judgment because, as a matter of law, the actions of Maddox and
Marlene were both superseding causes that cut off any causal
connection between Dr. Bateman’s conduct and Jess’s injuries.
¶22 In doing so, the court first concluded that Maddox had
committed “extraordinary violations of his ethical and fiduciary
duties” and that Dr. Bateman “could not have reasonably
foreseen” that Maddox “would violate his ethical duties to
represent his client zealously and to act with candor to the probate
court.” From this, the court concluded that without Maddox’s
negligence, Marlene never would have been appointed as
guardian—and, thus, that Jess never would have been harmed.
¶23 The court next ruled that Marlene’s actions also constituted
a superseding cause. In the court’s view, “the specific mechanism
of harm in this case” was “Marlene’s burning of [Jess’s] assets.”
The court then concluded that because “[n]o reasonable juror
could find that Dr. Bateman could reasonably foresee that
Marlene would burn [Jess’s] money in a wheelbarrow,” her
actions constituted “an intervening and superseding cause that
absolves Dr. Bateman of liability.”
¶24 Based on its determination that there were two
superseding causes, the court granted summary judgment to Dr.
Bateman and dismissed the claims against him. And because the
court was granting summary judgment on proximate cause alone,
it concluded that Dr. Gottlieb’s affidavit was “irrelevant” because
Dr. Gottlieb’s opinions only went to the question of whether Dr.
Bateman had breached the standard of care, not the question of
whether the “breach proximately caused injury or any issues
relating to intervening cause.”
ISSUE AND STANDARD OF REVIEW
¶25 Jess appeals the district court’s decision to grant summary
judgment to Dr. Bateman. We review a district court’s “legal
conclusions and ultimate grant or denial of summary judgment
20220123-CA 10 2024 UT App 103Richmond v. Bateman
for correctness, viewing the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party.” Swanigan v. Avenues Healthcare Inc., 2023 UT App 2, ¶ 10,
524 P.3d 173 (quotation simplified).
ANALYSIS
¶26 The district court ruled that the actions of Maddox and
Marlene were both superseding causes that absolved Dr. Bateman
of liability for negligence. Jess now challenges that ruling. For the
reasons set forth below, we reverse.
A. What’s Not at Issue
¶27 Before addressing the district court’s ruling, we first note a
few things that are not at issue in this appeal or that we do not
decide.
¶28 First, Jess has not challenged the court’s decision to
reconsider the earlier ruling that had denied Dr. Bateman’s
motion for summary judgment. As a result, our analysis is limited
to the question of whether the court erred when it granted
summary judgment to Dr. Bateman.
¶29 Second, in the ruling granting summary judgment to Dr.
Bateman, the court did not rule on any questions relating to duty
or breach; instead, its ruling was only about causation. And on
that front, the court didn’t rule on causation generally—i.e., it did
not rule on whether Dr. Bateman’s acts did or did not cause harm
to Jess. Rather, the court simply ruled that there were two
superseding causes that broke any causal chain that might have
otherwise existed.
¶30 Third, in his arguments on appeal, Dr. Bateman advances
an alternative basis for affirmance—namely, he asks us to rule
that he did not violate any duty that he owed to Jess. We decline
the invitation to rule on this proposed issue.
20220123-CA 11 2024 UT App 103Richmond v. Bateman
¶31 We “are mindful that we are a court of review, not of first
view.” R.O.A. Gen. Inc. v. Salt Lake City Corp., 2022 UT App 141,
¶ 39, 525 P.3d 100 (quotation simplified). As a result, in most
cases, our institutional role is best served when we review a
decision from a lower court on a particular issue. That said, it is
“well-established that we may affirm a judgment, order, or decree
appealed from if it is sustainable on any legal ground or theory
apparent on the record, even though that ground or theory was
not identified by the lower court as the basis of its ruling.” Bailey
v. Bayles, 2001 UT App 34, ¶ 9, 18 P.3d 1129 (quotation simplified).
But this doctrine is discretionary. And here, it’s not just the case
that the district court did not rule on this issue. In addition, Dr.
Bateman did not even raise it below as a potential argument.
Because of this, Jess did not have the opportunity below to present
any contrary evidence or arguments about it. It’s one thing for an
appellate court to rule on an issue that was presented and argued
below but was not ruled on by the district court; it’s quite another
for an appellate court to rule on an issue that is being presented
for the first time on appeal. For reasons of both fairness and
institutional competence, appellate courts are generally reluctant
to do the latter, and we see no reason to depart from this norm
here. We accordingly decline Dr. Bateman’s invitation to affirm
on the basis of a potential argument that was neither raised nor
ruled on below.
¶32 Finally, as discussed below, the issue on appeal turns on
the superseding cause doctrine. In State v. Oliver, we suggested
that by “relieving the original tortfeasor of all liability, the
superseding cause doctrine is at least arguably inconsistent with
principles of comparative fault, which have been a part of Utah
law since at least 1973.” 2018 UT App 101, ¶ 33 n.11, 427 P.3d 495(emphasis in original). But we also pointed to an earlier case
where this court had expressed skepticism of that view, given that
“on many occasions since 1973 Utah appellate courts have
continued to refer to and apply” the superseding cause doctrine.
Id. We ultimately declined to resolve this potential issue in Oliver,
given that neither party had “mount[ed] any argument” about
20220123-CA 12 2024 UT App 103Richmond v. Bateman
whether “the superseding cause doctrine has been supplanted by
Utah’s comparative fault statutes.” Id.¶33 Here, Jess sued both Maddox and Dr. Bateman, thus
potentially implicating the negligence of both. And as should also
be clear from the discussion that runs throughout this opinion,
there’s reason to think that a jury could believe that Marlene bears
some responsibility for the harm too. Although Dr. Bateman filed
a notice of intent to allocate fault to Maddox below and later
raised the possibility of allocating fault as an alternative basis for
relief in a subsequent pleading, the district court decided the
motion for summary judgment on superseding cause grounds
alone without mentioning the potential fault allocation. For our
purposes, what matters is that, as in Oliver, neither party has
briefed the question of whether the superseding cause doctrine
remains viable in the comparative fault world we now live in.
Because of this, we again have no occasion to rule on whether this
is so.
B. Legal Framework for Proximate Cause and Superseding
Cause Determinations
¶34 This leaves the question that is properly before us, which
is whether the district court erred in granting summary judgment
to Dr. Bateman based on the court’s determinations that, as a
matter of law, the actions of Maddox and Marlene both qualified
as superseding causes. Before addressing the court’s separate
conclusions regarding Maddox and then Marlene, we first set
forth the general principles that guide our analysis of both.
¶35 As noted, Jess sued Dr. Bateman for negligence based on
medical malpractice. To make “a prima facie case of medical
malpractice, a plaintiff must establish (1) the standard of care by
which the physician’s conduct is to be measured, (2) breach of that
standard by the physician, (3) injury that was proximately caused
by the physician’s negligence, and (4) damages.” Dierl v. Birkin,
2023 UT App 6, ¶ 17, 525 P.3d 127 (quotation simplified), cert.
denied, 525 P.3d 1107 (Utah 2023). “A plaintiff’s failure to present
20220123-CA 13 2024 UT App 103Richmond v. Bateman
evidence that, if believed by the trier of fact, would establish any
one of the elements of the prima facie case justifies a grant of
summary judgment to the defendant.” Id. (quotation simplified).
¶36 The district court granted summary judgment based on the
third element—proximate cause. To satisfy this element, Jess was
required to show that the alleged breach, “in natural and
continuous sequence (unbroken by an efficient intervening
cause), produce[d] the injury” and that without it, “the result
would not have occurred.” Breton v. Clyde Snow & Sessions, 2013
UT App 65, ¶ 9, 299 P.3d 13 (quotation simplified). As indicated,
the district court concluded that there were two superseding
causes.
¶37 “An intervening cause, a cause that interrupts proximate
causation, is an independent event, not reasonably foreseeable,
that completely breaks the connection between fault and
damages.” Wood v. United Parcel Service, Inc., 2021 UT 49, ¶ 15, 496
P.3d 139 (quotation simplified). And a “superseding cause is a
magical thing: it operates to relieve the original actor from all
liability for her original (and potentially tortious) act.” Oliver, 2018
UT App 101, ¶ 33 (emphasis in original).
¶38 “The key words . . . are reasonably foreseeable.” Wood, 2021
UT 49, ¶ 15 (quotation simplified). Thus, even if there is a
subsequent act that also contributes to the harm, that act does not
qualify as a superseding cause (i.e., it does not relieve the original
actor of liability) if the actor “should have realized that a third
person might so act” or if “a reasonable person . . . would not
regard it as highly extraordinary that the third person had so
acted.” Id. ¶ 16 (quotation simplified). Moreover, for purposes of
a superseding cause analysis, foreseeability is “not concerned”
with “whether a reasonable person could anticipate a general risk
of injury to others.” Dee v. Johnson, 2012 UT App 237, ¶ 5, 286 P.3d
22 (quotation simplified). Rather, foreseeability focuses on the
“specifics of the alleged tortious conduct, such as whether the
specific mechanism of the harm could be foreseen.” Id. (quotation
simplified).
20220123-CA 14 2024 UT App 103Richmond v. Bateman
¶39 As indicated, the superseding cause analysis contemplates
that multiple actions that occurred at different times may
contribute to the same injury. But even so, our supreme court has
recently clarified that “superseding causation cannot be assessed
by looking to which party’s negligence was closest in time” to the
event in question. Wood, 2021 UT 49, ¶ 39. Instead, the
superseding cause inquiry functions “more broadly than that,”
turning on whether the conduct of the subsequent actors was
reasonably foreseeable. Id.¶40 And this is consistent with how proximate cause works
generally. After all, “there can be more than one proximate cause
or, more specifically, substantial causative factor, of an injury.”
McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah 1993).
Several cases have thus recognized that an initial actor can be held
liable for its own negligence, even if subsequent actors were
negligent too. In Mulherin v. Ingersoll-Rand Co., for example, the
court held that there can be “concurrent proximate causes” of an
injury and that the “latter fault” of one actor “should not blot out
the consequences of the former, when both were concurrent
causes of the accident.” 628 P.2d 1301, 1303 (Utah 1981). And in
Godesky v. Provo City Corp., our supreme court upheld a jury
verdict that assessed liability against an initially negligent actor,
even though the jury found that other subsequent actors had
acted negligently too. 690 P.2d 541, 543–44 (Utah 1984). The
supreme court explained that an
intervening negligent act does not automatically
become a superseding cause that relieves the
original actor of liability. The earlier actor is charged
with the foreseeable negligent acts of others.
Therefore, if the intervening negligence is
foreseeable, the earlier negligent act is a concurring
cause.
Id. at 545. In short, the application of the superseding cause
doctrine turns on the foreseeability of the subsequent acts.
20220123-CA 15 2024 UT App 103Richmond v. Bateman
¶41 As indicated, the ruling at issue granted summary
judgment to a defendant on the basis of the superseding cause
doctrine. A “court shall grant summary judgment if the moving
party shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law.” Utah R. Civ. P. 56(a). When a court considers such a motion,
“all facts and the reasonable inferences to be made therefrom
should be construed in a light favorable to the non-moving
party.” USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 33, 235 P.3d
749.
¶42 “Causation is a highly fact-sensitive element of any cause
of action and generally cannot be resolved as a matter of law.”
Breton, 2013 UT App 65, ¶ 10 (quotation simplified); see also
Godesky, 690 P.2d at 544 (stating that proximate causation “is
generally a matter of fact to be determined by the jury”). This
remains true with respect to questions of superseding cause. As
indicated, the superseding cause analysis largely turns on
foreseeability. But as explained by our supreme court,
foreseeability “turns on a host of factors including who the person
is, what they observe, their ability to remedy the condition, and
the time they have to respond before the injury occurs.” Wood,
2021 UT 49, ¶ 42. As a result, a foreseeability “inquiry is highly
fact dependent.” Id.¶43 Even so, there are cases in which summary judgment may
be appropriate on questions of causation generally or superseding
cause more particularly. But such cases “rarely” occur. Nielsen v.
LeBaron, 2023 UT App 29, ¶ 21, 527 P.3d 1133 (quotation
simplified), cert. denied, 534 P.3d 751 (Utah 2023). And they
involve situations in which “a reasonable jury could only come to
one conclusion on the facts before it.” Wood, 2021 UT 49, ¶ 13. In
the superseding cause context, this would mean that the facts
regarding foreseeability are “so clear that reasonable persons
could not disagree.” Nielsen, 2023 UT App 29, ¶ 21 (quotation
simplified).
20220123-CA 16 2024 UT App 103Richmond v. Bateman
C. Maddox’s Actions
¶44 We first consider the district court’s conclusion that
Maddox’s actions were a superseding cause. In the court’s view,
Dr. Bateman “could not have reasonably foreseen” that Maddox
“would violate his ethical duties to represent his client zealously
and to act with candor to the probate court.” Because of this, the
court held that Maddox’s actions constituted a superseding cause
that absolved Dr. Bateman of liability.
¶45 It’s true that, as a matter of chronological sequencing, Dr.
Bateman’s alleged misconduct (writing the letter without first
examining or testing Jess) preceded Maddox’s alleged
misconduct (failing to adequately discuss the matter with his
client and making misrepresentations to the court). But as
explained, “superseding causation cannot be assessed by looking
to which party’s negligence was closest in time to the” event.
Wood, 2021 UT 49, ¶ 39. Instead, the question is whether the
subsequent actions were foreseeable to the initial actor. Unlike the
district court, we believe that a jury could reasonably conclude
that it would have been foreseeable to Dr. Bateman that an
attorney might subsequently act in this manner.
¶46 The court’s ultimate ruling rested in no small part on its
belief that it would not have been “reasonably foreseeable” to Dr.
Bateman that “a third party” (namely an attorney) would
subsequently “take action that would place his license to practice
law at risk.” As an aspirational matter, we certainly expect all
attorneys to act in ethically appropriate ways, and we share the
district court’s belief that most attorneys do. But even so, we don’t
regard it as categorically unforeseeable that an attorney would act
unethically. We’ve previously recognized that, as to persons
generally, even “criminal conduct” might, “under the
circumstances, [be] reasonably foreseeable.” Steffensen v. Smith’s
Mgmt. Corp., 820 P.2d 482, 488 (Utah Ct. App. 1991), aff’d, 862 P.2d
1342 (Utah 1993). And as lamentable as it may be to acknowledge,
attorneys sometimes do act unethically or even criminally. The
Utah Bar Journal publishes a monthly report summarizing recent
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attorney disciplinary actions. The Utah Office of Professional
Conduct (the organization charged with investigating attorney
misconduct) has compiled a document that contains those
summaries since 1988, and that document currently comes in at
559 pages. 6 Also, there are any number of reported appellate cases
involving Utah attorneys who acted unethically or even
criminally—sometimes for lack of diligence and sometimes for
personal gain. See, e.g., In re Steffensen, 2021 UT 1, 481 P.3d 468; In
re Barrett, 2017 UT 10, 391 P.3d 1031; In re Lundgren, 2015 UT 58,
355 P.3d 984; In re Corey, 2012 UT 21, 274 P.3d 972; In re Grimes,
2012 UT 87, 297 P.3d 564; In re Jardine, 2012 UT 67, 289 P.3d 516; In
re Johnson, 2001 UT 110, 48 P.3d 881; In re Tanner, 960 P.2d 399(Utah 1998); In re Babilis, 951 P.2d 207 (Utah 1997). 7
¶47 The point here is illustrative, not particular. After all, Dr.
Bateman wasn’t a lawyer, and we suspect that he was not
studiously reading the Utah Bar Journal or Utah’s appellate cases.
But even so, incidents such as these unfortunately keep
happening, and they certainly seep into the public’s
consciousness. Thus, unlike the district court, we don’t regard it
as being so difficult to imagine an attorney taking “action that
would place his license to practice law at risk” that Maddox’s
conduct must be deemed unforeseeable as a matter of law.
¶48 This leads to our second point, which functions on more of
a case-specific level. As noted, the foreseeability “inquiry is highly
6 . Lawyer Public Discipline, Office of Professional Conduct,
https://www.opcutah.org/wp‑content/uploads/2024/01/Attorney
_Public_Disciplin_OPC_Master_Jan_24.pdf [https://perma.cc/4Y
9Z-X2L9].
7. This string cite provides just a short sampling. And this is
hardly a new phenomenon. See, e.g., In re Platz, 132 P. 390, 391
(Utah 1913) (affirming the disbarment of an attorney for
unspecified acts that, in the supreme court’s view, made him
“morally an unfit, unsafe, and improper person” to be entrusted
“with the powers of an attorney at law”).
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fact dependent,” Wood, 2021 UT 49, ¶ 42, so a jury may find, on
the facts of a particular case, that a particular harm was
foreseeable. And since the case arises in the context of a summary
judgment motion, “all facts and the reasonable inferences to be
made therefrom should be construed in a light favorable to the
non-moving party.” USA Power, 2010 UT 31, ¶ 33.
¶49 The record here provides a basis from which a jury could
find that Dr. Bateman could have foreseen the possibility of
conduct like Maddox’s. Again, Dr. Bateman was the primary care
physician for Jess, who was his elderly patient. During the
litigation below, Jess submitted an affidavit from Dr. Gottlieb in
which Dr. Gottlieb observed that “physicians dealing with elderly
patients . . . know that it is foreseeable that a family member may
try to take control of an elderly patient’s estate” and that this “is a
known foreseeable risk.” 8
¶50 The circumstances at issue here would have supported just
such a suspicion. After all, Dr. Bateman was the longtime
physician of both Marlene and Jess, so it’s reasonable to infer from
this record that he would have known about their complicated
marital history. In any event, it’s undisputed that Dr. Bateman
wrote the August 2009 letter “[a]t the request of” Marlene and
“based upon her representations of [Jess’s] mental condition.”
Since Dr. Bateman knew that Marlene was asking him (a doctor)
to sign off on a guardianship request for her husband even though
Dr. Bateman had not conducted an independent examination to
confirm her representations about Jess’s mental state, Dr.
Bateman would have reason to think that she might make a
8 . The district court thought that Dr. Gottlieb’s affidavit was
“irrelevant” to the question of superseding cause, given that Dr.
Gottlieb’s conclusions were couched in terms of the standard of
care. We disagree with the court’s conclusion that this affidavit
has no bearing here. Dr. Gottlieb observed that this particular risk
is known to doctors who treat elderly patients, which would have
direct bearing on whether it was foreseeable and is the very
question at issue in this appeal.
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similar request of others who might also be involved in the
process—which would include, of course, an attorney.
¶51 To be clear: we’re not holding that, as a matter of law, Dr.
Bateman did foresee this. Rather, what we’re saying is that, given
(i) the general dynamics in play (one spouse attempting to obtain
a guardianship over the other, with the result being that the
spouse would obtain control over the other’s finances), (ii) the
more particular dynamics of this case (the spouse asking the
doctor to sign off on this request without even examining the
other spouse, this doctor’s longstanding relationship with both
spouses, and the couple’s complicated marital history), and
(iii) the known societal phenomena of both elder fraud and
attorney misconduct, a jury could reasonably conclude that it was
foreseeable to Dr. Bateman that, if he signed a letter supporting a
guardianship without doing his due diligence, an attorney might
do something similar too.
¶52 So viewed, we don’t regard this as the kind of case for
which “a reasonable jury could only come to one conclusion on
the facts before it.” Wood, 2021 UT 49, ¶ 13. Because of this, the
district court erred in concluding that, as a matter of law,
Maddox’s misconduct qualified as a superseding cause.
D. Marlene’s Actions
¶53 The district court also ruled that Marlene’s actions
qualified as “an intervening and superseding cause that absolves
Dr. Bateman of liability.” This was so because, in the court’s view,
her “violation of court orders and burning [Jess’s] money in a
wheelbarrow [were] not reasonably foreseeable to Dr. Bateman.”
For many of the same reasons set forth above, we reverse this
ruling too.
¶54 Although Marlene’s conduct was certainly unethical and
very likely illegal, a jury could still think that it was foreseeable
under the circumstances. See Steffensen, 820 P.2d at 488(recognizing that even “criminal conduct” might, “under the
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circumstances, [be] reasonably foreseeable”). And again, the
circumstances at issue here were that Marlene was asking
Dr. Bateman to tell a court that Jess, Dr. Bateman’s elderly patient,
was mentally infirm and needed her to be appointed as his
guardian, even though Dr. Bateman had conducted no testing or
consultations to confirm this. Dr. Gottlieb opined that “physicians
dealing with elderly patients . . . know that it is foreseeable that a
family member may try to take control of an elderly person’s
estate—it is a known foreseeable risk that [he had] become
acquainted with in [his] practice.” In these circumstances, a jury
could find that it would have been foreseeable to Dr. Bateman that
any failure to verify the statements he made might assist Marlene
in improperly obtaining control over Jess’s assets and misusing
them.
¶55 In holding otherwise, the district court focused on what it
perceived to be the “mechanism of harm in this case—that is,
Marlene’s burning of [Jess’s] assets.” Focusing in on this specific
action, the court expressed its view that “[n]o reasonable juror
could find that Dr. Bateman could reasonably foresee that
Marlene would burn [Jess’s] money in a wheelbarrow.”
¶56 The court’s general consideration of the “mechanism of
harm” was appropriate. In a series of cases, our courts have
indeed discussed the mechanism of harm as it relates to the
foreseeability analysis. But read in their proper context, those
cases don’t support the level of specificity that the district court
employed here.
¶57 As explained by our supreme court, the general framework
is this:
Some variation of the notion of foreseeability is a
factor in three of four elements of a tort: duty,
breach, and proximate cause. Yet the terminology is
confusing, as the term has different connotations as
to each of the different tort elements to which it is
applied. An essential difference among the elements
20220123-CA 21 2024 UT App 103Richmond v. Bateman
is that duty is a question of law determined on a
categorical basis, while breach and proximate cause
are questions for the fact finder determined on a
case-specific basis. This means that foreseeability in
duty analysis is evaluated at a broad, categorical
level. In duty analysis, foreseeability does not
question the specifics of the alleged tortious conduct
such as the specific mechanism of the harm.
B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 25, 275 P.3d 228 (quotation
simplified). Other Utah decisions have reinforced and applied this
same framework. In Mower v. Baird, for example, our supreme
court held that at the duty stage, foreseeability looks to “the
general relationship between the alleged tortfeasor and the victim
and the general foreseeability of harm,” while at the breach or
causation stages, the focus is on “the specifics of the alleged
tortious conduct such as the specific mechanism of the harm.”
2018 UT 29, ¶ 24, 422 P.3d 837 (quotation simplified); see also Davis
v. Wal-Mart Stores Inc., 2022 UT App 87, ¶ 18, 514 P.3d 1209, cert.
denied, 529 P.3d 827 (Utah 2022).
¶58 The particular facts at issue in Jeffs help illustrate how this
distinction works in practice. There, a nurse practitioner had
prescribed “at least six medications” to her patient. Jeffs, 2012 UT
11, ¶ 2. “[W]ith all of these drugs in his system,” the patient shot
and killed his wife, and he later pleaded guilty to aggravated
murder. Id. The patient’s children subsequently filed a civil suit
against the nurse practitioner and others who were involved in
the patient’s medical care. Id. ¶ 3. That suit “alleged negligence in
the prescription of the medications that caused [the patient’s]
violent outburst and his wife’s death.” Id. The district court
dismissed the suit, concluding that the nurse practitioner owed
no duty to the children. Id. ¶ 4. The supreme court reversed,
stating that for purposes of a duty analysis, the foreseeability
inquiry would look to whether the “likelihood of some type of harm
[was] sufficiently high that a reasonable person could anticipate a
general risk of injury to others.” Id. ¶ 27 (emphases added). By
contrast, the supreme court held that for purposes of “a breach or
20220123-CA 22 2024 UT App 103Richmond v. Bateman
proximate cause argument,” the question would be whether, “in
this specific case,” there was reason to think that the “drug
interactions and psychological considerations at stake would lead
a reasonable physician to take additional precautions because she
could foresee that [the patient] might become violent or dangerous,”
which the court saw as the “specific mechanism of injury” in that
case. Id. ¶ 26 (emphasis added).
¶59 Turning back to this case, the district court below believed
that, for purpose of the causation analysis, the “specific
mechanism of injury” was the act of burning Jess’s money in a
wheelbarrow. From this, the court concluded that this specific
mechanism was not foreseeable. But this focus was simply too
narrow, and if this level of specificity were required, it could lead
to an endpoint in which appropriately actionable harms might
never be deemed foreseeable. If a machine’s manufacturer
negligently installed a widget, for example, a jury wouldn’t need
to think it foreseeable that the widget might dislodge and strike
an unlucky worker in the right eye, as opposed to the forehead or
the throat or the chest. It would be enough for the jury to think it
foreseeable that the widget might dislodge and strike a worker,
thereby producing an injury.
¶60 In this sense, we think it noteworthy that in Jeffs, the
supreme court referred to the “specific mechanism of injury” as
being the possibility that the patient “might become violent or
dangerous” as a result of the negligently prescribed medications.
Id. The court didn’t go further, however, such as by holding that
the plaintiffs were required to show that it was foreseeable that
the patient would become violent and harm his wife with a gun—
i.e., the court didn’t hold that the nurse practitioner would have
been absolved of liability if the patient had hurt some other
individual instead, nor did the court hold that the nurse
practitioner would have been absolved of liability if the patient
had hurt his wife with a knife or some other weapon instead of a
gun. Rather, the framework that the court used contemplated that,
for purposes of duty, the question turned on the foreseeability of
“some type of harm” or of “a general risk of injury to others,” id.
20220123-CA 23 2024 UT App 103Richmond v. Bateman
¶ 27, while for purposes of breach or causation, the question
turned on the foreseeability that the patient “might become
violent or dangerous,” id. ¶ 26.
¶61 Applied here, the duty question would thus turn on
whether it was foreseeable to Dr. Bateman that if Marlene were
improperly appointed as Jess’s guardian, Jess might suffer “some
type of harm.” Then, for purposes of breach or causation, the
appropriate question would be whether it was foreseeable that
Jess might be harmed in the particular way that he was harmed
here: by Marlene misappropriating his assets. We thus disagree
with the court’s conclusion that it must have also been foreseeable
exactly what Marlene would do with those assets. Put differently,
whether Marlene burned Jess’s money in a wheelbarrow, spent
his life savings on lottery tickets, or gave his cars and other
property away to strangers, Jess would still have been injured by
the specific mechanism of Marlene improperly accessing and then
misusing his assets. For these purposes, that would have been
enough.
¶62 So viewed, and for the reasons set forth above, we conclude
that a jury could reasonably think it was foreseeable that if
Marlene were improperly appointed as Jess’s guardian, she
would access and misuse Jess’s money. As a result, we disagree
with the court’s conclusion that, as a matter of law, Marlene’s
actions were a superseding cause that absolved Dr. Bateman of
liability.
CONCLUSION
¶63 We disagree with the district court’s conclusion that, as a
matter of law, the actions of both Maddox and Marlene qualified
as superseding causes. We therefore reverse the grant of summary
judgment and remand for further proceedings consistent with this
opinion.
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