               This opinion is subject to revision before final
                    publication in the Pacific Reporter

                              2018 UT 30

                                  IN THE

       SUPREME COURT OF THE STATE OF UTAH

                            ROCIO SMITH,
                               Appellant,
                                     v.
                       KAYELYN ROBINSON,
                                Appellee.

                            No. 20160106
                          Filed July 5, 2018

                          On Direct Appeal

                  Fourth District, Spanish Fork
                 The Honorable M. James Brady
                         No. 150300034

                               Attorneys:
 Sara Pfrommer, Ronald D. Wilkinson, Nathan S. Shill, Orem, for
                          appellant
   James Egan, Stephen W. Owens, Salt Lake City, for appellee

  JUSTICE HIMONAS authored the opinion of the court, in which
  CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE
                PEARCE, and JUDGE PETTIT joined.
Due to her retirement, JUSTICE DURHAM did not participate herein;
             DISTRICT COURT JUDGE KARA PETTIT sat.
JUSTICE PETERSEN became a member of the Court on November 17,
 2017, after oral argument in this matter and accordingly did not
                            participate.

   JUSTICE HIMONAS, opinion of the Court:
                         INTRODUCTION
   ¶ 1 This case presents the question of whether a treating
therapist owes a duty of reasonable care to a nonpatient parent
                         SMITH v. ROBINSON
                         Opinion of the Court

when treating that parent’s child for potential allegations of
sexual abuse. We answer this question in Mower v. Baird, 2018 UT
29, ---P.3d---, a companion case that we also decide today. There,
we hold that a treating therapist “owes a duty to a minor patient’s
parents to refrain from affirmative acts that recklessly violate the
standard of care in a manner that gives rise to false memories or
false allegations of sexual abuse committed by the plaintiff
nonpatient parent.” Mower, 2018 UT 29, ¶ 114. We remand this
case for proceedings consistent with our opinion in Mower.
                          BACKGROUND
    ¶ 2 Rocio Smith had two children with her ex-husband,
Aaron Smith. 1 Mr. Smith and his new wife (Stepmother) made
several allegations that Ms. Smith had sexually abused the
children. Mr. Smith filed a petition to terminate Ms. Smith’s
parental rights.
    ¶ 3 After this, Stepmother brought the children to Kayelyn
Robinson for therapy and told Ms. Robinson that therapy was
being sought because of the alleged sexual abuse. Ms. Robinson
improperly relied upon the information provided by Mr. Smith
and Stepmother and made allegations that Ms. Smith had sexually
abused the children. During treatment, Ms. Robinson also
inappropriately acted as a treatment provider and forensic
evaluator. Ms. Robinson worked with Mr. Smith and Stepmother
to actively advocate against Ms. Smith. Despite Ms. Robinson’s
clear conflict of interest, she continued providing therapy to the
children.
    ¶ 4 At one point, the court hearing the custody dispute
ordered Ms. Robinson to stop acting as the children’s therapist
and to have no further contact with the children. Ms. Robinson
blatantly violated this court order. Additionally, Ms. Robinson
used somebody else’s key to access the children’s
HIPPA-protected records and provided them to the parties, their
attorneys, and the court.
    ¶ 5 As a result of Ms. Robinson’s actions, Ms. Smith lost
visitation with her children for several years and “endured


   1 Because this case is before us on appeal of a motion to
dismiss for failure to state a claim, we, like the district court, take
the factual allegations in the complaint as true. See Hudgens v.
Prosper, Inc., 2010 UT 68, ¶ 2, 243 P.3d 1275; Brown v. Div. of Water
Rights of Dep’t of Nat. Res., 2010 UT 14, ¶ 10, 228 P.3d 747.

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                         Opinion of the Court

personal defamation, lost income and employment, and incurred
enormous legal expenses.” 2 Ms. Smith filed suit against
Ms. Robinson for malpractice and negligent infliction of emotional
distress.
    ¶ 6 Ms. Robinson filed a motion to dismiss for failure to
state a claim under rule 12(b)(6) of the Utah Rules of Civil
Procedure. Regarding the malpractice claim, the district court
framed the question of duty and the categorical basis as “whether
a treating therapist who testifies in litigation relying on their
negligent formulation of forensic opinions, owes a duty to the
party against whom they are testifying.” Using the factors from
B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228, the district court
concluded that no duty existed for that categorical basis and
granted Ms. Robinson’s motion to dismiss the malpractice claim.
That decision was largely based upon policy considerations aimed
at protecting a witness from liability stemming from his or her
testimony. The district court also granted the motion to dismiss
Ms. Smith’s negligent infliction of emotional distress claim
because Ms. Smith was unable to demonstrate the kind of harm
required to sustain a claim for negligent infliction of emotional
distress.
    ¶ 7 Ms. Smith appeals the district court’s decision on her
malpractice claim but does not appeal the negligent infliction of
emotional distress claim. Utah Code section 78A-3-102(3)(j) gives
us jurisdiction.
                     STANDARD OF REVIEW
   ¶ 8 “The question of whether a ‘duty’ exists is a question of
law . . . .” Weber ex rel. Weber v. Springville City, 725 P.2d 1360, 1363
(Utah 1986) (citation omitted). We review questions of law “under
a correctness standard.” St. Benedict’s Dev. Co. v. St. Benedict’s
Hosp., 811 P.2d 194, 196 (Utah 1991) (citations omitted).
                             ANALYSIS
    ¶ 9 In Mower v. Baird, the companion to this case, we directly
address the question of whether a treating therapist owes a
nonpatient parent a duty when treating the parent’s child for
allegations of sexual abuse by that parent. 2018 UT 29, ¶ 114, ---
P.3d---. There, we conclude that a treating therapist “owes a duty
to a minor patient’s parents to refrain from affirmative acts that


   2 Not all of these alleged harms are compensable. See Mower v.
Baird, 2018 UT 29, ¶ 11 n.3, ---P.3d---.

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                        SMITH v. ROBINSON
                       Opinion of the Court

recklessly violate the standard of care in a manner that gives rise
to false memories or false allegations of sexual abuse committed
by the plaintiff nonpatient parent.” Id. This duty not only covers
physical or property harm but also severe emotional distress. Id.
    ¶ 10 In this case, the parties disagree about whether the
district court selected the correct categorical basis and, if not,
whether it was the result of invited error. The district court
ultimately based its holding on a categorical basis that involved
treating therapists who testify in litigation. However, Ms. Smith
“concedes that a testifying witness owes no duty to the opposing
party with respect to the testimony given in court.” (Emphasis
omitted). Additionally, Ms. Smith asserts that she “is not suing
[Ms. Robinson] for her role as a testifying witness, but rather for
her conduct in the treatment of the minor children that preceded
her testimony.” Indeed, Ms. Smith’s complaint is void of
allegations relating to Ms. Robinson’s testimony in the custody
case.
    ¶ 11 The district court was required to rule in this case
without the benefit of our opinion in Mower. In Mower, we
announce that treating therapists owe a duty to a nonpatient
parent during the therapist’s treatment of the parent’s child for
potential sexual abuse by that parent. Id. To the extent that
Ms. Smith is alleging harms that stem from Ms. Robinson’s
testimony, the duty we announce in Mower would not apply.
However, to the extent that Ms. Smith is alleging harms stemming
from Ms. Robinson’s treatment of the children, our holding in
Mower establishes a duty.3


   3  Our opinion in Mower extends the treating therapist’s duty to
not affirmatively act in a manner that recklessly causes severe
emotional distress. Mower, 2018 UT 29, ¶ 114. Although we
recognized a path other than the zone of danger for recovery of
emotional distress, we did not disturb our other negligent
infliction of emotional distress requirements. Id. ¶¶ 77, 81 n.18.
And we did not decide whether a cause of action for negligent
infliction of emotional distress is necessary to recover those
damages. Id. ¶ 113 n.21. The district court granted Ms. Robinson’s
motion to dismiss Ms. Smith’s negligent infliction of emotional
distress because Ms. Smith was unable to show the type of harm
required for a negligent infliction of emotional distress claim. We
express no opinion on whether Ms. Smith’s failure to appeal this
portion of the district court’s decision precludes her from
pursuing recovery under the limited emotional distress duty we

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                      Opinion of the Court

   ¶ 12 Therefore, we remand this case to the district court for
proceedings consistent with our opinion in Mower.




announce in Mower. See id. ¶ 114. We leave this decision to the
district court in the first instance.

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