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

                                 2014 UT 2

                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH
                        KAREENA MACGREGOR,
                        Plaintiff and Appellant,
                                       v.
  DOUGLAS WALKER, individually and in his official capacity as
Bishop of the Willow Canyon 4th Ward, Sandy Utah East Stake of
the Church of Jesus Christ of Latter-Day Saints; CORPORATION OF
 THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY
              SAINTS, a Utah corporation sole et al.;
                    Defendants and Appellees.

                             No. 20120452
                         Filed January 28, 2014

                      Third District, Salt Lake
                   The Honorable Glen K. Iwasaki
                          No. 080906065

                                 Attorneys:
           William M. Fontenot, Bountiful, for appellant
     L. Rich Humphreys, Karra J. Porter, Alexander Dushku,
            Justin W. Starr, Salt Lake City, for appellee

   JUSTICE PARRISH authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
             JUSTICE DURHAM, and JUSTICE LEE joined.


   JUSTICE PARRISH, opinion of the Court;
    ¶1     We are asked to decide whether a church’s creation of a
help line for the benefit of its clergy gives rise to a duty to parishio-
ners who counsel with clergy. Specifically, we are asked to deter-
mine whether, pursuant to section 323 of the Restatement (Second)
of Torts, the Church of Jesus Christ of Latter-day Saints (LDS Church
or Church) and its clergy voluntarily assumed a duty to aid abuse
victims by virtue of its “Help Line.” This professionally staffed Help
Line provides Church clergy who become aware of an abusive
situation with information about legal duties and counseling
options. We conclude that the Church’s creation of the Help Line
did not give rise to such a duty because, regardless of whether the
Church voluntarily undertook to render a service to abuse victims
                       MACGREGOR v. WALKER
                         Opinion of the Court

by virtue of the Help Line, a clergy member’s failure to use the Help
Line does not increase a victim’s risk of harm. Moreover, public
policy disfavors the imposition of a duty where it would discourage
organizations from providing services that may ultimately benefit
victims of abuse.
         FACTUAL AND PROCEDURAL BACKGROUND
                   I. THE CHURCH’S HELP LINE
   ¶2     In 1995, the Church established the Help Line, a 1-800
number that bishops and other Church clergy can call when they
become aware of possible abuse. The Help Line is available 24 hours
a day, 365 days a year and is staffed by legal and counseling
professionals who “provide guidance to the bishop on how to
protect the [victim] from further abuse, and how to deal with the
complex emotional, psychological, and legal issues that must be
addressed in order to protect the victim.” In some cases, attorneys
are also available to “advise bishops on legal issues to ensure
compliance with reporting statutes.”
    ¶3    The Help Line is available only to Church ecclesiastical
leaders. Help Line employees neither learn the names of potential
victims, nor do they communicate with the victims. In cases where
Church leaders use the Help Line, they still have the discretion to
proceed as they believe appropriate under the circumstances.
           II. MACGREGOR’S ALLEGATIONS AGAINST
                  THE CHURCH DEFENDANTS
       A. MacGregor’s Relationship with Her Teenage Neighbor and
                       Interactions with Clergy
     ¶4    Beginning at the age of twelve and continuing until age
fifteen, Kareena MacGregor engaged in regular sexual touching with
her neighbor Matthew, who was four years older than she.
MacGregor’s parents, Matthew’s parents, and the police each
became aware of MacGregor and Matthew’s relationship. When
MacGregor was either fourteen or fifteen, she also met and became
sexually involved with Gregory, who was seventeen at the time.1


   1
    In September 2002, at the age of fifteen, MacGregor gave birth
to Gregory’s baby in her home. MacGregor alleged that she did not
know she was pregnant until after giving birth. The baby died after
MacGregor put him in a window well. See State ex rel. K.M. for a
more thorough recitation of the facts surrounding MacGregor’s
                                                     (continued...)

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                       Opinion of the Court

    ¶5   During this time frame, MacGregor alleges that she met
and counseled with her and Matthew’s LDS bishop, Douglas
Walker, on two separate occasions.2 MacGregor allegedly told
Walker that she wanted the relationship with Matthew to stop and
that she wanted to repent. According to MacGregor, Walker told
her to pray, read her scriptures, and stop seeing Matthew.
MacGregor never informed Walker of her relationship with Gregory.
Walker was aware of the Help Line and had used it on other
occasions, but he did not call the Help Line “about any issue relating
to [MacGregor].”
 B. MacGregor’s Personal Injury Suit Against the Church Defendants
    ¶6    In April 2008, MacGregor filed a personal injury suit
against Walker, the Church (collectively the Church Defendants),
and several other defendants.3 MacGregor initially premised her
claim against the Church Defendants on the theory that Walker
owed her a duty of care based on her status as a member of his
congregation and that Walker negligently failed to report the abuse
as required by Utah Code section 62A-4a-403(3)(a) (Reporting
Statute). She also alleged that the Church was vicariously liable for
Walker’s negligent conduct under the doctrine of respondeat
superior.
    ¶7    The Church Defendants moved for summary judgment,
asserting that they owed no duty to MacGregor. Specifically, they
argued that the reporting statute imposes criminal penalties only
and does not give rise to a duty that would support a negligence
claim. The Church Defendants also argued that there is no “special
relationship” between a church and its members that would impose
on it a duty to protect its members against the criminal acts of third
parties. In response, MacGregor disclaimed any suggestion that the
Church’s duty arose by virtue of the Reporting Statute or a special
relationship between the Church and its members. Instead, she
argued that, by creating the Help Line, the Church voluntarily


   1
   (...continued)
pregnancy and the baby’s death. 2007 UT 93, 173 P.3d 1279.
   2
    In their motion for summary judgment, the Church Defendants
denied that Walker had any knowledge of the abuse, but they
assumed knowledge solely for summary judgment purposes.
   3
     MacGregor also named Gregory, Matthew, Matthew’s parents
and brother, Deseret Memorial Inc., and Holbrook Funeral Chapel
Inc. as defendants in the suit.

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                       MACGREGOR v. WALKER
                        Opinion of the Court

undertook a duty to help MacGregor and all other Church members
who are victims of child abuse. She further alleged that Walker
breached that duty by failing to call the Help Line regarding her
case.
    ¶8    Because MacGregor did not raise this voluntary undertak-
ing theory in her complaint, the district court found the claim was
not properly pled. But it nevertheless chose to address the claim “in
an effort to decide the matter on its merits rather than a technical-
ity.” After considering supplemental briefing regarding the Help
Line, the district court granted summary judgment in favor of the
Church Defendants. In granting summary judgment, the district
court did not rely on the voluntary undertaking theory; instead it
reasoned that the Church Defendants were immune from suit under
the First Amendment in the U.S. Constitution.
    ¶9    MacGregor appeals the dismissal of her claims against the
Church Defendants. She contends that the Church voluntarily
assumed a duty by virtue of the Help Line and that the district court
erred in concluding that the Church was immune from suit under
the First Amendment. We do not reach the issue of First Amend-
ment immunity because we find that even if the Church Defendants
voluntarily undertook to render a service to MacGregor by virtue of
the Help Line, the existence of the Help Line did not increase
MacGregor’s risk of harm. We have jurisdiction pursuant to Utah
Code section 78A-3-102(3)(j).
                     STANDARD OF REVIEW
    ¶10 “The determination of whether a legal duty exists falls to
the court. It is purely a legal question” and is therefore reviewed
de novo. Yazd v. Woodside Homes Corp., 2006 UT 47, ¶ 14, 143 P.3d
283.
                             ANALYSIS
     ¶11 An essential element of every negligence action is the
existence of a duty of care owed by the defendant to the plaintiff.4
Jeffs ex rel. B.R. v. West, 2012 UT 11, ¶ 5, 275 P.3d 228; see also Young


   4
     In addition to establishing a duty, a plaintiff must also establish
“(2) that the defendant breached that duty, (3) that the breach of
duty was the proximate cause of the plaintiff’s injury, and (4) that
the plaintiff in fact suffered injuries or damages.” Torrie v. Weber
Cnty., 2013 UT 48, ¶ 9, 309 P.3d 216 (internal quotation marks
omitted).

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                        Opinion of the Court

v. Salt Lake City Sch. Dist., 2002 UT 64, ¶ 12, 52 P.3d 1230. (“Absent
a showing that the defendant owed any duty, the plaintiff’s claim
has no merit . . . .”). A duty exists where defendant has “an
obligation, to which the law will give recognition and effect, to
conform to a particular standard of conduct toward another.” AMS
Salt Indus., Inc. v. Magnesium Corp. of Am., 942 P.2d 315, 321 (Utah
1997) (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE
LAW OF TORTS § 53 (5th ed. 1984)).
    ¶12 In most situations, tort law imposes a general duty to
exercise reasonable care to minimize the risk of harm from one’s
actions. DAN B. DOBBS, THE LAW OF TORTS, § 251 (2d ed. 2011). But
a person ordinarily has no affirmative duty to act to “protect another
from harm,” unless an exception applies. Gilger v. Hernandez, 2000
UT 23, ¶ 15, 997 P.2d 305. Here, MacGregor argues that the Church
Defendants owed her an affirmative duty to act under section 323 of
the Restatement (Second) of Torts. Section 323 provides:
       One who undertakes, gratuitously or for consider-
       ation, to render services to another which he should
       recognize as necessary for the protection of the other’s
       person or things, is subject to liability to the other for
       physical harm resulting from his failure to exercise
       reasonable care to perform his undertaking, if (a) his
       failure to exercise such care increases the risk of such
       harm, or (b) the harm is suffered because of the other’s
       reliance upon the undertaking.
    ¶13 We adopted section 323 in DCR Inc. v. Peak Alarm Co., 663
P.2d 433, 436 (Utah 1983), but we later explained that “the nature of
this rule requires the Court to narrowly construe the scope of any
assumed duty.” Weber ex rel. Weber v. Springville City, 725 P.2d 1360,
1364 (Utah 1986). Therefore, to establish a negligence claim based on
a theory of voluntary undertaking under section 323, MacGregor
must show (1) that the Church, by means of the Help Line, under-
took to render a service to her; and (2) that the Church Defendants
failed to exercise reasonable care in their administration of the Help
Line, thereby either increasing MacGregor’s risk of harm or causing
MacGregor’s harm through her reliance on the Help Line. We do
not reach the merits of the parties’ respective arguments under the
first prong of section 323 because we conclude that MacGregor has
not met her burden under the second prong. We also conclude that
public policy does not support the imposition of a duty in this case.
We therefore affirm the district court’s order granting the Church
Defendants’ motion for summary judgment.

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                       MACGREGOR v. WALKER
                         Opinion of the Court

 I. REGARDLESS OF WHETHER THE CHURCH UNDERTOOK
    TO RENDER A SERVICE TO MACGREGOR, ANY SUCH
     UNDERTAKING DID NOT INCREASE MACGREGOR’S
                   RISK OF HARM
    ¶14 MacGregor argues that, by establishing the Help Line, “the
Church has undertaken [a] duty categorically for its child members,”
including herself as a victim of abuse. The Church Defendants
disagree, arguing that the Help Line exists solely to assist Church
clergy. Specifically, they argue that the Help Line “renders internal
Church services only and thus provides only indirect benefit to
victims.”
    ¶ 15 In support of their position, the Church Defendants rely on
a line of cases that interpret section 323 to apply “only when the
defendant undertakes to provide a service directly to the person
injured.” Russell v. United States, 631 F. Supp. 1, 2 (D. Utah 1983)
(emphasis added); see also Thorson v. Mandell, 525 N.E.2d 375, 378
(Mass. 1988) (“The creation of a policy against gymnastics in the
auditorium was not an undertaking to render services for the
protection of its users.”); Charleston v. Larson, 696 N.E.2d 793, 801 (Ill.
App. Ct. 1998) (“[P]laintiff’s voluntary undertaking theory . . . fails
at the outset because plaintiff never alleged that defendant under-
took services for plaintiff . . . .”) (emphasis in original). The Church
Defendants argue that the Help Line was created for the direct
benefit of Church clergy only and that abuse victims are merely
potential indirect beneficiaries. They therefore assert that the Help
Line does not give rise to a duty to mitigate any harm suffered by
abuse victims.
    ¶ 16 There is, however, a second line of cases that provides for
a more generous reading of section 323. In Wark v. United States, for
example, the Tenth Circuit held that for section 323 to apply, a
plaintiff must first show that the defendant “through its affirmative
acts or through a promise to act, undertook to render a service that
was reasonably calculated to prevent the type of harm that befell the
plaintiff.” 269 F.3d 1185, 1189 (10th Cir. 2001) (emphasis added); see
also Jefferson Cnty. Sch. Dist. R-1 v. Justus ex rel. Justus, 725 P.2d 767,
771 (Colo. 1986) (en banc) (same). Under this interpretation of
section 323, it could be argued that the Church’s creation of the Help
Line was reasonably calculated to prevent the type of harm experi-
enced by abuse victims like MacGregor.
    ¶ 17 The plain language of section 323 could arguably sustain
a third interpretation that neither party has argued. Section 323
states that a duty arises only when one undertakes “to render

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services to another which he should recognize as necessary for the
protection of the other’s person or things.” (Emphasis added). Under
this provision, a duty would arguably arise only if MacGregor could
show that the Church Defendants should have recognized that
calling the Help Line was necessary for her protection.
    ¶18 But we need not consider these alternative interpretations
of section 323 because, regardless of whether the Church Defen-
dants undertook to render a service to MacGregor, MacGregor has
not met her burden of showing that this alleged undertaking
increased her risk of harm.
    ¶19 Before a duty arises under section 323, a plaintiff must
establish not only the existence of a voluntary undertaking, but also
that (a) the undertaking increased plaintiff’s risk of harm, or (b) the
harm suffered by the plaintiff resulted from plaintiff’s reliance on the
undertaking. MacGregor does not claim that she relied on the Help
Line. We therefore consider whether the Church’s creation of the
Help Line increased her risk of harm.
     ¶20 In Alder v. Bayer Corp. AGFA Division, we held that
subsection (a) of section 323 “requires some change in conditions
that increases the risk of harm to the plaintiff over the level that
existed before the defendant became involved.” 2002 UT 115, ¶ 30,
61 P.3d 1068 (internal quotation marks omitted). A mere failure “to
facilitate the prevention of harm that occurred through other causes”
is insufficient. Id. (internal quotation marks omitted).
    ¶21 Fishbaugh v. Utah Power & Light, a Division of Pacificorp
illustrates the application of subsection (a). 969 P.2d 403 (Utah 1998).
In Fishbaugh, a pedestrian was injured when he was hit by a car on
an unlighted street. Id. at 404. The city had installed street lights,
but the lights malfunctioned and were not lit at the time of the
accident. Id. The plaintiff acknowledged that the city had no duty
to provide lighting but argued that, having chosen to do so, the city
had a duty to maintain the lights in working order. Id. at 406.
    ¶22 We rejected this argument, reasoning that “liability
under . . . section [323] is generally limited to instances where the
failure to exercise reasonable care in the undertaking has placed the
injured party in a worse position than he would have been in had
the undertaking not occurred.” Id. at 407. Because the city’s
decision to install lighting made the plaintiff no worse off “than if
the street lights had never been installed,” the city had no duty “to
maintain the streetlights simply because it installed them.” Id.



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                       MACGREGOR v. WALKER
                        Opinion of the Court

    ¶23 This interpretation of section 323 is consistent with that of
other courts. For example, in Jain v. State, the Iowa Supreme Court
concluded that section 323(a) “applies only when the defendant’s
actions increased the risk of harm to plaintiff relative to the risk that
would have existed had the defendant never provided the services
initially.” 617 N.W.2d 293, 299 (Iowa 2000) (emphasis added)
(internal quotation marks omitted). In other words, “the defendant’s
negligent performance must somehow put the plaintiff in a worse
situation than if the defendant had never begun performance.” Id.
(internal quotation marks omitted).
    ¶24 MacGregor’s claim does not satisfy subsection (a) because
neither the creation of the Help Line nor Walker’s alleged failure to
use it increased the risk of harm to MacGregor. In other words,
Walker’s alleged negligent performance did not put MacGregor in
a worse position than she would have been in had the Church never
created the Help Line.
   ¶25 MacGregor argues that “the psychological impact resulting
from Walker’s inaction ‘launched a force or instrument of harm’ and
was not merely a ‘failure to facilitate the prevention of harm that
occurred through other causes’” (quoting Alder, 2002 UT 115, ¶ 30).
But section 323, by its very terms, requires “physical harm” from the
negligently rendered services. Psychological or emotional harm is
insufficient.
    ¶26 We hold that even if the Church had undertaken to protect
MacGregor and other potential abuse victims by virtue of the Help
Line, MacGregor’s risk of harm was not increased relative to the risk
she would have faced had the Church never created the Help Line
in the first place. Thus, MacGregor’s section 323 claim fails.
   II. IMPOSING A DUTY IN THIS CASE IS CONTRARY TO
                    PUBLIC POLICY5
   ¶27 MacGregor also argues that general notions of public
policy support the imposition of a duty on the Church Defendants.

   5
      A court may look to general policy considerations when
determining the existence of a duty. AMS Salt Indus. Inc. v. Magne-
sium Corp. of Am., 942 P.2d 315, 321 (Utah 1997). As Dean Prosser
famously noted, “duty is not sacrosanct in itself, but is only an
expression of the sum total of those considerations of policy which
lead the law to say that the plaintiff is entitled to protection.” W.
PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 53
(5th ed. 1984)).

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Specifically, she reasons that “public policy does not favor holding
persons or institutions harmless for the kind of claim that
[MacGregor] is bringing against Walker and the Church.” We
disagree. Contrary to MacGregor’s argument, public policy would
actually disfavor imposing a duty in cases such as this for fear that
imposition of a duty would chill efforts to prevent abuse and assist
victims. Creation of programs and resources that have the potential
to benefit victims of abuse should be encouraged, not discouraged
by the threat of potential liability. See, e.g., Pytlewski v. United States,
991 F. Supp. 1043, 1050 (N.D. Ill. 1998) (“A finding that such a
manual or policy in and of itself created a legal duty on the part of
the business . . . would discourage businesses from producing or
formulating such guidelines, which would be detrimental to the
general public’s best interest.”).
    ¶28 We rejected the assertion of a duty in AMS Salt Industries,
Inc. v. Magnesium Corp. of America for similar policy reasons. 942
P.2d 315, 324 (Utah 1997). In that case, Magnesium Corp. built a
dike to protect its own land from flooding. Id. at 317. The dike also
benefitted other owners, until it failed. Id. at 317–18. Flood victims
filed suit against Magnesium Corp., alleging it had a duty to protect
neighboring property from flooding. Id. We held that imposing a
duty on Magnesium Corp. as to other property owners would be
“absurd” because it would threaten landowners with “potential
liability to every owner of property for miles beyond.” Id. at 324. As
a result, “no one would ever dare to take measures to protect against
flooding.” Id.
    ¶29 The Church, through its Help Line, provides a service
intended to assist its ecclesiastical leaders in counseling abuse
victims. It is certainly not the only organization with internal
policies, procedures, training, and resources designed to reduce the
risk of abuse and assist victims. To hold that the creation of such
policies and programs gives rise to a duty under tort law would
discourage organizations from creating these beneficial programs.
     ¶30 Moreover, we must be even more sensitive when assessing
a religious organization’s internal policies. “The delicate balance
between the freedom to exercise religion and the demands placed on
all persons (clerical and others) by civil law requires us to proceed
cautiously in a controversy where we are asked to hold that a
religious institution’s reliance on its own written policy . . . gives rise
to liability under civil law.” Petrell v. Shaw, 902 N.E.2d 401, 409–10
(Mass. 2009). Because imposing a duty on the Church in this case
would be contrary to public policy, we decline to do so.

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                     MACGREGOR v. WALKER
                       Opinion of the Court

                         CONCLUSION
    ¶31 We affirm the district court’s entry of summary judgment
in favor of the Church Defendants. The Church’s creation of the
Help Line did not give rise to a duty to MacGregor because,
regardless of whether the Church undertook to render a service to
MacGregor by virtue of the Help Line, the existence of the Help Line
did not increase her risk of harm. The risk MacGregor faced was the
same as that she would have faced had the Church never created the
Help Line. And the imposition of a duty based solely on the creation
of the Help Line would be contrary to public policy because it would
discourage organizations from providing such services.




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