This opinion is subject to revision before final

publication in the Pacific Reporter

2014 UT 2

322 P.3d 712

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 parishioners who counsel with clergy. Specifically, we are asked to determine whether, pursuant to section 323 of the Restatement (Second)

of Torts, the Church of Jesus Christ of Latter-day Saints (LDSChurch

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
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Opinion of the Court

did not give rise to such a duty because, regardless of whether the

Church voluntarily undertook to render a service to abuse victims

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 sexualtouching 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

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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 neverinformedWalker ofherrelationship 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

1

(...continued)

MacGregor put him in a window well. See State ex rel. K.M. for a

more thorough recitation of the facts surrounding MacGregor’s

pregnancy and the baby’s death. 2007 UT 93, 173 P.3d 1279. 

2

In their motion for summary judgment, Walker and the Church

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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Opinion of the Court

relationship between the Church and its members. Instead, she

argued that, by creating the Help Line, the Church voluntarily

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 undertaking 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 technicality.” 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 of 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 Amendment 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

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

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Jeffs ex rel. B.R. v. West, 2012 UT 11, ¶ 5, 275 P.3d 228; see also Young

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.PAGEKEETONETAL.,PROSSERANDKEETONONTHE

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 consideration, to render services to another which he should

recognize as necessary forthe 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, undertook 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

4

(...continued)

Cnty., 2013 UT 48, ¶ 9, 309 P.3d 216 (internal quotation marks

omitted).

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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.

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

Churchhas undertaken [a] duty categorically forits 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 undertook 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

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section 323, it could be argued that the Church’s creation of the Help

Line was reasonably calculated to prevent the type of harm experienced 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

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 Defendants 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 resultedfromplaintiff’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 theprevention 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

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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.

¶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). Inother words, “thedefendant’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 “thepsychological impactresulting

from Walker’s inaction ‘launched a force orinstrument 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

5 A court may look to general policy considerations when

determining the existence of a duty. AMS Salt Indus. Inc. v. Magnesium 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

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Opinion of the Court

¶27 MacGregor also argues that general notions of public

policy support the imposition of a duty on the Church Defendants.

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.

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expression of the sum total of those considerations of policy which

lead the law to say that the plaintiff is entitled to protection.” W.

PAGEKEETONETAL.,PROSSERANDKEETONONTHELAWOFTORTS § 53

(5th ed. 1984).

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Opinion of the Court

¶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.

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 herrisk of harm. The risk MacGregorfaced 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.

10