This opinion is subject to revision before final

publication in the Pacific Reporter

2018 UT 29

IN THE

SUPREME COURT OF THE STATE OF UTAH

THOMAS E. MOWER,

Appellant,

v.

NANCY BAIRD

and THE CHILDREN’S CENTER,

Appellees.

No. 20160149

Filed July 5, 2018

On Direct Appeal

Third District, Salt Lake

The Honorable Robert P. Faust

No. 150905061

Attorneys:

Douglas B. Thayer, Mark R. Nelson, Lehi, David L. Arrington, Salt 

Lake City, for appellant

Gregory J. Sanders, Sarah C. Vaughn, Salt Lake City, for appellees

Troy L. Booher, Julie J. Nelson, John J. Hurst, Salt Lake City, for 

amici National Association of Social Workers; National 

Association of Social Workers, Utah Chapter; Utah Psychological 

Association; Utah Medical Association; Utah Psychiatric 

Association; and Utah Academy of Child and Adolescent 

Psychiatry

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 L. PETTIT sat.
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Opinion of the Court

2

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 The law isn’t good-for-nothing when a therapist causes a 

child to falsely accuse a parent of sexual abuse.

¶ 2 In March 2011, Thomas Mower’s now ex-wife, Lidia 

Mower, began taking their four-year-old daughter, T.M., to The 

Children’s Center for therapy. The Children’s Center provided 

services to T.M. through Nancy Baird. During Ms. Baird’s 

treatment of T.M., she allegedly engaged in practices that were 

both contrary to commonly-accepted treatment protocol and 

expressly rejected by the profession. As a result of Ms. Baird’s 

treatment, false allegations of sexual abuse were levied against 

Mr. Mower.

¶ 3 Mr. Mower sued Ms. Baird and The Children’s Center

(collectively, the defendants) for the harm he suffered as a result 

of T.M.’s treatment. The defendants moved to dismiss these 

claims under rule 12(b)(6) of the Utah Rules of Civil Procedure. 

The district court granted the defendants’ motion on the grounds 

that therapists don’t have “a duty of care to potential sexual 

abusers when treating the alleged victim.”

¶ 4 Underlying the district court’s decision are two issues of 

first impression: (1) whether a treating therapist working with a 

minor child owes a traditional duty of reasonable care to a 

nonpatient parent to refrain from giving rise to false memories or

false allegations of sexual abuse by that parent; and, if so,

(2) whether we should extend that duty to exercising reasonable 

care when placing a nonpatient parent at risk of severe emotional 

distress. Under the framework for analyzing whether a traditional 

duty exists, established by B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 

P.3d 228, we determine that a duty to a nonpatient parent exists

but limit that duty to an affirmative act: the affirmative act of 

recklessly giving rise to false memories or false allegations of 

childhood sexual abuse by that parent. Similarly, we conclude 

that a treating therapist owes a duty to refrain from affirmatively 

causing the nonpatient parent severe emotional distress by 
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Opinion of the Court

3

recklessly giving rise to false memories or false allegations of 

childhood sexual abuse by that parent. Accordingly, we reverse 

the district court’s dismissal of Mr. Mower’s claims and remand 

for further proceedings.1

BACKGROUND 

¶ 5 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 the Dep’t of Nat. Res., 2010 UT 14, ¶ 10, 228 P.3d 747.

¶ 6 While married, Ms. and Mr. Mower had one daughter 

together, T.M. In March 2011, Ms. Mower began bringing T.M., 

then four-and-a-half years old, to The Children’s Center to see 

Ms. Baird, a Licensed Clinical Social Worker. She did this without 

Mr. Mower’s knowledge or consent.

¶ 7 By the end of T.M.’s initial intake assessment, Ms. Baird 

allegedly assumed, based on information provided by Ms. Mower 

and Ms. Baird’s observation of T.M., that T.M. had been sexually 

abused by Mr. Mower. Because Ms. Baird assumed that sexual 

abuse had likely occurred, she called the Division of Child and 

Family Services (DCFS) to make a report. DCFS told Ms. Baird 

that the information didn’t presently warrant a report but asked 

her to continue to gather information.

¶ 8 According to established guidelines regarding treatment 

for allegations of potential sexual abuse,2 Ms. Baird should have 

ended all therapy and allowed a forensic interviewer (a role for 

 

1 We don’t, however, reach what duty, if any, The Children’s 

Center owes to Mr. Mower in his medical malpractice claim—an 

issue not truly before us. The district court dismissed all of 

Mr. Mower’s claims on the grounds that a therapist owes no duty 

to an alleged sex abuser. We reverse this decision because we 

conclude that a duty does exist. On remand, the district court will 

have to determine whether The Children’s Center owes a duty to 

Mr. Mower in this particular instance.

2 Mr. Mower hasn’t alleged the specific guidelines or how 

they’re established in his complaint. We draw the inference that 

he’ll be able to do so before trial.
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4

which Ms. Baird wasn’t trained) to take over to determine if 

sexual abuse had occurred. Ms. Baird, however, purportedly 

decided to act in the capacity of a combined therapist and 

investigator and continued with her therapy/interview sessions 

until October 2012. Ms. Baird allegedly conducted these sessions 

with methods that were tainted by confirmatory bias, diagnostic 

suspicion bias, and socially desired responses, and were therefore 

unreliable. She repeatedly asked T.M. questions “designed to 

corroborate claims of sexual abuse” and “that further reinforced 

the tainting of TM’s memory.” This type of questioning creates a 

high risk that a child will “confuse what she has heard through 

repeated questioning as something she actually experienced.” 

Compounding this problem, Ms. Baird failed to electronically 

record the initial sessions or take adequate notes of the questions 

and answers given, which might have made it possible to later 

determine the accuracy of T.M.’s statements.

¶ 9 During Ms. Baird’s treatment of T.M., The Children’s 

Center purportedly provided little to no training, supervision, or 

oversight. Ms. Baird had “no knowledge of or training in false 

memory, confirmatory bias, diagnostic suspicion bias, or social 

desirability responses.” Ms. Baird disregarded standardized test 

results when diagnosing T.M., kept insufficient records of the 

sessions, repeatedly questioned T.M. about the same events, and

served an inappropriate dual role: therapist for T.M. and 

investigator for DCFS.

¶ 10 Mr. Mower first found out about T.M.’s therapy from 

papers Ms. Mower filed in their divorce proceedings in summer 

2012. Also in 2012, based at least in part upon Ms. Baird’s 

interviews with T.M., DCFS made a “supported” finding of sexual

abuse against Mr. Mower. Mr. Mower challenged that finding in 

juvenile court, resulting in DCFS changing the finding from 

“supported” to “unsupported.” The juvenile court then found the 

allegations “unsubstantiated.”

¶ 11 Ms. Baird’s treatment allegedly damaged the healthy 

parent-child relationship Mr. Mower and T.M. once enjoyed. 

Additionally, the false allegations of sexual abuse have harmed 

and stigmatized Mr. Mower’s reputation. Mr. Mower has also 
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Opinion of the Court

5

allegedly suffered significant emotional turmoil and pain as a 

result of the defendants’ negligence.3

¶ 12 As a consequence, Mr. Mower filed this lawsuit against

the defendants for the harm he allegedly suffered as a result of 

T.M.’s treatment, asserting causes of action for (1) medical 

malpractice/negligence against The Children’s Center, (2) medical 

malpractice/negligence against Ms. Baird, and (3) respondeat 

superior against The Children’s Center.4 The defendants filed a 

motion to dismiss these claims under rule 12(b)(6) of the Utah 

Rules of Civil Procedure. The district court granted the 

defendants’ motion, holding that therapists don’t have a duty “to 

potential sexual abusers when treating the alleged victim.”

¶ 13 Mr. Mower appeals this decision. Utah Code section 

78A-3-102(3)(j) gives us jurisdiction.

STANDARD OF REVIEW

¶ 14 “[W]hether 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

¶ 15 The district court dismissed this case on the grounds that 

a treating therapist owes no duty of care “to potential sexual 

abusers when treating the alleged victim.” If such a duty does 

exist, the parties to this action disagree about whether it includes 

a duty to not affirmatively cause severe emotional harm. We must 

therefore determine whether Ms. Baird did in fact owe Mr. Mower 

a duty and, if so, whether it extends to emotional harm. We begin 

by determining that Ms. Baird owes Mr. Mower a limited 

traditional duty. Next, to help contextualize the disagreement 

between the parties, we discuss some general principles of 

negligence for legal context and the development of negligent 

 

3 Not all of these alleged harms are compensable. See infra

¶¶ 46, 100 n.20.

4 T.M. isn’t a party to this action. Mr. Mower’s claims aren’t 

derivative claims based on the breach of any duty owed to T.M.

but his own claims for his own injuries.
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Opinion of the Court

6

infliction of emotional distress law in Utah and around the 

country. Then we consider whether we should adopt a limited 

duty similar to that provided in section 47(b) of the Restatement 

(Third) of Torts and, if so, what the appropriate test would be.

RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND 

EMOTIONAL HARM § 47(b) (AM. LAW INST. 2012). And, after 

concluding that a limited duty test should exist, we go on to 

determine whether a limited emotional distress duty also exists.

I. TREATING THERAPISTS OWE A TRADITIONAL DUTY TO 

NOT AFFIRMATIVELY ACT IN A MANNER THAT 

RECKLESSLY CAUSES PHYSICAL HARM TO NONPATIENT 

PARENTS OR THEIR PROPERTY IN THE THERAPIST’S 

TREATMENT OF THE PARENT’S MINOR CHILD FOR 

ALLEGED SEXUAL ABUSE

¶ 16 The threshold question in a negligence claim is whether 

the defendant owed a duty to the plaintiff. See B.R. ex rel. Jeffs v. 

West, 2012 UT 11, ¶ 5 n.2, 275 P.3d 228. “An actor ordinarily has a 

duty to exercise reasonable care when the actor’s conduct creates 

a risk of physical harm.” Id. ¶ 21 n.11 (quoting RESTATEMENT 

(THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM

§ 7(a) (AM. LAW INST. 2012)). A duty to act with reasonable care

“must be determined as a matter of law and on a categorical basis 

for a given class of tort claims.” Id. ¶ 23 (citations omitted). “We 

therefore analyze each pertinent factor in the duty analysis ‘at a 

broad, categorical level for a class of defendants’ without focusing 

on the particular circumstances of a given case.” Scott v. Universal 

Sales, Inc., 2015 UT 64, ¶ 33, 356 P.3d 1172 (quoting Jeffs, 2012 UT 

11, ¶ 23).

¶ 17 In Jeffs, we established a five-factor test for determining 

“whether a defendant owes a duty to a plaintiff”: 

(1) whether the defendant’s allegedly tortious 

conduct consists of an affirmative act or merely an 

omission; (2) the legal relationship of the parties; 

(3) the foreseeability or likelihood of injury; 

(4) “public policy as to which party can best bear the 

loss occasioned by the injury”; and (5) “other 

general policy considerations.”

Jeffs, 2012 UT 11, ¶ 5 (citations omitted). “Not every factor is 

created equal, however. . . . [S]ome factors are featured heavily in 

certain types of cases, while other factors play a less important, or 
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Opinion of the Court

7

different, role.” Id. The first two factors are considered “plus” 

factors used to determine whether a duty would normally exist. 

See id. The final three factors are considered “minus” factors “used 

to eliminate a duty that would otherwise exist.” Id.

¶ 18 In this case, we’re required to determine whether a 

treating therapist owes a duty of care to a nonpatient parent in the 

treatment of the parent’s minor child for potential sexual abuse 

alleged against that parent.5 Applying the Jeffs factors, we find 

that a treating therapist does owe such a duty, albeit a limited 

one, to nonpatient parents.

A. The Jeffs “Plus” Factors Favor Creating a Duty

¶ 19 When determining whether a duty exists under the Jeffs

factors, the two “plus” factors “are interrelated”. Id. ¶ 7. The first 

factor stems from “[t]he long-recognized distinction between acts 

and omissions—or misfeasance and nonfeasance.” Id. “Acts of 

misfeasance, or active misconduct working positive injury to 

others, typically carry a duty of care.” Id. (citation omitted) 

(internal quotation marks omitted). Conversely, “[n]onfeasance—

passive inaction, a failure to take positive steps to benefit others, 

or to protect them from harm not created by any wrongful act of 

the defendant”—only gives rise to a duty when a special legal 

relationship exists. Id. (citation omitted) (internal quotation marks 

omitted).

¶ 20 In cases of misfeasance, the “plus” factor analysis almost 

always rests on the first factor—the affirmative misconduct 

creates a duty of care and a special legal relationship isn’t 

 

5 Our analysis today only applies where a parent is suing the 

therapist for negligence in the treatment of the parent’s minor 

child. We recognize that the factors we discuss in Parts I and IV 

might weigh differently when the patient is an adult or the 

alleged abuser is an individual other than the child’s parent. 

Because these issues aren’t before us, we don’t consider them 

today. Cf. Roberts v. Salmi, 866 N.W.2d 460, 469 n.5 (Mich. Ct. App. 

2014) (leaving the determination of whether a therapist owes a 

duty “to other persons who might foreseeably be harmed by a 

patient’s false memory of sexual abuse, such as a pastor or 

teacher” to future courts).
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required.6 See id. ¶¶ 6–7, 10. If, however, a duty isn’t established 

under the first factor, as in cases of nonfeasance, the second factor 

can be “used to impose a duty where one would otherwise not 

exist.” Id. ¶ 5.

¶ 21 By providing therapy to a minor child, a treating 

therapist may engage in “active misconduct” if he or she “uses

inappropriate treatment techniques or inappropriately applies

otherwise proper techniques.” Roberts v. Salmi, 866 N.W.2d 460, 

474 (Mich. Ct. App. 2014) [hereinafter Roberts I];7 cf. Scott, 2015 UT 

64, ¶ 36 (“By placing inmates in the community, the County 

engaged in ‘active misconduct’ if its screening procedures were 

inadequate to discover obvious dangers work-release participants 

might pose to the public.”). We’re not asking whether a treating 

therapist “has a duty to ensure that a patient’s allegations are true 

before reporting them or to otherwise protect a patient’s parents 

from potentially false allegations of sexual abuse.” Roberts I, 866 

N.W.2d at 470. Rather, it’s a question of misfeasance—such as 

“the negligent use of therapeutic techniques on a patient that 

actually cause the patient to have a false memory of childhood 

sexual abuse.” Id. (citations omitted). Thus, this isn’t a case of 

passive inaction that results in an injury to another; this conduct 

involves an affirmative act that establishes that a duty would 

normally exist.

 

6 This isn’t to say, however, that a special legal relationship 

won’t strengthen the “plus” factors to establish a duty in the face 

of strong “minus” factors. But Mr. Mower hasn’t argued that a 

special legal relationship exists here, and thus we don’t consider 

this factor in our analysis.

7 The Michigan Supreme Court originally granted leave to 

appeal this decision to “address whether a mental health 

professional has a duty of care to third parties who might 

foreseeably be harmed by the mental health professional’s use of 

techniques that cause a patient to have false memories of sexual 

abuse.” Roberts v. Salmi, 868 N.W.2d 911, 911 (Mich. 2015) (Mem), 

vacated, 877 N.W.2d 903 (Mich. 2016) (Mem). However, after 

receiving briefing and hearing oral arguments, the Michigan 

Supreme Court vacated the leave to appeal “because [they] [we]re 

no longer persuaded that the questions presented should be 

reviewed by [the Supreme] Court.” Roberts, 877 N.W.2d at 903–04.
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¶ 22 For this reason, a special legal relationship need not exist 

for a treating therapist to owe a duty to a nonpatient parent; the 

treating therapist’s affirmative acts are sufficient. But, as we 

explain below, while the “minus” factors don’t favor entirely 

eliminating this duty to exercise reasonable care when 

undertaking the affirmative act of providing therapy, they do 

warrant limiting this duty to refraining from recklessly giving rise 

to false memories or allegations of sexual abuse.

B. The Jeffs “Minus” Factors Weigh in Favor of Creating a Limited 

Duty

¶ 23 The defendants and their amici ask us to conclude—

based mainly on policy considerations—that a treating therapist 

doesn’t owe a duty to anyone other than his or her patient. We 

find no basis for categorically excluding all treating therapists 

from liability for carelessly providing therapy to a minor child in a 

manner that affirmatively harms the nonpatient parent. Instead, 

we hold that such a duty exists, but policy considerations advise 

limiting the duty to a recklessness standard.

1. Foreseeability

¶ 24 The foreseeability analysis for duty is distinct from that 

for breach or proximate cause. Jeffs, 2012 UT 11, ¶ 24. 

“[F]oreseeability in [a] duty analysis is evaluated at a broad, 

categorical level.” Id. ¶ 25. This analysis focuses on “‘the general 

relationship between the alleged tortfeasor and the victim’ and 

‘the general foreseeability’ of harm” rather than “‘the specifics of 

the alleged tortious conduct’ such as ‘the specific mechanism of 

the harm.’” Id. (quoting Normandeau v. Hanson Equip., Inc., 2009 

UT 44, ¶ 20, 215 P.3d 152).

¶ 25 Thus, “[t]he appropriate foreseeability question for [a]

duty analysis is whether a category of cases includes individual 

cases in which the likelihood of some type of harm is sufficiently 

high that a reasonable person could anticipate a general risk of 

injury to others.” Id. ¶ 27.8 Here, the relevant category of cases 

 

8 The defendants repeatedly argue that there is no 

foreseeability, and thus there should be no duty, because “[i]t is 

undisputed that [Mr.] Mower was not placed in danger of bodily 

harm,” and there is “a general rule that negligently-caused pure 

emotional harm is not recoverable even when it is foreseeable.” 
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includes treating therapists who carelessly provide therapy to a 

minor child patient for potential sex abuse in a manner that 

injures the nonpatient parent through false allegations or 

memories of sexual abuse. “And the foreseeability question is 

whether there are circumstances within that category in which 

[treating therapists] could foresee injury.” Id. We conclude there 

is.

¶ 26 There are undoubtedly circumstances within this 

category which present highly foreseeable risks, such as a treating 

therapist using rejected therapeutic methods that create a 

significant likelihood of implanting false memories of abuse into a 

minor child’s mind or convincing a child to levy false accusations 

of abuse. “It is indisputable that being labeled a child abuser . . . 

often results in grave physical, emotional, professional, and 

personal ramifications.” Hungerford v. Jones, 722 A.2d 478, 480 

(N.H. 1998) (emphasis added) (citation omitted) (internal 

quotation marks omitted). And it’s certainly reasonably 

foreseeable that a parent, upon learning of allegations of sexual 

abuse committed against his or her child by another person, might 

become violent and attack the accused or the accused’s property. 

Cf. United States v. Kupfer, 68 F. App’x 927, 930 (10th Cir. 2003) (the 

defendant shot a man that “had allegedly sexually assaulted [the] 

 

(Quoting RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL 

AND EMOTIONAL HARM § 47 cmt. i). This argument fundamentally 

misconstrues the appropriate foreseeability analysis for duty—it 

is not whether the specific injury a plaintiff suffered was 

foreseeable or whether that injury would be a compensable harm. 

The defendants’ argument better belongs in the question of breach 

or damages. See Jeffs, 2012 UT 11, ¶ 24.

Our case law does generally require a plaintiff to show that he 

or she was in the zone of physical danger to recover for negligent 

infliction of emotional distress cases. See infra ¶ 59. And it may be 

true that if the only harm that is foreseeable from a defendant’s 

negligence—correctly analyzed on the categorical level—is 

emotional harm, we might conclude that the foreseeability factor 

in the Jeffs test weighs against finding a duty. But the 

foreseeability question in the duty analysis cannot focus on the 

harm allegedly suffered by the plaintiff in the case. Instead, it 

must focus on the category at issue as a whole.
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defendant’s sister”); United States v. Lofton, 776 F.2d 918, 919 (10th 

Cir. 1985) (the defendant shot her husband while arguing about 

allegations that he had sexually abused her daughter).9 Such a 

reaction in this circumstance is even more foreseeable given the 

importance of the parent-child relationship and the emotions 

involved. Cf. In re K.S., 737 P.2d 170, 172 (Utah 1987) (“The 

parent-child relationship is constitutionally protected, and 

termination of that relationship is a drastic measure . . . .”

(citations omitted)); In re J.P., 648 P.2d 1364, 1373 (Utah 1982) 

(“[T]he most universal relation in nature . . . [is] that between 

parent and child.” (second alteration in original) (citation 

omitted)); In re P.L.L., 597 P.2d 886, 889 (Utah 1979) (recognizing 

“our general reluctance to sever the natural parent-child 

relationship”).10

¶ 27 Because this category includes circumstances where a 

risk of physical injury to nonpatient parents or their property is 

reasonably foreseeable, the foreseeability factor doesn’t weigh 

against imposing a duty on treating therapists to conduct a minor 

child’s therapy in a manner that “refrain[s] from affirmatively 

causing injury to nonpatient[]” parents. Jeffs, 2012 UT 11, ¶ 28.

2. Who Best Bears the Loss

¶ 28 The next factor requires determining which party is in 

the best “position to bear the loss occasioned by the injury.” Id.

¶ 29 (citation omitted) (internal quotation marks omitted). “The 

parties’ relative ability to ‘bear the loss’ has little or nothing to do 

with the depth of their pockets.” Id. Instead, the determination is 

based on

 

9 We recognize that the foreseeability of these types of injuries 

may be speculative, but we find them to be sufficiently

foreseeable to prevent this factor from weighing against imposing 

a duty.

10 This isn’t to say that the therapist will necessarily be the 

proximate cause of these harms. Cf. Jeffs, 2012 UT 11, ¶ 26 

(“[W]hether the precise mixture of drugs did foreseeably cause 

Mr. Ragsdale’s outburst is a question of proximate cause, as is 

whether Mr. Ragsdale’s criminal conduct supersedes [the nurse’s] 

conduct as the proximate cause of Ms. Ragsdale’s death.”).
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whether the defendant is best situated to take 

reasonable precautions to avoid injury. Typically, 

this factor would cut against the imposition of a 

duty where a victim or some other third party is in a 

superior position of knowledge or control to avoid 

the loss in question. . . . because [the defendant] 

lacks the capacity that others have to avoid injury by 

taking reasonable precautions.

Id. ¶ 30 (footnotes omitted).

¶ 29 When sexual abuse has actually occurred, the treating 

therapist isn’t in the best position to avoid the potential harms. 

The third-party abuser is in a better position to avoid the potential 

harms, namely by not committing the abuse in the first place. But 

the same cannot be said when memories or allegations of “abuse” 

emanate from the practices or techniques in the therapy sessions 

themselves. Because only the therapist has control over the 

instrumentality that creates the nonexistent “abuse,” treating 

therapists are “in the best position to avoid the harm caused by 

the introduction of false memories.” Roberts I, 886 N.W.2d at 472. 

The therapist “alone is responsible for the methods used in 

treatment.” Id. “[T]he patient must trust that the [therapist] will 

pursue a course of treatment guided by competent professional 

judgment” and the parents “have a right to expect that a 

[therapist] will not cause the patient to have false memories of 

childhood sexual abuse.” Id. at 472–73 (citation omitted). Thus,

this factor doesn’t weigh against the imposition of a duty in 

circumstances (such as those alleged in this case) where the 

alleged abuse has not in fact occurred. In combination with the 

policy considerations set forth below, this factor supports limiting 

a treating therapist’s duty to that of not affirmatively giving rise 

to false memories or false allegations of sexual abuse by the 

plaintiff parent.

3. General Policy Considerations

¶ 30 Finally, the defendants and their amici raise several 

general policy arguments to counter the imposition of a duty on 

treating therapists. These policy considerations must be analyzed 

against this backdrop:

Concluding that no duty exists means that, “for 

certain categories of cases, defendants may not be 

held accountable for damages they carelessly cause, 
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13

no matter how unreasonable their conduct.” But 

recognizing a duty does not itself mean that a 

defendant will incur liability; a plaintiff must still 

prove the other elements of negligence (breach of 

the duty, causation, and damages).

Guerra v. State, 348 P.3d 423, 429 (Ariz. 2015) (Bales, C.J., 

dissenting) (citations omitted).

¶ 31 We find the policy considerations raised are insufficient 

to reject a duty on a broad categorical basis. However, the policy 

considerations are sufficient to warrant limiting the duty to 

conducting treatment in a manner that doesn’t recklessly give rise 

to false memories or allegations of childhood sexual abuse.11 See

RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND 

EMOTIONAL HARM § 7(b) (“In exceptional cases, when an 

articulated countervailing principle or policy warrants denying or 

limiting liability in a particular class of cases, a court may decide 

that the defendant has no duty or that the ordinary duty of 

reasonable care requires modification.”); cf. Roberts I, 886 N.W.2d 

at 473 (limiting the “duty to ensur[ing] that the professional’s 

treatment does not give rise to false memories of childhood sexual 

abuse”).

¶ 32 The defendants and their amici first raise the social 

utility of treating and eradicating sexual abuse and allege that a 

duty would “chill” a therapist’s treatment of a minor child’s 

sexual abuse trauma. We recognize the strong social importance 

of providing children therapy for sexual abuse. See, e.g., Althaus ex 

rel. Althaus v. Cohen, 756 A.2d 1166, 1170 (Pa. 2000) (“The need for 

prevention of child abuse is unquestionable, as is the importance 

of adequate psychological treatment for children who have been 

sexually abused.”) It’s this importance and social utility, along 

with the concerns discussed in paragraph 29, which lead us to 

 

11 Mr. Mower argues that he has a “vested right” in the 

negligence standard (i.e. reasonable care) announced by Jeffs that 

applied when his claim accrued. We disagree. No case, including 

Jeffs, has announced a duty to the category before us. We wouldn’t 

be taking away a vested right if we concluded that no duty exists 

in this case. Thus, we can’t be taking away a vested right by 

limiting the duty we first announce in this case.
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14

limit a treating therapist’s duty towards nonpatient parents to 

acting in a manner that refrains from recklessly causing false 

memories or allegations of childhood sexual abuse by that 

parent.12

¶ 33 But we don’t share the concern that any duty to 

nonpatient parents would impact a therapist’s treatment. “[T]o 

entertain this argument is to accept the facile notion that one will 

not engage in conduct unless he can do so recklessly and with 

impunity.” Guerra, 348 P.2d at 432 (Bales, C.J., dissenting). In 

reality, “the standard of care by which a therapist’s conduct is 

measured is not heightened.” Hungerford, 722 A.2d at 481–82. The 

duty we announce today “will not burden the therapist with a 

standard of care more onerous than that under which he or she is 

already required to act in treating his or her patients.” Sawyer v. 

Midelfort, 595 N.W.2d 423, 435 (Wis. 1999). As a result, “the 

therapist’s treatment choices need be limited only by the duty of 

care the therapist owes his or her patient.” Id.

¶ 34 Moreover, “[t]he requirements of breach and proximate 

cause . . . counterbalance any improper incentive to withhold 

 

12 After our decision in Jeffs, the legislature enacted Utah Code 

section 78B-3-426. Section 78B-3-426(3) requires nonpatient 

plaintiffs suing a health care provider for malpractice to establish 

that “the health care provider’s . . . conduct . . . manifests a 

knowing and reckless indifference toward, and a disregard of, the 

injury suffered by the nonpatient plaintiff.”

This section doesn’t apply in this case because it came into 

effect after Mr. Mower’s claim arose. Therefore, the arguments in 

the briefing regarding whether this statute creates a duty to all 

nonpatients and whether it allows recovery for pure emotional 

harm aren’t before us, and nothing in this opinion should be read 

as an interpretation of that statute.

However, while not dispositive of our decision today, we 

believe that it’s important to recognize that the policymaking 

branch of our government has weighed the public policies at issue 

and determined that, in the circumstances where the statute 

applies, a heightened standard is necessary, and a health care 

provider can only be liable to a nonpatient where his or her 

“conduct . . . manifests a knowing and reckless indifference.” 

UTAH CODE § 78B-3-426(3).
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Opinion of the Court

15

treatment because they pose significant barriers to plaintiffs in 

[these] cases.” Cf. Jeffs, 2012 UT 11, ¶ 35. A therapist shouldn’t fear 

a duty to nonpatient parents because a therapist who doesn’t

breach that duty won’t be held liable. “Even when a [therapist] 

uses a therapeutic technique that actually causes a patient to have 

a false memory of sexual abuse,” the therapist “would not be 

liable if a reasonable [therapist] would have employed the 

technique under the circumstances, notwithstanding the apparent 

risk.” Roberts I, 866 N.W.2d at 472.

¶ 35 But we do recognize that treating a minor for potential 

sexual abuse is a soft science which can be particularly tricky 

when dealing with very young children. Many jurisdictions have 

found the concern of a “chilling” effect to be so significant that 

they have relied upon it to completely reject a duty. See, e.g., Doe v. 

McKay, 700 N.E.2d 1018, 1024–25 (Ill. 1998) (“Hoping to avoid 

liability to third parties, however, a therapist might instead find it 

necessary to deviate from the treatment the therapist would 

normally provide, to the patient’s ultimate detriment.”); Zamstein 

v. Marvasti, 692 A.2d 781, 789 (Conn. 1997) (Therapists “should 

not be distracted from their duty by the specter of potential 

liability to the suspected abuser in the event that their assessment 

of the child eventually turns out to be incorrect but honest.”); 

Flanders v. Cooper, 706 A.2d 589, 591–92 (Me. 1998) (“Although the 

negligent reporting of sexual abuse is not at issue in this case, 

there is an inescapable link between the duty to a third party 

urged by [the plaintiff] and the willingness of a health care 

professional to pursue a course of treatment that would cause a 

child to recognize that sexual abuse has occurred.” (footnote 

omitted)). Although we’re not convinced that this concern 

requires us to conclude that no duty exists, we believe that it 

further supports limiting liability to when a therapist acts 

recklessly, ensuring that a therapist’s concerns over breaching a 

duty to a nonpatient parent only come into play when the 

therapist would have significantly violated the standard of care 

owed to his or her patient.

¶ 36 The defendants and their amici next contend that 

creating a duty in the category before us would force a therapist 

to place the interests of third parties above the interests of the 

child. But this isn’t the case. When it comes to false memories or 

allegations of childhood sexual abuse, the interests of the patient 

child and the nonpatient parent are aligned. See Roberts I, 866 
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N.W.2d at 468 (“The patient himself or herself is obviously 

harmed when a mental health professional uses techniques that 

give rise to false memories of sexual abuse.”); cf. Jeffs, 2012 UT 11, 

¶ 38 (“[T]he patient’s welfare encompasses an interest in 

minimizing a risk of causing harm to third parties.”). And the 

duty we announce could only be breached when those interests 

are aligned because “the plaintiff would bear the burden of 

proving by a preponderance of the evidence that the patient’s 

memories [or the allegations] of childhood sexual abuse are 

actually false.” Roberts I, 866 N.W.2d at 472.

¶ 37 Next, the defendants and their amici argue that a duty 

would undermine confidentiality in the therapist-patient 

relationship and the openness in the relationship. But we already 

rejected this notion in Jeffs:

The physician-patient privilege and medical privacy 

statutes are carefully designed to protect 

confidentiality and patient privacy, and a party 

concerned about confidentiality in discovery may 

seek refuge in a protective order. And even if the 

existing law on physician-patient confidentiality is 

imperfectly attuned to the concerns implicated in 

negligent prescription cases filed by nonpatients, the 

solution is to fine-tune that law, not to categorically 

foreclose the imposition of a duty.

2012 UT 11, ¶ 37. The same is true of therapist-patient 

confidentiality. Thus, concerns over confidentiality don’t warrant 

a complete, categorical rejection of a duty.

¶ 38 The defendants and their amici also argue that the 

inexactness of therapy requires eliminating a duty. This argument 

falls short. “[T]he complexity of a particular profession does not 

typically justify the abdication of professional responsibility for 

negligence.” Jeffs, 2012 UT 11, ¶ 39. Instead, “complexity of 

therapy or treatment necessarily is a factor that informs what is 

found to be the standard of due care in a particular case.” Sawyer, 

595 N.W.2d at 436. And like the court in Sawyer, “we do not 

believe that a therapist should be relieved from liability when his 

or her treatment is negligent simply because the problem he or 

she is treating is complex.” Id.

¶ 39 Finally, the defendants contend that Utah’s sexual abuse 

reporting statute, UTAH CODE § 62A-4a-410, represents a strong 
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Opinion of the Court

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policy against liability, even when the basis of the claims don’t 

arise from a report (or other action covered by the statute).13 But 

section 62A-4a-410 doesn’t grant wholesale immunity for any 

report of sexual abuse. Instead, it limits immunity to those acting 

in “good faith.” Id. § 62A-4a-410(1). A therapist would be immune 

under the statute to the extent that a nonpatient parent alleges 

damages that flow from a good-faith report. But this limited 

immunity doesn’t warrant removing liability for a whole category 

of the defendants, particularly when the category includes actions 

not covered by the statute and individuals who are not operating 

in good faith, but are instead acting recklessly.

¶ 40 Ultimately, we conclude that the public policy 

considerations don’t endorse the wholesale rejection of a duty to 

nonpatient parents. But the policy considerations do warrant 

limiting such a duty to refraining from recklessly causing false 

memories of childhood sexual abuse by the plaintiff parent.

II. DUTIES AND EMOTIONAL DISTRESS DAMAGES IN 

NEGLIGENCE CASES

A. A General Overview of Duties in the Law

¶ 41 The parties disagree on whether a duty under the Jeffs

framework extends to not causing emotional harm. A duty is “an 

obligation, to which the law will give recognition and effect, to 

conform to a particular standard of conduct toward another.” See

B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 5, 275 P.3d 228 (quoting 

AMS Salt Indus., Inc. v. Magnesium Corp. of Am., 942 P.2d 315, 321 

(Utah 1997)). This obligation changes according to the 

relationships of the parties and the legally recognized duties that 

inhere in their relationships. These duties can be statutorily based 

or recognized in common law.

¶ 42 “Generally, at common law, one who suffers injury to 

his person or property because of the negligence of another has a 

right of action in tort.” Payne ex rel. Payne v. Myers, 743 P.2d 186, 

188 (Utah 1987) (citation omitted); see also Jeffs, 2012 UT 11, ¶ 21 

(“As a general rule, we all have a duty to exercise care when 

 

13 As the defendants acknowledge, Mr. Mower’s claims don’t 

stem from Ms. Baird reporting potential sexual abuse, as she was 

required to under the statute. Instead, Mr. Mower’s claims are 

based on malpractice committed during T.M.’s treatment.
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18

engaging in affirmative conduct that creates a risk of physical 

harm to others.” (citations omitted)); Maack v. Res. Design & 

Constr., Inc., 875 P.2d 570, 580 (Utah Ct. App. 1994) (“A duty to 

use ordinary care and skill is not imposed in the abstract. It results 

from a conclusion that an interest entitled to protection will be 

damaged if such care is not exercised. Traditionally, interests 

which have been deemed entitled to protection in negligence have 

been related to safety or freedom from physical harm. Thus, where 

personal injury is threatened, a duty in negligence has been 

readily found. Property interests also have generally been found 

to merit protection from physical harm.” (quoting Crowder v. 

Vandendeale, 564 S.W.2d 879, 882 (Mo. 1978) (en banc))), abrogated 

on other grounds by Davencourt at Pilgrims Landing Homeowners 

Ass’n v. Davencourt at Pilgrims Landing, LC, 2009 UT 65, 221 P.3d 

234.

¶ 43 The traditional common law duty is framed as “a duty of 

reasonable care.” See Williams v. Melby, 699 P.2d 723, 726 (Utah 

1985) (citations omitted). Compliance with that traditional duty is 

met when the defendant exercises “the care that a reasonable 

person would undertake in the defendant’s circumstances.” 

Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 37, 345 P.3d 619. The

specific scope of the duty will depend upon the conduct that gives 

rise to the duty and the relationship of the plaintiff and the 

defendant. See id. ¶ 29 (“[The defendant’s] affirmative acts are a 

basis for imposing a duty in the performance of those acts, not for a 

broader duty to undertake additional measures aimed at 

preventing the sexual assault by a third party.”); Jeffs, 2012 UT 11, 

¶ 17 (The court distinguished a court of appeals case by noting 

that the court of appeals case “simply indicates that the type of 

harm the officer suffered—removal from the police force—did not 

come within the range of harms that the physician had a duty to 

avoid. That does not mean that the physician lacked a duty to 

avoid affirmatively causing physical injury to the officer. If the 

physician in [that case] had used a scalpel instead of a tongue 

depressor to facilitate a throat examination, presumably the duty 

would be as obvious as the ensuing injuries.”); id. ¶ 7 (“Acts of 

misfeasance . . . typically carry a duty of care” while 

“[n]onfeasance . . . generally implicates a duty only in cases of 

special legal relationships.” (citation omitted)). The defendant’s 

relationship with a third party may also give rise to a duty of care 

to the plaintiff. See Graves, 2015 UT 28, ¶ 20 (“A person generally 

has no duty to control the conduct of third persons. This general 
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Opinion of the Court

19

rule, of course, is subject to a significant exception—[the] ‘special 

relationship’ principle.” (citations omitted) (internal quotation 

marks omitted)).

¶ 44 Our law also recognizes “[l]egal duties” arising from 

“contractual, fiduciary, and filial relationships.” AMS Salt Indus., 

942 P.2d at 321; see also Gables at Sterling Vill. Homeowners Ass’n, 

Inc. v. Castlewood-Sterling Vill. I, LLC, 2018 UT 4, ¶¶ 52, 56, 417 

P.3d 95 (recognizing that fiduciary duties that “give[] rise to a 

‘particularized and enhanced duty of care’” include fiduciary 

relationships “such as attorney-client, physician-patient, or 

insurer-insured” (citations omitted)). Whether a legal duty exists

and the scope of that duty depends on “the structure and 

dynamics of the relationship between the parties.”14 Yazd v. 

Woodside Homes Corp., 2006 UT 47, ¶ 15, 143 P.3d 283; see also

Davencourt at Pilgrims Landing, 2009 UT 65, ¶ 37 (recognizing a 

“limited fiduciary duty” because of “the nature of the developer’s 

relationship with the association and its members”). A defendant 

may also be obligated to conform to specific standards of conduct 

based upon a statutory duty. See Dugan v. Jones, 615 P.2d 1239, 

1248 (Utah 1980) (“Though not occupying a fiduciary relationship 

with prospective purchasers, a real estate agent hired by the 

vendor is expected to be honest, ethical, and competent and is 

answerable at law for breaches of his or her statutory duty to the 

public.”), superseded on other grounds by rule, UTAH R. CIV. P. 16(d), 

as recognized in Arnold v. Curtis, 846 P.2d 1307 (Utah 1993).

¶ 45 Duties may give rise to negligence claims or only to

specifically recognized causes of action outside of a negligence 

 

14 The attenuation of the relationship is highly relevant to 

determining whether a legal duty exists. See Yazd v. Woodside 

Homes Corp., 2006 UT 47, ¶ 16, 143 P.3d 283. We have also 

identified factors such as “[a]ge, knowledge, influence, bargaining 

power, sophistication, and cognitive ability” as some of the most 

“prominent among a multitude of life circumstances that a court 

may consider in analyzing whether a legal duty is owed by one 

party to another.” Id. If the disparity in the “circumstances distorts 

the balance between the parties in a relationship to the degree that 

one party is exposed to unreasonable risk, the law may intervene 

by creating a duty on the advantaged party to conduct itself in a 

manner that does not reward exploitation of its advantage.” Id.
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Opinion of the Court

20

claim. See Gables at Sterling Vill., 2018 UT 4, ¶ 56 (differentiating 

between a breach of fiduciary duty claim and a negligence claim); 

Davencourt at Pilgrims Landing, 2009 UT 65, ¶ 40 (allowing claims 

for negligence and negligent misrepresentation “insofar as the 

claims stem from the limited fiduciary duty owed”); Yazd, 2006 

UT 47, ¶ 18 (holding that a claim for fraudulent concealment was 

warranted where a builder-contractor assumes a legal duty to 

homebuyers to communicate material information); Beck v. 

Farmers Ins. Exch., 701 P.2d 795, 800 (Utah 1985) (“[If] the duties 

and obligations of the parties are contractual rather than 

fiduciary[, w]ithout more, a breach of those implied or express 

duties can give rise only to a cause of action in contract, not one in 

tort.”). A duty also exists to refrain from committing intentional 

torts. Graves, 2015 UT 28, ¶ 50 (“[E]veryone has a legal obligation 

to refrain from committing intentional torts.”); Beck, 701 P.2d at

800 n.3 (“[T]he law of this state recognizes a duty to refrain from 

intentionally causing severe emotional distress to others.”

(citation omitted)).

¶ 46 In a typical negligence claim based on a traditional duty,

a plaintiff may not recover absent physical harm to the plaintiff or 

his or her property. See supra ¶ 42. However, in narrow 

circumstances, when a defendant breaches the traditional duty 

owed to the plaintiff by placing him or her at risk of actual 

physical peril, the plaintiff may recover for negligent infliction of 

emotional distress. See Hansen v. Sea Ray Boats, Inc., 830 P.2d 236, 

239–40 (Utah 1992). Although recovery for emotional distress 

usually requires presence in the zone of danger, see id., the 

Restatement (Third) of Torts now recognizes limited situations 

where defendants will also owe the plaintiff a limited duty to act 

with reasonable care when placing one at risk of serious 

emotional harm. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR 

PHYSICAL AND EMOTIONAL HARM § 47 cmt. g (AM. LAW INST. 2012).

The next two subsections flesh out the development of the law 

with respect to the recovery of emotional distress damages in 

negligence and negligent infliction of emotional distress cases.

B. Development of Utah Case Law on Negligent Infliction of Emotional 

Distress

¶ 47 Historically, “[i]t [was] well established in Utah that a 

cause of action for emotional distress [couldn’t] be based upon 

mere negligence.” Reiser v. Lohner, 641 P.2d 93, 100 (Utah 1982) 

(citations omitted), abrogated by Johnson v. Rogers, 763 P.2d 771 
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Opinion of the Court

21

(Utah 1988). Reiser based that conclusion on two prior decisions: 

Samms v. Eccles, 358 P.2d 344 (Utah 1961), abrogated by Johnson v. 

Rogers, 763 P.2d 771 (Utah 1988), and Jeppsen v. Jensen, 155 P. 429 

(Utah 1916). See Reiser, 641 P.2d at 100 n.26 (citations omitted).

¶ 48 In 1988, this court decided that, based on the age of 

Samms and Jeppsen, “a reexamination of their premises [was] 

timely.” Johnson, 763 P.2d at 779. We recognized that “negligent 

infliction of emotional distress as a separate tort (distinct from the 

‘willful and wanton’ infliction of emotional distress or the 

negligent infliction of physical injuries with concomitant 

emotional injuries) ha[d] evolved rapidly.” Id. (citations omitted). 

Although courts across the country had adopted different rules, 

by 1988 “no jurisdiction preclude[d] recovery under any 

circumstances.” Id. Johnson analyzed three tests used by other 

jurisdictions: the impact rule, the zone-of-danger rule (as set forth 

in section 313 of the Restatement (Second) of Torts), and a 

foreseeability standard (the Dillon rule). Id. at 780–84.

¶ 49 The majority in Johnson recognized a cause of action for 

negligent infliction of emotional distress in Utah and adopted the 

zone-of-danger rule found in section 313, but acknowledged that, 

“[a]t some future date, [the court] may determine that there is 

merit in some of the other approaches.” Id. at 785 (Zimmerman, J., 

concurring in part) (representing a majority on the issues 

addressed). Then, “we unequivocally adopted the zone of danger 

rule.” Boucher ex rel. Boucher v. Dixie Med. Ctr., 850 P.2d 1179, 1182 

(Utah 1992) (citing Sea Ray Boats, 830 P.2d at 241).

¶ 50 This court’s selection of the zone-of-danger rule “[was]

based in part on the notion that allowing recovery to all those 

who suffer emotional distress because of another’s injury has the 

potential of allowing unlimited recovery.” Id. at 1182 (citation 

omitted). We recognized that “[t]he scope of a defendant’s duty is 

limited to injuries that are the foreseeable result of his or her 

carelessness.” Sea Ray Boats, 830 P.2d at 241. So, “[t]o place a duty 

upon a defendant to protect bystanders who are not in danger of 

bodily injury from purely emotional injury is to allow potentially 

unlimited recovery.” Id. We held that “the foreseeability of 

emotional injury as the only limit on recovery for that injury is 

speculative at best and creates an unjustified risk for a defendant 

to bear when he or she has not created a risk of bodily injury to 

the plaintiff.” Id. Furthermore, “[t]he approaches that allow 

recovery for plaintiffs who are not within the zone of danger have 
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Opinion of the Court

22

not developed rational limits on liability. Rather, these approaches 

have led to confusion, inconsistent application, and anomalous 

results.” Boucher, 850 P.2d at 1182 (citations omitted).

¶ 51 The zone-of-danger rule, as set out in section 313 of the 

Restatement (Second) of Torts, provides:

(1) If the actor unintentionally causes emotional 

distress to another, he is subject to liability to the 

other for resulting illness or bodily harm if the actor

(a) should have realized that his conduct involved 

an unreasonable risk of causing the distress, 

otherwise than by knowledge of the harm or peril 

of a third person, and

(b) from facts known to him should have realized 

that the distress, if it were caused, might result in 

illness or bodily harm.

(2) The rule stated in Subsection (1) has no 

application to illness or bodily harm of another 

which is caused by emotional distress arising solely 

from harm or peril to a third person, unless the 

negligence of the actor has otherwise created an 

unreasonable risk of bodily harm to the other.

RESTATEMENT (SECOND) OF TORTS § 313.

¶ 52 Subsection (1) allows “[a] plaintiff who was within the 

zone of danger” to “recover for emotional distress caused by fear 

for personal safety even though the plaintiff suffered no physical 

harm as a result of the defendant’s breach of duty.” Sea Ray Boats,

830 P.2d at 240; see also id. at 240 n.13 (“Although a literal reading 

of subsection (1) does not appear to require that the plaintiff be 

within the zone of danger in order to obtain recovery if he or she 

feared personal harm, we believe that the case law interpreting 

section 313, which requires that the plaintiff be within the zone of 

danger, is the proper limitation on recovery. Therefore, we require 

that the plaintiff be within the zone of danger.” (citations 

omitted)); Boucher, 850 P.2d at 1181 (“[P]laintiffs who suffer 

emotional distress because of another’s negligence, though they 

do not suffer any physical impact, [may recover] only if the 

plaintiffs are placed in actual physical peril and fear for their own 

safety.” (citations omitted)).
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Opinion of the Court

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¶ 53 Recovery is typically prohibited under subsection (1) for 

emotional distress damages arising from the “knowledge of the 

harm or peril to a third person.” RESTATEMENT (SECOND) OF TORTS

§ 313(1)(a). However, under subsection (2), a plaintiff may 

“recover for emotional distress caused by witnessing injury to 

others” in the same manner as under subsection (1) when the 

plaintiff is “within the zone of danger created by the defendant’s 

breach of duty.” Sea Ray Boats, 830 P.2d at 240 (citation omitted).

¶ 54 Thus, presence in the zone of danger serves as a major 

limitation to recovery for negligent infliction of emotional distress

under our case law. But presence in the zone of danger isn’t the 

only limitation to recovery for negligent infliction of emotional 

distress. Under section 313, a plaintiff can only recover for the 

“resulting illness or bodily harm.” RESTATEMENT (SECOND) OF 

TORTS § 313.

¶ 55 In Hansen v. Mountain Fuel Supply Co., we were asked to 

determine “whether a plaintiff seeking recovery for [negligent 

infliction of emotional distress] must demonstrate that the 

emotional distress ha[d] manifested itself in physical symptoms.” 

858 P.2d 970, 973 (Utah 1993). The majority of the court decided 

not to reach the issue, determining that even if mental illness, in 

the absence of physical manifestation, was sufficient, the plaintiffs 

in the case had not met that standard. Id. at 982 (Zimmerman, J., 

concurring in part and concurring in the result) (representing a 

majority of the court).

¶ 56 We were again presented with this question in Harnicher 

v. University of Utah Medical Center, 962 P.2d 67 (Utah 1998). In 

Harnicher, we determined that “severe emotional distress can 

cause mental illness and that genuine mental illness constitutes 

real harm.” Id. at 71. But we declined to determine whether 

“‘diagnosed mental illness,’ standing alone, is sufficient to 

support a claim for negligent infliction of emotional distress.” Id.

And, we further limited recovery by concluding that “practicality 

demands that the standard of proof in such cases be more than 

merely subjective.” Id. (citation omitted).

¶ 57 We also noted that “the emotional distress suffered 

must be severe; it must be such that ‘a reasonable [person,] 

normally constituted, would be unable to adequately cope with 

the mental stress engendered by the circumstances of the case.’” 

Id. at 70 (alteration in original) (quoting Mountain Fuel, 858 P.2d at 

975). We found “[s]uch a threshold test [to be] particularly 
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Opinion of the Court

24

necessary because the existence of and cause of a mental illness 

often is not obvious in a manner comparable to a physical injury 

or illness.” Id. at 72. Since Harnicher, we have continued to require 

a plaintiff to “prove [emotional] distress by means of severe 

physical or mental manifestations.” Carlton v. Brown, 2014 UT 6, 

¶ 57, 323 P.3d 571 (citation omitted).

¶ 58 We have similarly held fast in our zone-of-danger 

requirement. We adopted the zone-of-danger rule in part because 

the “limitations seem[ed] to strike a fair balance between the 

interests those injured have in recovering damages and the 

interests of the courts and the public in predictable rules.” Johnson, 

763 P.2d at 785 (Zimmerman, J., concurring in part) (expressing a 

majority opinion on the issue). We have also emphasized that the 

zone-of-danger rule “comports with the basic tort principle that a 

person may not recover for vicarious injuries.” Sea Ray Boats, 830 

P.2d at 241 (citations omitted). We have frequently been presented 

with the opportunity to reconsider our requirements, but have 

declined to do so based on the rationale behind the rule. See, e.g., 

id. at 242 (rejecting the Dillon framework for bystander recovery 

based on foreseeability and holding that a plaintiff “who feared 

for her own safety but was not objectively within the zone of 

danger created by the defendants’ breach of duty[] may not 

recover for emotional distress caused by her fright”); Boucher, 850 

P.2d at 1182 (declining to adopt modifications of the Dillon rule 

and noting that our court had “unequivocally . . . rejected any 

approach that allows plaintiffs who are not within the zone of 

danger to recover for emotional distress caused by witnessing 

another’s injury” (citation omitted)); Straub v. Fisher & Paykel 

Health Care, 1999 UT 102, ¶¶ 9, 14, 990 P.2d 384 (distinguishing 

“between direct victims, those who are in actual physical peril, 

and bystanders, those who may witness or be affected by the 

actions, but who themselves suffer no actual physical peril” and 

prohibiting recovery “unless the plaintiff is a direct victim of the 

defendant’s negligence” (citation omitted)).

¶ 59 Throughout these cases, we have highlighted three main

policy concerns that have shaped our law. First, our case law 

reflects the need to ensure the genuineness of claims, both in their 

existence and in causation. See, e.g., Harnicher, 962 P.2d at 72 (A 

threshold severity test is necessary because “the existence of and 

cause of a mental illness often is not obvious in a manner 

comparable to a physical injury or illness.”). Second, there must 
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Opinion of the Court

25

be reasonable limitations on recovery, both in terms of the 

potential class of victims and the severity of the harm required. 

See, e.g., Sea Ray Boats, 830 P.2d at 241 (“To place a duty upon a 

defendant to protect bystanders who are not in danger of bodily 

injury from purely emotional injury is to allow potentially 

unlimited recovery. . . . [T]he foreseeability of emotional injury as 

the only limit on recovery for that injury is speculative at best and 

creates an unjustified risk for a defendant to bear when he or she 

has not created a risk of bodily injury to the plaintiff.”); Harnicher, 

962 P.2d at 71–72 (requiring the emotional distress suffered to be 

“severe”). Finally, plaintiffs should only be allowed to recover for 

a breach of a duty owed to them and shouldn’t be allowed to 

recover vicariously for a breach of a duty owed another. See, e.g., 

Sea Ray Boats, 830 P.2d at 240–41 (“The zone of danger rule 

complements the basic requirement that persons exercise 

reasonable care to protect others from injury. Those who breach 

their basic duty of care to others will be required to compensate 

those who are injured, even when the injuries are not caused by 

direct impact, but by the operation of foreseeable emotional 

distress. Those plaintiffs to whom a defendant has not breached 

the duty of care will be denied recovery, even if they are

bystanders who witness the injury of another to whom the 

defendant has breached the duty.”); id. at 241 (“A plaintiff may 

only sue in his own right for a wrong personal to him, and not as 

the vicarious beneficiary of a breach of duty to another.” (citation 

omitted)); Straub, 1999 UT 102, ¶ 15 (refusing to allow recovery 

“for emotional distress arising from a situation in which [the 

defendants] did not breach a duty of care owed to [the plaintiff]”

(citation omitted)).

C. Development of Emotional Distress Damages Around the Country

¶ 60 As our negligent infliction of emotional distress case law

evolved, we considered the evolution of negligent infliction of 

emotional distress claims around the country to guide our case 

law. See Johnson, 763 P.2d at 779 (“Virtually all jurisdictions in the 

United States now recognize a broad protected interest in mental 

tranquility . . . . The negligent infliction of emotional distress as a 

separate tort . . . has evolved rapidly only since the 1960s.”

(citation omitted)). In Johnson, for example, we recognized that no 

“jurisdiction in the United States . . . bars all recovery for the 

negligent infliction of emotional distress.” Id. at 782. Instead, 

“[t]he policy considerations in favor of realistic limits on 
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Opinion of the Court

26

negligence liability ha[d] given rise . . . to the impact rule, the 

zone-of-danger rule, and the Dillon rule.” Id. After considering the 

benefits and drawbacks of these rules, id. at 779–82, we selected 

the zone-of-danger rule to govern our negligent infliction of 

emotional distress cases, id. at 785 (Zimmerman, J., concurring in 

part) (representing a majority on the point).

¶ 61 Similarly, in considering a bystander recovery theory,

we looked at the bystander rules that applied in other courts. See

Sea Ray Boats, 830 P.2d at 242 (considering the bystander rule 

adopted by the California Supreme Court in Dillon (citation 

omitted)); Straub, 1999 UT 102, ¶¶ 11–14 (rejecting cases that were 

“factually dissimilar to the bystander scenario” and treated 

plaintiffs as “direct victims” even though not placed in actual 

physical peril (citations omitted)). And while we recognized that 

“many states have adopted Dillon’s rules as a framework for 

recovery in emotional distress cases,” we rejected this rule as 

“artificial and unworkable” and highlighted that the rule “is not 

based on any breach of a defendant’s duty to a plaintiff, but is 

based on vicarious recovery for the breach of a duty to another.”

Sea Ray Boats, 830 P.2d at 242.

¶ 62 Although we haven’t had a significant opportunity to 

revisit this area, negligent infliction of emotional distress case law 

around the country has continued to evolve. This evolution is best 

recognized by the 2012 publication of the Restatement (Third) of 

Torts: Liability for Physical and Emotional Harm. Sections 47 and 48 

are particularly relevant to following trends in negligent infliction 

of emotional distress cases.

¶ 63 Despite the evolution in the law, we note that the basic 

tenet behind emotional distress damages still holds true: the 

“general rule [is] that negligently caused pure emotional harm is 

not recoverable even when it is foreseeable.” RESTATEMENT 

(THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM

§ 47 cmt. i. Sections 47 and 48 act as exceptions to this general rule. 

Id.

¶ 64 Restatement (Third) section 47(a) adopts a zone-of-danger 

test similar to that which we have adopted under Restatement 
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Opinion of the Court

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(Second) section 313(1).15 Compare RESTATEMENT (THIRD) OF TORTS:

LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 47(a) with

RESTATEMENT (SECOND) OF TORTS § 313(1). See also RESTATEMENT 

(THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM

§ 47 cmt. e (referring to the rule in 47(a) as the “zone-of-danger 

requirement”). However, the Restatement (Third) and several 

courts across the country have expanded liability for emotional 

damages even when a plaintiff was never personally placed in 

physical danger.

¶ 65 The first expansion is the bystander rule adopted in 

Restatement (Third) section 48—an expansion of the rule we 

adopted in Restatement (Second) section 313(2). See Sea Ray Boats, 

830 P.2d at 240 (citation omitted) Under Restatement (Third) section 

48, a plaintiff may recover for serious emotional harm caused by 

witnessing a close family member suffer serious bodily injury at 

the hands of the defendant, as long as the plaintiff “perceive[d] 

the event contemporaneously,” even if the plaintiff was outside of 

the zone of danger. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR 

PHYSICAL AND EMOTIONAL HARM § 48 & cmt. a. This section is 

based on the rule adopted in Dillon v. Legg, 441 P.2d 912 (Cal. 

1968) (in bank). See id. § 48 cmt. a.

¶ 66 Since Dillon was decided, even the California Supreme 

Court found it to be unworkable. See Thing v. La Chusa, 771 P.2d 

814, 826 (Cal. 1989) (in bank) (“The Dillon experience confirms . . . 

that [f]oreseeability proves too much. . . . Although

[foreseeability] may set tolerable limits for most types of physical 

harm, it provides virtually no limit on liability for nonphysical 

harm.” (second and third alterations in original) (citation omitted) 

(internal quotation marks omitted)). As the Restatement (Third)

recognizes, twenty-nine “jurisdictions now follow Dillon or a 

modified version of the Dillon approach” while eleven 

 

15 We note that one major difference is that Restatement (Third)

section 47 requires the conduct to “cause[] serious emotional 

harm” instead of “severe” emotional harm. See RESTATEMENT 

(THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM 

§ 47; id. § 47 cmt. j (explaining the differences between “serious” 

and “severe” emotional harm). Our case law requires a plaintiff to 

establish “severe” emotional distress. Harnicher, 962 P.2d at 72 

(quoting Mountain Fuel, 858 P.2d at 975).
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Opinion of the Court

28

jurisdictions (including Utah) “permit bystander recovery only 

when the plaintiff is in the ‘zone of danger.’” RESTATEMENT 

(THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM

§ 48 reporter’s notes cmt. a (citations omitted).

¶ 67 We have previously considered, and rejected, this 

bystander rule. As the Restatement (Third) notes, a bystander’s 

claim “is derivative of the physically injured person’s tort claim 

against the tortfeasor.” Id. § 48 cmt. d. But, under Utah law, “[a] 

plaintiff may only sue in his own right for a wrong personal to 

him, and not as the vicarious beneficiary of a breach of duty to 

another.” Sea Ray Boats, 830 P.2d at 241 (citations omitted).

¶ 68 The second example of this expansion, and the portion 

of the Restatement (Third) most relevant to our analysis today, is 

section 47(b). Under section 47(b), a plaintiff can recover for 

serious emotional harm if the harm “occurs in the course of 

specified categories of activities, undertakings, or relationships in 

which negligent conduct is especially likely to cause serious 

emotional harm.” Id. § 47.

¶ 69 Restatement (Third) section 47(b) stems from cases around 

the country that recognized certain circumstances where a 

plaintiff should be allowed to recover for negligently inflicted 

emotional distress even when “the defendant [hasn’t] created a 

risk of bodily harm to the plaintiff.” Id. § 47 cmt. f. Section 47(b) 

recognizes that some parties have a limited duty to exercise 

reasonable care when placing another at risk of serious emotional 

harm when engaged in certain conduct. Id. § 47 cmt. g.

¶ 70 Courts originally recognized two types of cases that 

served as a predicate for the rule under section 47(b): 

“(1) delivering a telegram or other communication erroneously 

announcing death or illness; and (2) mishandling a corpse or 

bodily remains.” Id. § 47 cmt. f. Courts around the country have 

expanded liability beyond those two types of cases, permitting 

recovery for claims such as 

a physician negligently diagnos[ing] a patient with a 

dreaded or serious disease; a physician negligently 

caus[ing] the loss of a fetus; a hospital los[ing] a 

newborn infant; a person injur[ing] a fetus; a 

hospital (or another) expos[ing] a patient to HIV 

infection; an employer mistreat[ing] an employee; or 

a spouse mentally abus[ing] the other spouse.
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29

Id.

¶ 71 Different courts have since adopted different tests and 

parameters. Some courts have adopted an independent duty rule 

that “allow[s] recovery where the claimant establishes the breach 

of some independent duty.” Larsen v. Banner Health Sys., 81 P.3d 

196, 202 (Wyo. 2003) (citations omitted). This rule allows recovery 

for emotional distress damages that aren’t accompanied by 

physical injury “where the nature of the relationship between the 

parties is such that there arises a duty to exercise ordinary care to 

avoid causing emotional harm.” Lawrence v. Grinde, 534 N.W.2d 

414, 421 (Iowa 1995) (citations omitted). Similarly, Alaska 

“recognizes a ‘preexisting duty exception’ . . . . [where] a plaintiff 

may recover when the parties stand in a contractual or fiduciary 

relationship and the nature of this relationship imposes a duty 

that would foreseeably result in emotional harm to the plaintiff.” 

Larsen, 81 P.3d at 203 (quoting Kailstrom v. United States, 43 P.3d 

162, 166 (Alaska 2002)).

¶ 72 At times, this duty is rooted in a contractual relationship. 

See, e.g., id. at 206 (“[I]n Wyoming, in the limited circumstances 

where a contractual relationship exists for services that carry with 

them deeply emotional responses in the event of breach, there 

arises a duty to exercise ordinary care to avoid causing emotional 

harm.”). At other times, the duty is rooted in a special relationship 

between the parties. See, e.g., Doe Parents No. 1 v. State, Dep’t of 

Educ., 58 P.3d 545, 582–90 (Haw. 2002) (concluding that, based on 

a “special relationship” between the school and the parents, a 

school owed a duty of care to parents of children to protect the 

children from sexual abuse at school and holding the school liable 

for the parents’ emotional distress damages that resulted from the 

child being sexually abused).

¶ 73 Since the Restatement (Third) was adopted, many courts 

have considered or accepted section 47(b) and established tests to 

determine when it has been satisfied. See, e.g., Guerra v. State, 348 

P.3d 423, 428–433 (Ariz. 2015) (Bales, C.J., dissenting); Miranda v. 

Said, 836 N.W.2d 8, 28–30 (Iowa 2013); Hedgepeth v. Whitman 

Walker Clinic, 22 A.3d 789, 817–19 (D.C. 2011) In Hedgepeth, the 

court highlighted two determinative factors required for a duty to 

exist under a draft version of section 47(b): “(1) a relationship or 

undertaking to the plaintiff that necessarily implicates the 

plaintiff’s emotional well-being, and (2) the special likelihood that 

the defendant’s negligence in the course of performing obligations 
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30

pursuant to such relationship or undertaking will result in 

emotional distress.” 22 A.3d at 815. Based on these factors, the 

court concluded that a clinic had a duty to the plaintiff to not 

misdiagnose the plaintiff as HIV-positive. Id. at 820.

¶ 74 In Miranda, 836 N.W.2d 8, Iowa also considered what 

test was appropriate for section 47(b). The court noted that “the 

existence of a duty of care to protect against emotional harm in 

negligence claims will turn on the nature of the relationship 

between the parties, as well as the nature of the transaction or 

arrangement responsible for creating the relationship.” Miranda, 

836 N.W.2d at 28. And in determining if the relationship is one 

where “negligent conduct is especially likely to cause severe 

emotional distress, [the Iowa Supreme Court] ha[s] primarily 

considered any remoteness between the negligent conduct and 

the harm to the plaintiff.” Id. at 30 (citations omitted). Moreover, 

conduct is “especially likely to cause severe emotional distress 

when the conduct [i]s specifically directed at the plaintiff.” Id.

(citation omitted).

¶ 75 Although different courts have adopted different 

approaches, the Restatement (Third) gives three suggested 

boundaries. First, “foreseeability cannot appropriately be 

employed as the standard to limit liability for emotional harm.” 

RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND 

EMOTIONAL HARM § 47 cmt. i. Second, “the policy issues 

surrounding specific categories of undertakings, activities, and 

relationships must be examined to determine whether they merit 

inclusion among the exceptions to the general rule of no liability.” 

Id. Finally, “[t]he more general protection for emotional harm 

contained in [section 47] should not be used to dilute or modify 

the requirements of those torts” that “protect specific aspects of 

emotional tranquility,” such as “defamation, invasion of privacy, 

false imprisonment, and malicious prosecution.” Id. § 47 cmt. o.

III. A LIMITED DUTY TO REFRAIN FROM INFLICTING 

SEVERE EMOTIONAL DISTRESS OUTSIDE OF 

ZONE-OF-DANGER CASES

¶ 76 Based on the evolution of the law around the country, as 

well as the policy considerations at play, we believe that it‘s time 

to expand our recovery for negligent infliction of emotional 

distress in very limited circumstances. Specifically, we believe that 

there are certain types of relationships, activities, and 

undertakings that go to the core of another person’s emotional 
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Opinion of the Court

31

well-being and security. Individuals who are engaged in such a 

relationship, activity, or undertaking have a duty to refrain from 

causing the other person severe emotional distress.

¶ 77 However, we’re not prepared today to adopt Restatement 

(Third) section 47(b) wholesale. See RESTATEMENT (THIRD) OF 

TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 47(b) (AM.

LAW INST. 2012). The rule we announce today deviates from 

section 47(b) in two key ways. First, we retain our “severe” 

emotional distress requirement—our limited adoption of section 

47(b) does not include reducing this requirement to “serious” 

emotional distress. Second, we’re not prepared to announce a 

duty to refrain from causing severe emotional distress when there 

wouldn’t otherwise be a traditional duty of reasonable care.

¶ 78 This new, limited emotional distress duty analysis 

should still be completed in the same manner as a traditional duty 

analysis—on a categorical level. Therefore, in order to establish 

that a class of defendants would owe a limited emotional distress 

duty to a class of plaintiffs, the following two-step analysis is 

required: (1) Does the defendant owe a traditional duty of 

reasonable care to the plaintiff?; and (2) Is the relationship, 

activity, or undertaking of the type that warrants a special, limited 

duty to refrain from causing severe emotional distress?

¶ 79 The first step—the traditional duty analysis—follows the 

five-factor test we established in B.R. ex rel. Jeffs v. West, 2012 UT 

11, ¶ 5, 275 P.3d 228. If such a traditional duty exists, then the 

second step is to analyze whether a special, limited duty to refrain 

from causing severe emotional distress is supported.

¶ 80 The second step itself requires a three-prong analysis: 

(1) Does the relationship, activity, or undertaking “necessarily 

implicate[] the plaintiff’s emotional well-being?” Hedgepeth v. 

Whitman Walker Clinic, 22 A.3d 789, 810 (D.C. 2011); (2) Is there 

“an especially likely risk” “that the defendant’s negligence in the 

course of performing obligations pursuant to such relationship[, 

activity,] or undertaking will result in [severe] emotional 

distress?” Id. at 810–11, 815; and (3) Do general public policy 

considerations warrant rejecting a limited emotional distress duty 

where prongs one and two would otherwise find one to exist? See 

RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND 

EMOTIONAL HARM § 47 cmt. d (“[A] court may decide that an 

identified and articulated policy is weighty enough to require the 
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Opinion of the Court

32

withdrawal of liability.”). All three prongs must be satisfied for a 

duty to refrain from causing severe emotional distress to exist.16

¶ 81 The first prong of this test ensures that the relationship, 

activity, or undertaking is one that’s “fraught with the risk of 

emotional harm” to the plaintiff.17 Vincent v. DeVries, 72 A.3d 886, 

893 (Vt. 2013) (citations omitted). This prong can be met only in 

those very limited “situations where the emotional well-being of 

others is at the core of, or is necessarily implicated by, the 

[relationship, activity, or] undertaking.” Hedgepeth, 22 A.3d at 814. 

It isn’t possible, nor would it be appropriate, for us to catalog all 

relationships, activities, or undertakings that would meet this 

requirement. Id. at 812. Instead, the analysis will have to be done 

on a case-by-case basis, id., with the recognition that very few 

relationships, activities, or undertakings can meet this high 

threshold.18

 

16 In this case, we’re only being asked to determine whether a 

limited emotional distress duty should exist in the context of 

affirmative acts. We leave open the questions of whether a limited 

emotional distress duty could ever exist for omissions, and, if so, 

whether our special legal relationship requirement for omissions 

applies.

17 The relationships at issue in this analysis are different than 

the “special legal relationships” addressed by the omissions prong 

in Jeffs, 2012 UT 11, ¶¶ 6-9. Cf. Roberts I, 866 N.W.2d at 470 n.6

(“The cases involving the duty to act for another’s benefit as a 

result of a special relationship are, therefore, inapposite.” (citation 

omitted)). Thus, the existence of a “special legal relationship” 

alone, without a showing that the relationship necessarily 

implicates a plaintiff’s emotional well-being, won’t satisfy the first 

prong of this test.

18 At first blush, it may seem this test is inconsistent with our 

decision in Straub v. Fisher & Paykel Health Care, 1999 UT 102, 990 

P.2d 384. It isn’t. In Straub, we rejected a nurse’s argument that 

she was a direct victim of a product manufacturer’s breach of a 

duty owed to her because she was operating the equipment that 

caused a patient’s death. Id. ¶¶ 12, 15. Instead, we upheld our rule 

that a plaintiff must be in the zone of danger or the defendant has 

“not breach[ed] a duty of care owed to [the plaintiff].” Id. ¶ 15. We 
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Opinion of the Court

33

¶ 82 The second prong of this test recognizes that “the 

imposition of a duty of care is not predicated on the existence of a 

highly emotional relationship alone.” Miranda v. Said, 836 N.W.2d 

8, 29 (Iowa 2013) (citation omitted). “Not all negligence is very 

likely to cause severe emotional distress, and a duty of care to 

protect against emotional harm does not arise unless negligence is 

[especially] likely to cause severe emotional distress.” Id. at 30 

(citations omitted). It’s necessary “that it [be] not only foreseeable, 

but especially likely, that the defendant’s negligence will cause 

[severe] emotional distress to the plaintiff.” See Hedgepeth, 22 A.3d 

at 800. “[R]emoteness between acts of negligence and the plaintiff 

[will] militate[] against a duty of care by making the emotional 

harm less likely to result from the relationship.” Miranda, 836 

N.W.2d at 30.

¶ 83 An objective standard must be used in considering 

whether there’s an “especially likely risk” of negligence causing 

emotional distress. Hedgepeth, 22 A.3d at 810–11 (“The likelihood 

that the plaintiff would suffer serious emotional distress is 

measured against an objective standard . . . .”). To recover, a 

plaintiff must also establish that he or she did actually suffer 

severe emotional distress that “manifested itself through severe 

mental or physical symptoms.” Carlton v. Brown, 2014 UT 6, ¶ 58, 

323 P.3d 571; see also supra ¶ 77 (maintaining the severe emotional 

distress requirement); Harnicher v. Univ. of Utah Med. Ctr., 962 P.2d

 

noted that “the manufacturer cannot reasonably foresee the extent 

to which persons who operate or administer these devices will 

suffer emotional distress upon witnessing injury to patients when 

they are not themselves placed at risk of injury.” Id.

The limited emotional distress duty test we announce today is 

readily distinguishable from our holding in Straub and in no way 

undercuts the rule we adopted in that case. Although there may 

be limited exceptions, generally the relationship between product 

manufacturer and product user doesn’t necessarily implicate the 

emotional well-being of the product user. It’s only when the 

relationship itself necessarily implicates the plaintiff’s emotional 

well-being that a defendant may reasonably foresee the extent to 

which a plaintiff will suffer emotional distress. The structure of 

our limited emotional distress duty test ensures that this will be 

the case before any duty arises.
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Opinion of the Court

34

67, 71–72 (Utah 1998) (requiring objective proof of severe 

emotional distress).

¶ 84 Finally, the third prong of the test recognizes that, as 

with traditional duties, public policy may weigh against 

recognizing a limited emotional distress duty. See Hedgepeth, 22 

A.3d at 817–18; RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR 

PHYSICAL AND EMOTIONAL HARM § 47 cmt. d; cf. Jeffs, 2012 UT 11, 

¶ 32. These policy considerations should closely mirror those in a 

traditional duty analysis. But special attention should be given to 

public policy concerns that would be specially implicated by a 

limited emotional distress duty, including the three main 

principles our court has relied upon in deciding negligent 

infliction of emotional distress cases, see supra ¶ 59.

¶ 85 In very narrow circumstances, the limited emotional 

distress duty test we announce today extends liability for 

negligent infliction of emotional distress beyond the 

zone-of-danger test we generally employ. But this limited 

emotional distress duty doesn’t replace or otherwise diminish our 

zone-of-danger requirements for recovery under that theory. 

Instead, we merely recognize that, “in addition to permitting 

recovery based on the ‘zone of physical danger’ rule,” the law 

allows for recovery based on a defendant’s duty to refrain from 

affirmatively causing a plaintiff severe emotional distress while 

engaging in certain relationships, activities, or undertakings. 

Hedgepeth, 22 A.3d at 800.

¶ 86 This limited emotional distress duty shouldn’t be 

viewed as an expansive mechanism for recovery. Any duty 

created under this analysis is limited to a duty to refrain from 

causing severe emotional distress. And, if a defendant breaches 

that duty, a defendant will only be liable for damages for the 

severe emotional harm that “manifest[s] itself through severe 

mental or physical symptoms.” Carlton, 2014 UT 6, ¶ 58. This duty 

“should not be used to dilute or modify the requirements of” 

other torts that “protect specific aspects of emotional tranquility.” 

RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND 

EMOTIONAL HARM § 47 cmt. o; see also id. ch. 8, scope note 

(Restatement (Third) sections 46–48 don’t cover liability for “[o]ther 

tort claims, such as assault, invasion of privacy, and interference 

with consortium [that] protect distinct aspects of the interest in 

emotional tranquility.”); id. § 46 cmt. m. (“Protection of the 

parents’ interest in their relationship with their child, i.e., 
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35

consortium, is not addressed in this Chapter or Restatement.” 

(citation omitted)).

¶ 87 As discussed in Part II.B above, we have acknowledged 

three main principles that have guided our court in determining 

when recovery is appropriate for negligent infliction of emotional 

distress: (1) “the need to ensure the genuineness of claims, both in 

their existence and in causation;” (2) the importance of 

“reasonable limitations on recovery, both in terms of the potential 

class of victims and the severity of the harm required;” and (3) the 

requirement that plaintiffs “only be allowed to recover for a 

breach of a duty owed to them.” Supra ¶ 59. The new limited 

emotional distress duty three-prong test we adopt, see supra ¶ 80,

fits within these principles and each individual limited emotional 

distress duty analysis can further ensure compliance.

¶ 88 First, we ensure the genuineness of claims in the same 

way as zone-of-danger cases by requiring similar proof—objective 

evidence that the plaintiff has suffered severe emotional distress. 

See Carlton, 2014 UT 6, ¶ 57 (requiring a plaintiff to “prove 

[emotional] distress by means of severe physical or mental 

manifestations” (citation omitted)); Harnicher, 962 P.2d at 71–72

(noting that “practicality demands that the standard of proof in 

such cases be more than merely subjective” and providing that the

“emotional distress suffered must be severe” based on a 

reasonable person standard (citations omitted)). The first two 

prongs of our test also support genuineness by limiting the duty 

to those relationships, activities, or undertakings that impact a 

person’s core emotional well-being and where there’s an 

especially likely risk that negligence would cause severe 

emotional distress.

¶ 89 Second, a limited emotional distress duty provides 

reasonable limitations on recovery. A main policy concern with 

bystander recovery is that “[a] defendant has no way of knowing 

the number and proximity of bystanders to any given accident 

caused by his or her negligence.” Hansen v. Sea Ray Boats, Inc., 830 

P.2d 236, 242 (Utah 1992). And a defendant lacks the techniques to 

“determin[e] or foresee[] what types of events might cause 

emotional injury to potential plaintiffs near an accident scene.” Id.

at 241. Our first prong ensures that a duty only extends to a 

plaintiff in relationships, activities, or undertakings where a 

plaintiff’s emotional well-being is implicated at the core of such 

conduct. See Hedgepeth, 22 A.3d at 812 (This rule “contains a 
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Opinion of the Court

36

self-limiting principle based on the nature of the defendant’s 

relationship with, or undertaking to, the plaintiff.”). The second 

prong guarantees that a limited emotional distress duty will only 

exist where it’s not only foreseeable, but also especially likely, that 

the defendant’s negligence will cause the plaintiff severe 

emotional distress. And recovery will still only be allowed for 

objectively verifiable severe emotional distress.

¶ 90 Finally, a limited emotional distress duty only allows 

plaintiffs to recover for a harm that’s personal to them and doesn’t

allow for vicarious recovery. The limited emotional distress duty 

analysis is centered on the category of plaintiffs. The first prong 

requires an analysis of whether a category of defendants—

engaged in the specific relationship, activity, or undertaking at 

issue—owe a duty to plaintiffs whose emotional well-being is 

necessarily implicated by the defendants’ conduct. When such a 

duty arises, the duty is owed to the plaintiff, not to a third party. 

And it must be the duty owed directly to the plaintiff that’s

breached.

IV. ADOPTING A LIMITED DUTY TO REFRAIN FROM 

RECKLESSLY INFLICTING SEVERE EMOTIONAL DISTRESS 

ON A MINOR CHILD’S NONPATIENT PARENTS BY GIVING 

RISE TO FALSE MEMORIES OR ALLEGATIONS OF 

CHILDHOOD SEXUAL ABUSE BY THE PARENT

¶ 91 Because we have determined that treating therapists owe 

a limited traditional duty, see supra ¶ 40, we must next determine 

whether treating a nonpatient parent’s child for potential sexual 

abuse by that parent is a type of relationship, activity, or 

undertaking that warrants a duty to refrain from causing severe 

emotional distress. As set out above, this determination requires a 

three-prong analysis:

(1) Does the relationship, activity, or undertaking 

“necessarily implicate the plaintiff’s emotional 

well-being?”; (2) Is there “an especially likely risk”

“that the defendant’s negligence in the course of 

performing obligations pursuant to such 

relationship[, activity,] or undertaking will result in

[severe] emotional distress?”; and (3) Do general 

public policy considerations warrant rejecting a 

limited emotional distress duty where prongs one 

and two would otherwise find one to exist?
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Opinion of the Court

37

Supra ¶ 80 (alterations in original) (first quoting Hedgepeth v. 

Whitman Walker Clinic, 22 A.3d 789, 810–11, 815 (D.C. 2011); then 

citing RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND 

EMOTIONAL HARM § 47 cmt. d (AM. LAW INST. 2012).

¶ 92 Based on the results of this three-prong test, we conclude 

that a limited emotional distress duty exists to refrain from

recklessly inflicting emotional distress by causing false memories 

or fabricated accusations of sexual abuse committed by the 

nonpatient parent.

A. Necessarily Implicates Emotional Well-Being

¶ 93 The first issue that we must decide is whether a treating 

therapist’s counseling of a minor child for potential sexual abuse 

constitutes a relationship, activity, or undertaking that necessarily 

implicates the nonpatient parent’s emotional well-being.

¶ 94 Our research hasn’t turned up any cases that answer this 

question when engaging in a purely emotional duty analysis. But 

many courts have found that a treating therapist owes a duty to 

nonpatient parents, recognizing that a child’s parent “is not a 

‘third party’ in the accepted sense.” Webb v. Neuroeducation Inc., 

P.C., 88 P.3d 417, 423 (Wash. Ct. App. 2004) (citation omitted); see 

also Roberts I, 866 N.W.2d at 469 (“The parent-child relationship is 

so fundamental to human relations that a parent cannot be 

equated with a third party in the ordinary sense.” (citation 

omitted)); supra ¶ 26 (discussing the importance of the 

parent-child relationship).

¶ 95 “A diagnosis does not by itself implicate any particular 

person as the perpetrator of the abuse.” Roberts I, 866 N.W.2d at 

469. But, after a determination has been made “that sexual abuse 

[did] in fact occur[], . . . a course of action is thereafter embarked 

upon by the [therapist] [that] is intended to, and necessarily does, 

affect both the child and his or her abuser, especially where a 

family relationship is involved.” Caryl S. v. Child & Adolescent 

Treatment Servs., Inc., 614 N.Y.S.2d 661, 666 (N.Y. Sup. Ct. 1994)

(emphasis added). And, importantly, “a patient’s parents are 

within the class of persons most likely to be implicated by the 

creation of a false memory.” Roberts I, 866 N.W.2d at 469.

¶ 96 We agree with these courts. When a therapist is treating 

a child for potential sexual abuse, the patient’s parents are not 

truly a third party in a traditional sense. The treating therapist 

“has a substantial connection to the persons most likely to be 
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Opinion of the Court

38

harmed by the implantation of the false memory: the patient’s 

parents.” Roberts I, 866 N.W.2d at 469 (citation omitted).

Moreover, the therapist is also engaging in a potentially reckless 

activity: “elect[ing] to treat a patient using techniques that might 

give rise to false memories in the patient.” Id.

¶ 97 This activity and limited relationship between 

nonpatient parent and therapist necessarily implicates the 

parent’s emotional well-being. Allegations of sexual abuse by a 

parent “strike[] at the core of a parent’s basic emotional security.” 

Id. (citation omitted). But, this activity and limited relationship 

should only give rise to a likewise limited duty. See id. at 473. 

Thus, even though we conclude below that the second and third 

prongs of our test have been satisfied, we believe that the duty 

should be limited to refraining from causing false memories or 

fabricated allegations of sexual abuse committed by the plaintiff 

nonpatient parent. Cf. id. at 473.

¶ 98 Because both the activity and limited relationship each 

necessarily implicates the parent’s emotional well-being, the first 

prong has been satisfied in the analysis of whether a duty exists to 

refrain from carelessly inflicting severe emotional distress by 

causing false memories or fabricated accusations of sexual abuse 

committed by the nonpatient parent.

B. Especially Likely That Negligence Would Cause Severe Emotional 

Distress

¶ 99 Next we must determine, using an objective standard,

whether it is especially likely that a therapist’s negligence would 

cause severe emotional distress. See supra ¶¶ 82–83. Because we 

limited our analysis in the first prong solely to refraining from 

giving rise to false memories or fabricated allegations of sexual 

abuse, our analysis in this prong will focus on whether the breach 

of that limited duty would be especially likely to cause severe 

emotional distress to the nonpatient parent.19

 

19 Situations where there’s solely a misdiagnosis of sexual 

abuse (without implicating the nonpatient parent) would not fall 

under this category. See Roberts I, 866 N.W.2d at 469 (“In the 

absence of evidence that the professional contributed to or caused 

the formation of a false memory or otherwise encouraged the 

patient to falsely implicate his or her parents, the mere diagnosis 
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39

¶ 100 A patient’s parents are the people most often accused 

when there are implanted memories of sexual abuse in children. 

Roberts I, 866 N.W.2d at 469. In cases where a parent is falsely 

accused of sexual abuse, it is especially likely, if not practically 

inevitable, that the parent will suffer severe emotional distress. 

“‘Discovery’ of past sexual abuse necessarily entails the probable 

destruction of the patient’s relationship with that parent.” Trear v. 

Sills, 82 Cal. Rptr. 2d 281, 288 (Cal Ct. App. 1999). What’s more, 

“[i]t is generally foreseeable that emotional distress would 

accompany the prolonged separation of a parent and child.” 

Miranda v. Said, 836 N.W.2d 8, 32 (Iowa 2013) (citations omitted).20

¶ 101 Moreover, “[i]t is indisputable that being labeled a 

child abuser [is] one of the most loathsome labels in society and 

most often results in grave physical, emotional, professional, and 

personal ramifications.” Hungerford v. Jones, 722 A.2d 478, 480 

(N.H. 1998) (second alteration in original) (emphases added) 

(citation omitted) (internal quotation marks omitted). “[T]hose 

accused of sexual assault feel the pain and stigma associated with 

the accusations.” Sawyer v. Midelfort, 595 N.W.2d 423, 431 (Wis. 

1999) (citation omitted). “It takes very little imagination to 

recognize the damning horror that must ensue to a parent falsely

accused of child molestation.” Trear, 82 Cal. Rptr. 2d at 285

(citation omitted). It’s especially likely that the falsely accused 

parent will suffer severe emotional distress as a result of these 

social consequences.

 

of childhood sexual abuse as the underlying cause of a mental 

disorder does not result in a direct foreseeable harm to the 

patient’s parents.”)

20 This limited emotional distress duty won’t give rise to 

damages for loss of consortium. See UTAH CODE § 30-2-11 

(allowing loss of consortium claim for spouse but requiring 

specific injuries to a spouse and noting that loss of consortium is a 

derivative claim); Benda v. Roman Catholic Bishop of Salt Lake City, 

2016 UT 37, ¶ 20, 384 P.3d 207 (recognizing a loss of consortium 

claim for minor child but requiring the same injury threshold as 

Utah Code section 30-2-11 and noting that the claim is a derivative 

claim). But severe emotional distress that arises from the 

separation of the parent and child is compensable. Supra ¶ 86.
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Opinion of the Court

40

¶ 102 Overall, it’s especially likely that a therapist’s 

negligence, resulting in a minor child having false memories of 

sexual abuse by the parent, will cause severe emotional distress in 

the parent. Therefore, the second prong in the analysis of whether 

a duty exists to refrain from carelessly inflicting severe emotional 

distress by causing false memories or fabricated accusations of 

sexual abuse committed by the nonpatient parent has been 

satisfied. 

C. Public Policy Considerations

¶ 103 The final issue is whether public policy considerations 

weigh against recognizing a limited emotional distress duty. Our 

analysis of the public policy considerations will closely mirror the 

analysis in the fifth Jeffs factor, with special consideration to any 

public policy concerns specifically implicated by a limited 

emotional distress duty, in conjunction with the three overarching 

policy concerns that frame our negligent infliction of emotional 

distress case law. See supra ¶ 84.

¶ 104 As set out in Part I.B.3, the general policy 

considerations don’t warrant a complete abdication of a

traditional duty in this case. However, the policy considerations 

do warrant limiting the traditional duty to refraining from 

recklessly causing false memories or fabricated allegations of 

sexual abuse. Supra ¶ 32. Other than the potential that a duty

would “chill” a therapist’s treatment of the child, none of these 

policy considerations—the social utility of treating and 

eradicating sexual abuse, the notion that a duty would place the 

interests of third parties above the interests of the child, the 

confidentiality and openness of the therapist-patient relationship, 

the inexactness of therapy, and the policy behind the reporting 

immunity statute—requires special consideration when used to 

implicate an emotional duty. Just as in the traditional duty 

context, these policy considerations don’t support completely 

eliminating an emotional duty.

¶ 105 As even Mr. Mower acknowledges, therapists are less 

likely to cause physical injuries than emotional injuries. Logically, 

a “chilling” effect on the therapy is much more likely to occur if a 

therapist is burdened with potential liability for a third party’s 

emotional damages. But the limited emotional distress duty that 

we find in this case won’t punish a therapist who comports with 

the standards required by the practice of his or her profession:
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Opinion of the Court

41

Importantly, it is not just the nature of the 

relationship that supports emotional distress 

damages, but the high likelihood of such damages 

from negligent acts engaged in by the [therapist]. 

The duty arises when those acts are illegitimate and, 

if pursued, are especially likely to produce serious 

emotional harm. Therefore, the standard is not one 

that threatens [therapy], but is consistent with the 

ideals that protect the integrity of [therapy].

Miranda, 836 N.W.2d at 33 (discussing this concept in regards to 

the practice of law).

¶ 106 While the policy considerations don’t support

eliminating an emotional duty, they do require imposing the same 

limitations on the emotional duty as they do on the traditional 

duty. Thus, that determination doesn’t end our analysis. We must 

still consider whether any of the three overarching policy 

concerns from our negligent infliction of emotional distress case 

law mandate a different result.

¶ 107 One concern is the genuineness of claims, both in terms 

of their existence and in causation. Supra ¶ 59. But we have no 

doubt about the genuineness of the claims that will arise under 

this duty. “We are quite confident that negligent treatment which 

encourages false accusations of sexual abuse is highly culpable for 

the resulting injury.” Sawyer, 595 N.W.2d at 433. Moreover, “we 

doubt that there is a significant possibility of fraud when a claim 

is based upon accusations of abuse, particularly in light of the 

extraordinary stigma our society places upon those accused of 

sexually abusing a child.” Id. at 434. And a plaintiff will still be 

required to offer objective evidence of the severe emotional 

distress suffered. Supra ¶ 88.

¶ 108 Another concern is setting “reasonable limitations on 

recovery, both in terms of the potential class of victims and the 

severity of the harm required.” Supra ¶ 59. The potential class of 

victims is limited because a claim “may be brought only by those 

who have been wrongfully accused of sexually abusing their 

[child], not by the unknown numbers of individuals whose 

relationship with the patient is negatively affected by the 

[reckless] therapy.” See Sawyer, 595 N.W.2d at 434. And the 

severity of the harm hasn’t changed: the plaintiff must still 

establish that he or she has suffered severe emotional distress. 
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Opinion of the Court

42

Supra ¶ 77. Thus, the second general policy concern doesn’t

support eliminating a duty.

¶ 109 The final concern we address is whether plaintiffs 

should only be allowed to recover for a breach of a duty owed to 

them. Supra ¶ 59. The duty established here is owed not to the 

child, but to the parent directly. Supra ¶ 90. Thus, the parent will 

be recovering for a duty owed directly to him or her, satisfying 

this policy concern.

¶ 110 For these reasons, the special policy considerations 

don’t warrant removing liability. Thus, we conclude that a 

treating therapist has a duty to a minor child’s parents to refrain 

from recklessly giving rise to false memories or fabricated 

allegations of sexual abuse committed by the plaintiff nonpatient 

parent through affirmative acts.

¶ 111 We recognize that this conclusion is contrary to some 

jurisdictions that preclude all liability for therapists who 

misdiagnose or give rise to false memories or fabricated 

allegations of childhood sexual abuse. See, e.g., Trear, 82 Cal. Rptr. 

2d at 283 (holding that a therapist has no duty to the parent of an 

adult patient for allegedly false recovered memories of sexual 

abuse); Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1171 (Pa. 

2000) (finding no “duty of care beyond that owed to the patient”); 

Flanders v. Cooper, 706 A.2d 589, 589, 592 (Me. 1998) (concluding 

that a therapist owed no duty of care to the father of a child to 

avoid causing false memories of sexual abuse); Zamstein v. 

Marvasti, 692 A.2d 781, 789 (Conn. 1997) (refusing to recognize a 

cause of action against a therapist whose incorrect evaluations led 

to false charges of sexual assault).

¶ 112 But other jurisdictions have come to a similar 

conclusion that a therapist may be held liable. See, e.g., Roberts I, 

866 N.W.2d at 473 (“{A] mental health professional has a limited 

duty to his or her patient’s parents; namely, a duty to ensure that 

the professional’s treatment does not give rise to false memories 

of childhood sexual abuse.”); Sawyer, 595 N.W.2d at 430, 436 

(imposing liability on a therapist for “damages stemming from 

injuries caused by a patient’s false memories of abuse” (citation 

omitted)); Hungerford, 722 A.2d at 482 (recognizing “a duty of care 

on therapists who elect to publicize accusations of sexual abuse 

against parents, or who encourage patients to do so”); Caryl S., 

614 N.Y.S.2d at 666 (“[W]hen a professional becomes involved in a 

case where child sexual abuse is suspected, care must be taken in 
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Opinion of the Court

43

investigating and evaluating such a claim and in reaching the 

conclusion that such abuse did take place.”). The jurisdictions that 

have recognized liability haven’t created significant limitations on 

the damages recoverable. But see Sawyer, 595 N.W.2d at 431, 434 

(noting that “[t]he harm arising from the loss of a daughters’ [sic]

companionship is different than the harm that arises from 

accusations of sexual assault” and finding that those claims are 

“not tied to personal relationships, but rather to accusations of 

abuse”).

¶ 113 The approach we’ve taken today serves as a middle 

ground between the two: we recognize a limited duty to refrain 

from recklessly causing a nonpatient parent physical harm to his 

or her body or property or severe emotional distress by giving rise 

to false memories or fabricated allegations of sexual abuse

committed by that parent through affirmative acts when treating 

the parent’s minor child.21 Our approach is consistent with our 

case law on duty, negligent infliction of emotional distress, and 

public policy.

CONCLUSION

¶ 114 The question before us today is “whether a [treating 

therapist] has the unfettered right to treat his or her patient using 

techniques that might cause the patient to develop a false memory

[or allegations] of sexual abuse.” Roberts I, 866 N.W.2d at 472. We 

 

21 Although we’ve clearly established when a plaintiff may and 

may not recover for negligent infliction of emotional distress, 

we’ve yet to consider whether this claim is truly a separate cause 

of action that must be independently pled, or whether it is a 

species of negligence that can be pled as part of such a claim. 

Because Mr. Mower has only pled medical malpractice (a 

negligence claim) and not a separate negligent infliction of 

emotional distress claim, we recognize that he might be unable to 

recover under an expanded duty for emotional distress. However, 

we’re presented with a limited task—determining if the district 

court erred in holding that no duty existed. We leave it to the 

district court to decide in the first instance if Mr. Mower must

plead a claim for negligent infliction of emotional distress to 

recover for such a duty and, if so, if Mr. Mower should be 

permitted to amend his complaint.
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Opinion of the Court

44

conclude that they don’t. Treating therapists are obligated to 

conform to a standard of care when treating their patients. A 

therapist further 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. If the therapist breaches that duty in a way that causes a 

parent to suffer physical injury, property damage, or severe 

emotional distress that manifests itself through severe mental or 

physical symptoms, the therapist may be liable for those damages.

The matter is remanded to the district court for further 

proceedings consistent with this opinion.