Wagner v. State

122 P.3d 599 (2005)

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Nature of the Case

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Facts

P was standing in a customer service line at K-Mart when she was suddenly and inexplicably attacked from behind. Sam Giese, a mentally disabled patient of the Utah State Development Center (D), 'became violent, took P by the head and hair, threw her to the ground, and otherwise acted in such a way as to cause serious bodily injury to her. D employees had accompanied Mr. Giese to K-Mart as part of his treatment program and had remained in K-Mart to supervise him. While sudden, this was not altogether unpredictable. Mr. Giese had a history of violent conduct and presented a potential danger to the public if not properly supervised. P filed a complaint against D for failing to 'properly supervise the activity of' Mr. Giese while he was in its care. D moved to dismiss in that P's injuries arose out of a battery, a tort for which the government is immune from suit. The district court dismissed the complaint, holding that because Giese initiated contact with 'deliberate' intent, his attack constituted a battery and the government was immune under the statute. P appealed.