Cabaness v. Thomas

2010 UT 23
232 P.3d 486
AMENDED OPINION*
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Kipp Cabaness, an individual, 	No. 20080446
and Does 1-20,
Plaintiffs and Appellants,
v.
Brent Thomas, an individual;
Clifford C. Michaelis, an
individual; Bountiful City, a
Municipal Corporation;
Bountiful City Power; and 	F I L E D
Does 1-100,
Defendants and Appellees. 	April 23, 2010
---
Second District, Farmington
The Honorable Glen R. Dawson
No. 040700494
Attorneys: 	Craig L. Taylor, Harold H. Armstrong, Willis F.
McComas, Kaysville, for plaintiffs
Stanley J. Preston, Maralyn M. Reger, Bryan M. Scott,
Salt Lake City, for defendants Brent Thomas and
Clifford C. Michaelis
Russell L. Mahan, Bountiful, for defendants Bountiful
City and Bountiful City Power
---
PARRISH, Justice:
INTRODUCTION
¶1 	Kipp Cabaness brought intentional infliction of
emotional distress claims against Brent Thomas and Clifford C.
Michaelis for allegedly engaging in a pattern of harassment,
intimidation, and abuse at his workplace. 	Additionally, Cabaness
brought breach of contract and wrongful termination claims
* Changes were made in paragraphs 2, 17, 23, 47, 71 and 76. 	Also
in footnotes 3, 7, and 9.

No. 20080446 	2
against Bountiful Light & Power (“Bountiful Power”). 	The
district court granted summary judgment in favor of Thomas,
Michaelis, and Bountiful Power (collectively “Defendants”) on
each of Cabaness’ claims. 	Cabaness subsequently filed a motion
under Utah Rules of Civil Procedure 59 and 60(a) to amend or
alter judgment. 	The district court denied the motion.
¶2 	Cabaness appeals the district court’s summary judgment
ruling in favor of Defendants, denial of his cross motion for
partial summary judgment, and denial of his motion under Utah
Rules of Civil Procedure 59 and 60(b). 	We affirm in part and
reverse in part.
BACKGROUND
¶3 	“On appeal from a summary judgment we accept the facts
and inferences in the light most favorable to the losing party.”
Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT
25, ¶ 32, 21 P.3d 198 (internal quotation marks omitted). 	We
therefore state the facts in the light most favorable to
Cabaness.
¶4 	Kipp Cabaness was employed by Bountiful Power from
March 1978 to January 2004. 	From time to time, Cabaness was
given a copy of the Personnel Policies & Procedures Manual of the
City of Bountiful (the “Employee Manual” or “Manual”). 	The
Employee Manual states that it is “specifically intended to apply
to regular employees.” 	Defendants do not dispute that Cabaness
was a “regular employee” as that term is defined within the
Employee Manual. 	The Employee Manual contains a disclaimer
stating that “[n]o contract exists between Bountiful City and its
employees with respect to salary, salary ranges, movement within
salary ranges, or employee benefits.” 	Section 406 of the Manual,
entitled “Work Environment,” states that “City policy will not
tolerate verbal or physical conduct by any employee which
harasses, disrupts, or interferes with another’s work performance
or which creates an intimidating, offensive, or hostile
environment . . . .” 	Section 408, entitled “Work Place
Violence,” mandates that “[o]ral or written threats, physical
assault, harassment, intentional damage, and every other act or
threat of violence by City employees is strictly prohibited.”
Section 409, entitled Sexual and Other Harassment, provides as
follows:
Any behavior or conduct of a harassing
or discriminating nature . . . which is
pervasive, unwelcome, demeaning, ridiculing,
derisive or coercive, or results in a

3 	No. 20080446
hostile, abusive or intimidating work
environment constitutes harassment and shall
not be tolerated by the City.
. . .
No City official or employee shall
harass, coerce, intimidate, threaten or
discipline employees who exercise their
rights under this procedure in good faith.
¶5 	From 1984 to 2004, Cabaness was a line working foreman
at Bountiful Power under the immediate supervision of Brent
Thomas, the superintendent of operations. 	The director of
Bountiful Power and Thomas’ direct supervisor was Clifford
Michaelis. 	While Michaelis had authority to hire and fire
employees, Thomas did not.
¶6 	Numerous employees at Bountiful Power testified that
Thomas frequently used gross profanity and consistently verbally
harassed, intimidated, and ridiculed the employees he supervised.
To his subordinates, Thomas was known as “Little Hitler” or “Dr.
Jekyl and Mr. Hyde,” and the walkway to his office was known as
the “green mile,” a name from a movie depicting the pathway to
the electric chair in a prison.
¶7 	Thomas frequently made the work of his subordinates
harder without providing any justification for doing so other
than to assert his authority over them. 	For example, in the late
1990s, Cabaness’ crew and another crew were pulling in
underground wire at a high school. 	Cabaness and the other
foreman had positioned the trucks and other equipment to begin
pulling the wire when Thomas arrived and ordered that the trucks
and other equipment be repositioned. 	When Cabaness and the other
foreman questioned why, Thomas responded that he was the boss,
and if they did not do what he said, he would write them up for
insubordination, and they might be fired. 	Similarly, in 2000 or
2001, Cabaness and his crew were building a transmission line and
had just finished framing a pole. 	As the crew went to set it
into the ground, Thomas arrived and ordered them to disassemble
the pole and to frame another identical pole to set in its place.
Again, when Thomas was asked why, he gave no explanation other
than that was what he wanted to happen.
¶8 	Thomas’ conduct also evinced a disregard for safety
procedures in an occupation that relies on such procedures to
protect its employees. 	Around 1983 or 1984, Thomas refused to
let Cabaness put a ground on a pole with a primary line of 7200

1 Defendants argue that we should not consider evidence from
the Bountiful Power Safety Committee’s report because it
constitutes inadmissible hearsay. 	We disagree inasmuch as the
the factual findings of the committee fall under the Public
Records and Reports exception to the hearsay rule. 	See Utah R.
Evid. 803(8).
No. 20080446 	4
volts before working on it in order to save time. 	On another
occasion, Thomas ignored for several months Cabaness’ concerns
regarding blown fuses on a power line near an elementary school
that Cabaness felt were potentially hazardous for children.
Although emergencies sometimes required Bountiful Power employees
to work in the rain, Thomas would order crews to work in the rain
even when the work could have been postponed and completed more
safely in drier conditions. 	Thomas dismissed the employees’
concerns by telling them that he had bought them rain gear and
they should use it. 	As safety director, Cabaness held monthly
safety meetings, but Thomas routinely cut the meetings short.
¶9 	In July 2003, Thomas ordered Brent Tuttle, a member of
Cabaness’ crew, to remove concrete from around a conduit of live,
primary electrical distributors using a jackhammer. 	Tuttle
testified that he told Thomas this was unsafe and that he could
be killed if the jackhammer broke through and touched the live
line, but Thomas ordered him to do it anyway. 	Fearing for his
job, and based on past intimidation from Thomas, Tuttle
jackhammered the concrete. 	The operation was fortunately shut
down before anyone was actually injured. 	Cabaness was not
present during this incident and did not become aware of it until
he returned to work more than a month after the incident
occurred. 	After the incident took place, the Bountiful Power
Safety Committee investigated and, among other things,
recommended that Thomas be given a Serious Safety Violation
citation. 1
¶10 	On a regular basis, Thomas would tell Cabaness that he
was “lucky to have this job” and that if he did not do what he
was told he could be fired even though Thomas lacked the
authority to do so. 	Indeed, many employees at Bountiful Power
testified that Thomas regularly threatened to fire them. 	On one
occasion, Thomas walked up to a new employee and told him he was
fired and only later told the employee he was not serious.
¶11 	Throughout Cabaness’ career with Bountiful Power,
Thomas would insult and demean him by, among other things,
calling him “dumbass,” “jackass,” and “asshole,” and using
cutting sarcasm. 	Thomas would occasionally tell Cabaness that he
had a “piss poor attitude.” 	On one occasion, Thomas told

2 Michaelis disputes that this is the message he intended to
convey to Cabaness and the other two foremen. 	He does not,
however, dispute that it is possible that they may have come away
from the conversation with that understanding.
5 	No. 20080446
Cabaness, “You know what your problem is? It’s your wife. 	You
need to get rid of your wife.” 	Thomas pursued this subject until
Cabaness finally responded “my wife is none of your business and
my relationship with my wife is none of your business, so drop
it.” 	On another occasion, Cabaness witnessed Thomas knee an
employee in the groin with enough force to cause the employee to
fall to the floor in pain, after which Thomas stated, “I guess I
showed you who is boss.”
¶12 	In August 1997, Cabaness was first diagnosed with
depression related to “unusual stress in his work environment
from his supervisor.” 	In June 2003, Cabaness met with Dr.
VandeMerwe who also diagnosed him with major depression and
chronic dysthymia with insomnia. 	Dr. VandeMerwe testified that
Cabaness’ work environment and abusive boss were a “substantial
factor” in his diagnosis of depression. 	Cabaness was off work
from July 23 to September 8, 2003, due to medically-diagnosed
depression attributable in significant part to “a hostile work
environment and an abusive boss.” 	Thomas and Michaelis were both
aware that Cabaness was off work for depression-related problems.
Yet, when Cabaness returned to work in September 2003, Thomas
singled him out in an employee meeting, threatened to fire him,
and criticized him about personal issues in front of other
employees.
¶13 	Numerous employees, including Cabaness, complained to
Michaelis on various occasions regarding Thomas’ abusive,
harassing, and intimidating conduct. 	In 1997, Cabaness and two
other foremen complained to Michaelis about Thomas. 	In response,
Michaelis warned them that any further complaints regarding
Thomas’ conduct may result in their termination. 2 	Finally, in
September 2003, after Thomas’ involvement in the jackhammer
incident, Michaelis formed a committee to investigate complaints
of harassment and intimidation by Thomas. 	The committee
interviewed fifteen Bountiful Power employees. 	As a result of
the investigation, Michaelis sent a letter to Thomas warning him
that his “intimidation need[ed] to stop,” and that if he was
unwilling to make a “lifetime change” he would be forced into
retirement.
¶14 	Cabaness quit working for Bountiful Power in January of
2004. 	Between the summer of 2003 and the spring of 2004, all but

No. 20080446 	6
two of the Bountiful Power employees on Thomas’ crew quit,
primarily due to Thomas’ abusive conduct.
¶15 	Based on the above facts, Cabaness brought intentional
infliction of emotional distress claims against Thomas and
Michaelis, a breach of contract claim against Bountiful Power for
failure to enforce provisions of the Employee Manual, and a
wrongful termination claim against Bountiful Power.
¶16 	The district court entered summary judgment in favor of
Bountiful Power, Thomas, and Michaelis holding that as a matter
of law (1) Cabaness failed to demonstrate that Thomas’ and
Michaelis’ conduct was extreme, intolerable, and outrageous and
therefore Cabaness could not prove intentional infliction of
emotional distress; (2) the Employee Manual did not create a
contract between Bountiful Power and Cabaness; and (3) Cabaness
failed to allege any violation of a clear and substantial public
policy and therefore could not succeed on his wrongful
termination claim. 	After the district court entered its order
granting summary judgment, Cabaness filed a rule 59 and 60(b)
motion pursuant to the Utah Rules of Civil Procedure to alter or
amend the district court’s final order based on purported new law
and newly discovered evidence. 	In conjunction with the rule 59
and 60(b) motion, Cabaness filed affidavits from Bountiful City
employees Kenneth Mears and Bonnie Quinn (the “city employee
affidavits”) that addressed the City’s intent regarding the
binding nature of the Manual. 	The district court found that the
affidavits were untimely and denied the motion.
¶17 	Cabaness appealed the district court’s grant of
Defendants’ motion for summary judgment, denial of his cross
motion for partial summary judgment, and denial of his rule 59
and 60(b) motion. 	We have jurisdiction under Utah Code section
78A-3-102(3)(j) (2008).
STANDARD OF REVIEW
¶18 	Summary judgment is appropriate only if “there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” 	Utah R. Civ. P.
56(c). 	“Because we resolve only legal issues in reviewing a
summary judgment, we give no deference to the [district] court’s
view of the law; we review it for correctness.” 	Franco v. Church
of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 32, 21 P.3d
198 (internal quotation marks omitted). 	“In reviewing a grant of
summary judgment, we determine only whether the [district] court
erred in applying the governing law and whether the [district]
court correctly held that there were no disputed issues of

7 	No. 20080446
material fact.” 	Ryan v. Dan’s Food Stores, Inc., 972 P.2d 395,
400 (Utah 1998) (internal quotation marks omitted).
ANALYSIS
¶19 	We begin by addressing Defendants’ preliminary argument
that we should strike Cabaness’ appellate brief and assume the
correctness of the district court’s decision. 	We conclude that
Cabaness’ appellate brief should not be stricken and then proceed
to consider Cabaness’ (1) intentional infliction of emotional
distress claim, (2) implied contract claim, and (3) wrongful
constructive termination claim.
I. 	BECAUSE CABANESS’ APPELLATE BRIEF IS ADEQUATE, WE DECLINE TO
ASSUME THE CORRECTNESS OF THE JUDGMENT BELOW
¶20 	Defendants argue that we should disregard Cabaness’
appellate briefs and assume the correctness of the judgment below
pursuant to Utah Rule of Appellate Procedure 24 and the court of
appeals’ analysis in Koulis v. Standard Oil Co., 746 P.2d 1182
(Utah Ct. App. 1987). 	Rule 24 provides, in relevant part, that
“[a]ll statements of fact and references to the proceedings below
shall be supported by citations to the record,” and the argument
section must contain relevant “citations to the authorities,
statutes, and parts of the record relied on.” 	Utah R. App. P.
24(a)(7), (9). 	In Koulis, the court of appeals relied on rule 24
when it sua sponte disregarded the brief of a party where the
brief was “filled with burdensome, emotional, immaterial and
inaccurate arguments,” and “only a small proportion of
authorities cited . . . [bore] any resemblance to the
propositions for which they [were] cited.” 	746 P.2d at 1185. 	It
is true that “this court need not, and will not consider any
facts not properly cited to, or supported by, the record,”
Carrier v. Salt Lake County, 2004 UT 98, ¶ 21, 104 P.3d 1208
(internal quotation marks omitted). 	Moreover we may “assume the
correctness of the judgment below” when a party fails to provide
a proper statement of facts supported by accurate citations to
the record. 	Koulis, 746 P.2d at 1185 (citing Fackrell v.
Fackrell, 740 P.2d 1318, 1319 (Utah 1987)). 	In this case,
however, Cabaness’ brief does not rise to that level.
¶21 	In Carrier, we declined to strike a party’s brief where
the “brief as a whole [was] supported by the record, and the
[party made] good faith arguments that [were] adequately
supported by case law.” 	2004 UT 98, ¶ 19. 	Similarly, although
the facts and arguments in Cabaness’ brief are, at times, tainted
with his emotional bias, when considered as a whole, his
statement of facts is supported by the record and he presents

3 Defendants also argue that we should not consider evidence
set forth in the Report and Affidavit of Dr. Hawks (collectively
the “Hawks report”). 	It is unclear from the record whether the
district court in fact struck the Hawks report. 	However, because
our holding today is the same whether or not we consider the
evidence contained in the Hawks’ report, we need not address
defendants’ arguments regarding its admissibility.
No. 20080446 	8
good faith legal arguments that are adequately supported by case
law. 	Further, Cabaness’ brief is replete with citations to the
record that allow us to determine the accuracy and relevance of
the statements it contains. 	Therefore, we decline Defendants’
invitation to strike Cabaness’ brief.
II. WE AFFIRM IN PART AND REVERSE IN PART THE DISTRICT COURT’S
GRANT OF SUMMARY JUDGMENT AGAINST CABANESS ON HIS CLAIM FOR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
¶22 	Cabaness argues that the district court erred in
granting Defendants’ motion for summary judgment on his
intentional infliction of emotional distress claims against
Thomas and Michaelis. 	The district court held that Thomas’ and
Michaelis’ conduct was not outrageous and intolerable, and
therefore, Cabaness’ claim for intentional infliction of
emotional distress failed as a matter of law. 	Before reaching
the merits of the district court’s decision, we first address the
parties’ preliminary arguments regarding what evidence Cabaness
may rely on to demonstrate intentional infliction of emotional
distress. 	Specifically, Defendants argue that Cabaness may not
rely on (1) any conduct that occurred outside the applicable
statute of limitations period, (2) any conduct that occurred
outside of Cabaness’ presence, and (3) any evidence contained in
the affidavit of Steve Knighton, another foreman for Bountiful
Power. 3 	After addressing these preliminary evidentiary issues,
we turn to the merits of the district court’s denial of Cabaness’
intentional infliction of emotional distress claims.
A. 	The Applicable Statute of Limitations Does Not Preclude
Cabaness From Relying on the Defendants’ Entire Course of Conduct
¶23 	Defendants do not argue that Cabaness failed to assert
his intentional infliction of emotional distress claim before the
statute of limitations had run. 	Rather, they argue that Cabaness
may only seek redress for Defendants’ actions committed between
the four-year period of March 31, 2000, to March 31, 2004, the
latter being the date on which Cabaness filed his Complaint.
Under Defendants’ theory, each distinct act that allegedly
inflicted emotional distress constituted a separate tort that

4 This statute has been re-codified at Utah Code Ann. § 78B-
2-307 (2008). 	However the substance remains the same as the 2002
verison in effect at the time this case was heard.
9 	No. 20080446
started the running of a separate four-year statute of
limitations. 	Therefore, under Defendants’ theory, any evidence
of conduct that occurred prior to March 31, 2000, is inadmissible
to demonstrate intentional infliction of emotional distress.
Cabaness, on the other hand, argues that the intentional
infliction of emotional distress constituted a continuous and
ongoing tort, and therefore, he may offer evidence of the entire
pattern of mistreatment and abuse in attempting to prove his
claim. 	We agree with Cabaness.
¶24 	Claims for intentional infliction of emotional distress
are subject to a four-year statute of limitations. 	See Utah Code
Ann. § 78-12-25(3) (2002). 4 	“Under Utah law, the statute of
limitations begins to run when the cause of action accrues.”
Retherford v. AT&T Commc’ns, 844 P.2d 949, 975 (Utah 1992). 	A
claim of intentional infliction of emotional distress usually
accrues when a plaintiff suffers extreme emotional distress.
However, as we noted in Retherford, there are occasions when
“emotional distress does not so much occur as unfold--for
example, where a defendant subjects a plaintiff, not to a single
outrageous act, but to a pattern or practice of acts tolerable by
themselves though clearly intolerable in the aggregate.” 	Id.
Faced with this dilemma, we held in Retherford that “the statute
of limitations for intentional infliction of emotional distress
does not begin to run until the distress is actually inflicted,
i.e., when the plaintiff suffers severe emotional disturbance.”
Id. 	However, we noted that “[a]lthough easy to describe, this
standard is difficult to apply, particularly because the element
of emotional distress is specific to the plaintiff in each case.”
Id.
¶25 	In Hatch v. Davis, 2004 UT App 378, 102 P.3d 774, the
court of appeals struggled to apply the standard set forth in
Retherford to a similar set of facts. 	Unable to determine when
the emotional distress was actually inflicted, the court of
appeals held that “when conduct that would give rise to a claim
of intentional infliction of emotional distress is continuous and
ongoing, and it is unclear when the plaintiff suffered severe
emotional distress, the statute of limitations begins to run from
the time the last injury is suffered or the tortious conduct
ceases.” 	Hatch, 2004 UT App 378, ¶ 44. 	Like the court of
appeals, we find the standard set forth in Retherford to be
burdensome and generally unhelpful when confronted with

5 The rule in Retherford functioned well in that case
because (1) it was relatively easy to determine when emotional
distress was inflicted and (2) the moment that plaintiff suffered
severe emotional distress directly corresponded to the complete
abatement of the defendants’ tortious conduct.
6 This recovery rule we announce today is specific to a
claim for intentional infliction of emotional distress that
arises from a defendant’s continuous tortious conduct. 	The
ability to recover for the entire course of a defendant’s conduct
may not apply in other types of continuing torts, such as a
continuing trespass or continuing nuisance. 	See, e.g., Breiggar
Properties, L.C., v. H.E. Davis & Sons, Inc., 2002 UT 53, ¶ 11,
52 P.3d 1133 (limiting recovery for a continuing trespass to the
three years proceeding the date the cause of action was filed);
(continued...)
No. 20080446 	10
allegations of a pattern of continuous and ongoing conduct
resulting in intentional infliction of emotional distress. 5
¶26 	However, while the standard set forth by the court of
appeals in Hatch is an improvement from the Retherford rule, it
is unduly constrained by the qualifier that it applies only in
cases where there is uncertainty as to the moment a plaintiff
suffered severe emotional distress. 	Therefore, like many other
jurisdictions, we now hold that when a claim of intentional
infliction of emotional distress is alleged based on a pattern of
continuous and ongoing tortious conduct, the statute of
limitations begins to run at the time the last injury occurred or
the tortious conduct ceases. 	See, e.g., Curtis v. Firth, 850
P.2d 749, 755 (Idaho 1993) (noting that the “concept of
continuing tort . . . should be extended to apply in other
limited contexts, including particularly intentional infliction
of emotional distress”); Feltmeier v. Feltmeier, 798 N.E.2d 75,
89 (Ill. 2003) (stating that a claim of intentional infliction of
emotional distress is a “continuing tort,” and therefore, “a
plaintiff’s cause of action accrues, and the statute of
limitations begins to run, at the time the last injurious act
occurs or the conduct is abated”); McCorkle v. McCorkle, 811 So.
2d 258, 264 (Miss. Ct. App. 2001) (explaining that a claim for
intentional infliction of emotional distress was a continuing
tort, and therefore, the statute of limitations began to run from
the date of the last injury).
¶27 	We further hold that a plaintiff alleging an
intentional infliction of emotional distress claim based on a
defendant’s ongoing and continuous conduct may recover for the
entire course of defendant’s conduct. 6 	Other jurisdictions are

6 (...continued)
see also Huffman v. United States Postal Service, 82 F.3d 702,
705 (6th Cir. 1996)(limiting recovery for a continuing nuisance
claim to the “limitations period immediately preceding the
initiation of the action”).
11 	No. 20080446
in accord with such an approach. 	See, e.g., Feltmeier, 798
N.E.2d at 85-89 (holding that a spouse’s conduct throughout an
eleven-year marriage could be considered an intentional
infliction of emotional distress claim because the claim was a
continuing tort); McCorkle, 811 So. 2d at 264 (noting that
“recovery [on acts outside the limitations period] is permitted
on the theory that all violations are part of one continuing
act”); GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 615 (Tex. 1998)
(“When . . . repeated or ongoing harassment is alleged, the
offensive conduct is evaluated as a whole.” (citations omitted)).
¶28 	In this case, the district court failed to make any
determination regarding when the statute of limitations began to
run on Cabaness’ intentional infliction of emotional distress
claim. 	Under our clarification of the rule today, the
limitations period on Cabaness’ claim began to run on January 2,
2004, the date on which Cabaness resigned from Bountiful Power,
and his exposure to Defendants’ conduct ceased. 	Cabaness brought
this action in March 2004 and is therefore not barred by the
statute of limitations. 	Further, because Cabaness alleges a
pattern of continuous and ongoing maltreatment, he is not limited
to showing Defendants’ tortious conduct within a four-year
period. 	Rather, he may support his claim with evidence of
Defendants’ entire course of conduct.
B. 	Cabaness Cannot Avail Himself of the Exception to the
“Presence” Requirement
¶29 	Defendants argue, and the district court agreed, that
Cabaness could not rely on Defendants’ conduct that occurred
outside his presence. 	Specifically, Defendants argue that
Cabaness may not rely on the jackhammer incident to demonstrate
intentional infliction of emotional distress.
¶30 	“[C]onduct which occurs outside the presence of a
plaintiff may not contribute to a claim of intentional infliction
of emotional distress except under particularly compelling
circumstances.” 	Hatch v. Davis, 2006 UT 44, ¶ 26, 147 P.3d 383.
In considering whether conduct triggers the
exception [to the “presence” rule], a finder
of fact may consider (1) the relationship of

7 We note, however, that there is nothing that prevents
Cabaness from offering evidence of the jackhammer incident, or
other conduct that occurred outside Cabaness’ presence, in
connection with his breach of contract claim discussed in Part
III of this opinion.
No. 20080446 	12
the target of the conduct to the plaintiff,
(2) the relationship between the person
committing the conduct and the plaintiff, and
(3) the egregiousness of the conduct.
Finally, (4) a plaintiff must establish that
the conduct was undertaken, in whole or in
part, with the intention of inflicting injury
to the absent plaintiff.
Id. ¶ 27. 	Applying these factors, the district court found that
the jackhammer incident was inadmissible for purposes of
demonstrating extreme and outrageous conduct because Cabaness
failed to demonstrate that Thomas’ conduct was intended “in whole
or part” to injure Cabaness. 	We agree. 	At the time the
jackhammer incident took place, Cabaness was on medical leave for
depression. 	Cabaness did not find out about the jackhammer
incident until a few weeks after the incident occurred, at which
time he alleged that he broke down in tears. 	While the
jackhammer incident may have caused Cabaness to suffer emotional
distress, there is no direct evidence that Thomas intended his
conduct to inflict injury on Cabaness. 	We therefore hold that
the district court did not err in excluding evidence of the
jackhammer incident to prove Cabaness’ claim of intentional
infliction of emotional distress. 7
C. 	Evidence of Defendants’ Conduct Contained in the Knighton
Affidavit Is Admissible
¶31 	Cabaness argues that the district court erred when it
determined that the “majority of the allegations made by Mr.
Knighton [in his affidavit] are conclusory” and therefore
inadmissible. 	A district court’s refusal to consider evidence or
to exclude evidence is reviewed under an abuse of discretion
standard. 	Daines v. Vincent, 2008 UT 51, ¶ 21, 190 P.3d 1269
(“With regard to our review of the exclusion of evidence, we
grant a trial court broad discretion to admit or exclude evidence
and will disturb its ruling only for abuse of discretion.”).
¶32 	The district court found that the “majority of the
allegations made by Mr. Knighton are conclusory and insufficient
to support a finding that Mr. Thomas engaged in the requisite
extreme and outrageous conduct necessary to constitute a claim

13 	No. 20080446
for intentional infliction of emotional distress.” 	Although we
agree that by itself Mr. Knighton’s affidavit does not suffice to
prove intentional infliction of emotional distress, we disagree
that all of the evidence therein is inadmissible.
¶33 	“Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.”
Utah R. Civ. P. 56(e). 	Affidavits reflecting an affiant’s
unsubstantiated conclusions and opinions are inadmissible. 	See
Murdock v. Springville Mun. Corp., 1999 UT 39, ¶ 26, 982 P.2d 65.
¶34 	While some of Mr. Knighton’s statements are conclusory,
most are based on personal knowledge and set forth admissible
facts. 	Specifically, in relevant part, Mr. Knighton’s affidavit
asserts that on the day after Cabaness returned to work from a
six to seven week leave of absence for work-related depression,
Mr. Knighton was present in a meeting where Thomas criticized
Cabaness about personal matters. 	Additionally, Mr. Knighton
claims Thomas said, in the presence of the other employees, that
he was considering firing Cabaness. 	These assertions are purely
factual and nonconclusory, and therefore admissible. 	The
district court abused its discretion by failing to consider these
assertions as evidence of Thomas’ conduct.
D. 	The District Court Erred in Finding That Thomas’ Conduct Did
Not Rise to the Level of Outrageous and Intolerable but It
Correctly Found That Michaelis’ Conduct Could Not Constitute
Intentional Infliction of Emotional Distress
¶35 	Cabaness argues that the district court erred when it
determined as a matter of law that Thomas’ and Michaelis’ conduct
was not outrageous and intolerable, and was therefore
insufficient to support a claim of intentional infliction of
emotional distress. 	Rather, Cabaness argues that the district
court should have determined that Thomas’ and Michaelis’ conduct
met the necessary threshold to allow the claim to proceed to a
jury. 	In other words, that reasonable persons could differ
regarding whether the conduct was extreme, outrageous, and
intolerable. 	We agree that the facts do not support an
intentional infliction of emotional distress claim against
Michaelis. 	But we hold that reasonable minds could differ
regarding whether Thomas’ conduct was outrageous and intolerable,
and therefore the district court erred by failing to allow
Cabaness’ claim against Thomas to proceed to a jury.

No. 20080446 	14
¶36 	To succeed on a claim of intentional infliction of
emotional distress, a plaintiff must demonstrate that the
defendant
intentionally engaged in some conduct toward
the plaintiff, (a) with the purpose of
inflicting emotional distress, or, (b) where
any reasonable person would have known that
such would result; and his actions are of
such a nature as to be considered outrageous
and intolerable in that they offend against
the generally accepted standards of decency
and morality.
Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 58,
70 P.3d 17 (emphasis in original) (quoting Franco v. Church of
Jesus Christ of Latter-say Saints, 2001 UT 25, ¶ 25, 21 P.3d
198). 	Further, “‘[i]t is for the court to determine, in the
first instance, whether the defendant’s conduct may reasonably be
regarded as so extreme and outrageous as to permit recovery.’”
Gygi v. Storch, 503 P.2d 449, 450 (Utah 1972) (quoting
Restatement (Second) of Torts § 46 cmt. h (1965)). 	However,
“[w]here reasonable men may differ, it is for the jury, subject
to the control of the court, to determine whether, in the
particular case, the conduct has been sufficiently extreme and
outrageous to result in liability.” 	Id.
¶37 	Defendants argue that Cabaness’ claim against Michaelis
fails as a matter of law because he cannot demonstrate that
Michaelis’ conduct was directed toward Cabaness with the intent
to inflict emotional distress. 	Rather, Defendants argue that
Michaelis merely failed to curb Thomas’ conduct. 	Cabaness fails
to provide any case law supporting the position that the failure
to prevent another from inflicting emotional anguish gives rise
to a valid claim of intentional infliction of emotional distress.
Further, we do not find any support within our jurisprudence for
such a position. 	We do not deny that there may be persuasive
case law in other jurisdictions for extending the reach of
intentional infliction of emotional distress to include
situations where an individual fails to prevent another from
engaging in conduct that inflicts emotional distress on a third
person, particularly where, as here, the individual appears to
have some duty or obligation to prevent the outrageous conduct.
However, “we support the rigorous scrutiny applied to attempts to
expand the reach of intentional infliction of emotional
distress.” Hatch v. Davis, 2006 UT 44, ¶ 32, 147 P.3d 383.
Cabaness has simply failed to persuade us that we should expand
the rule at this time. 	We therefore affirm the district court

15 	No. 20080446
and hold that Cabaness’ intentional infliction of emotional
distress claim against Michaelis fails as a matter of law.
¶38 	We now consider whether the district court erred in
determining that Thomas’ conduct was not sufficiently outrageous
and intolerable, such that Cabaness could not demonstrate
intentional infliction of emotional distress. 	“To be considered
outrageous, the conduct must evoke outrage or revulsion; it must
be more than unreasonable, unkind, or unfair.” 	Franco, 2001 UT
25, ¶ 28, (internal citations and quotation marks omitted).
Additionally, we have stated that “‘liability [for intentional
infliction of emotional distress] clearly does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or
other trivialities.’” 	Bennett, 2003 UT 9, ¶ 64 (alteration in
original) (quoting Restatement (Second) of Torts § 46 cmt. d
(1965)). 	However, in Retherford v. AT&T Communications, we
recognized that while a single insult, indignity, or threat may
not give rise to liability for intentional infliction of
emotional distress, a continuous and ongoing pattern of the same
may constitute extreme, intolerable, and outrageous conduct and
thus result in liability. 	844 P.2d 949, 975-76, 978 (Utah 1992).
¶39 	In Retherford, the plaintiff alleged intentional
infliction of emotional distress based on an ongoing pattern of
intimidation and harassment. 	Id. at 975. 	Specifically, the
plaintiff alleged that after she filed a sexual harassment
complaint, her co-workers began to harass and intimidate her, and
continued to do so for a number of months. 	Id. at 978. 	In
holding that the plaintiff met the required threshold showing of
outrageous and intolerable conduct, we noted that the plaintiff
had alleged “more than simple insult or annoyance.” 	Id. 	Rather,
she alleged “months of persecution by her co-workers” where they
“shadowed her movements, intimidated her with threatening looks
and remarks, and manipulated circumstances at her work in ways
that made her job markedly more stressful, all in retaliation for
her good-faith complaint of sexual harassment.” 	Id.
¶40 	Here, as in Retherford, Cabaness has alleged an ongoing
and continuous pattern of abusive, intimidating, and harassing
behavior from his supervisor, Thomas. 	Throughout Cabaness’
career, Thomas insulted and demeaned him by, among other things,
calling him “dumbass,” “jackass,” and “asshole.” 	Thomas often
told Cabaness he had a “piss poor attitude.” 	Indeed, many
employees testified that Thomas frequently used gross profanity
and consistently verbally harassed the employees, including
Cabaness. 	On one occasion, Thomas told Cabaness that his problem
was his wife, and that he needed to get rid of his wife. 	Various
employees testified that Cabaness was often the focus of Thomas’

No. 20080446 	16
abusive behavior, especially towards the end of his employment
with Bountiful Power. 	Cabaness and other employees frequently
complained to Michaelis about Thomas’ conduct. 	As in Retherford,
Cabaness and other employees testified that Thomas’ behavior
worsened after they complained to Michaelis about his conduct.
¶41 	Cabaness also provided evidence demonstrating that
Thomas intentionally made Cabaness’ job more difficult and
stressful. 	For example, on various occasions Thomas would arrive
at a work site and mandate that Cabaness and other employees stop
what they were doing and do things the way he wanted without
providing any justification other than his superiority.
Similarly, Cabaness testified that Thomas frequently told him
that he was lucky to have his job and that he could be fired if
he did not do what he was told.
¶42 	In an occupation that relies on safety procedures to
secure the safety of its employees, Cabaness offered evidence
demonstrating Thomas’ disregard for the safety of Cabaness and
other employees. 	Early in Cabaness’ career, Thomas refused to
put a ground on a pole with a primary line of 7200 volts before
requiring Cabaness to work on it. 	As safety director, Cabaness
held monthly safety meetings that Thomas routinely cut short.
Further, Cabaness testified that Thomas frequently required him,
and other employees, to perform electrical work in the rain even
though the work could have been postponed and completed more
safely.
¶43 	In 1997, Cabaness was first diagnosed with depression
related to “unusual stress in his work environment from his
immediate supervisor.” 	Later, in 2003, Cabaness met with another
doctor who also diagnosed him with major depression related, in
part, to “a hostile work environment and an abusive boss.” 	Due
to his depression, Cabaness did not work for approximately six
weeks in 2003. 	Michaelis testified that Thomas would have been
aware that Cabaness was absent due to depression-related
problems. 	Yet, on the day after Cabaness returned to work,
Thomas singled him out in an employee meeting, threatened to fire
him, and criticized him about personal matters in front of other
employees.
¶44 	In late 2003, Michaelis finally formed a committee to
investigate the complaints regarding Thomas’ harassment and
intimidation. 	After interviewing fifteen employees, Michaelis
sent a letter to Thomas warning him that his “intimidation needs
to stop.” 	When the situation failed to improve, Cabaness
resigned in January 2004. 	Significantly, between summer 2003 and
spring 2004, all but two of the Bountiful Power employees

17 	No. 20080446
assigned to Thomas’ crew quit primarily due to his harassing,
abusive, and intimidating conduct.
¶45 	While any of these alleged insults or indignities on
their own may not rise to the level of outrageous and intolerable
conduct, taken together, and viewed in a light most favorable to
Cabaness, we conclude that reasonable minds could differ
regarding whether Thomas’ conduct was outrageous and intolerable.
Accordingly, we hold that the district court erred when it found
as a matter of law that Thomas’ conduct was not outrageous,
intolerable and offensive to generally accepted standards of
decency and morality. 	Rather, because the facts, as alleged,
raise genuine and material issues regarding the level of
outrageous and intolerable conduct, summary judgment was
inappropriate.
¶46 	We now turn to whether the Employee Manual created an
implied contract between Cabaness and Bountiful Power.
III. 	THE EMPLOYEE MANUAL CREATES A CONTRACT BETWEEN CABANESS AND
BOUNTIFUL POWER AS A MATTER OF LAW
¶47 	Cabaness argues that the district court erred in
denying his motion for partial summary judgment and by holding as
a matter of law that the Employee Manual did not give rise to an
implied contract. 	In conjunction with these claims of error,
Cabaness argues that the district court erred in denying his rule
59(a) and 60(b) motion and determining that the city employee
affidavits were inadmissible. 	Additionally, Cabaness argues that
the district court erred by finding in the alternative that
Cabaness’ implied contract claim was barred by governmental
immunity. 	We begin by determining whether the district court
erred in not admitting the city employee affidavits and then turn
to the merits of Cabaness’ implied contract claim.
A. 	The District Court Did Not Abuse Its Discretion by Denying
Cabaness’ Rule 59(a) and 60(b) Motion and Striking the City
Employee Affidavits
¶48 	Cabaness argues that the district court erred in
striking the city employee affidavits and that we should
therefore consider the affidavits in our determination of the
implied contract issue before us. 	We decline to do so.
¶49 	After the district court entered summary judgment,
Cabaness filed a rule 59(a) and 60(b) motion to alter or amend
the order of summary judgment. 	The motion was accompanied by the
city employee affidavits. 	The city employee affidavits address

No. 20080446 	18
Bountiful Power’s alleged intent that the Employee Manual
constitute a contract between Bountiful Power and its employees.
The district court found that the city employee affidavits failed
to satisfy the newly discovered evidence standards of rule 59(a)
and rule 60(b) and were therefore inadmissible.
¶50 	We review a district court’s decision to strike
affidavits under an abuse of discretion standard. 	Daines v.
Vincent, 2008 UT 51, ¶ 21, 190 P.3d 1269 (“With regard to our
review of the exclusion of evidence, we grant a trial court broad
discretion to admit or exclude evidence and will disturb its
ruling only for abuse of discretion.”). 	Both rule 59(a) and rule
60(b) allow a court to open and amend or alter a judgment based
on, among other things, “newly discovered evidence,” which by
reasonable “due diligence could not have been discovered” or
produced prior to or at the hearing or trial that resulted in the
judgment. 	Utah R. Civ. P. 60(b); Utah R. Civ. P. 59(a)(4).
Under rule 59(a)(4) a moving party must establish: 	(1) the
existence of newly discovered evidence which is material and
competent; (2) that “by due diligence the evidence could not have
been discovered and produced” before judgment was entered; and
(3) that the evidence is not “merely cumulative or incidental,”
but is substantial enough that there is a reasonable likelihood
of a different result. 	Barson v. E.R. Squibb & Sons, Inc., 682
P.2d 832, 841 (Utah 1984).
¶51 	Here, the district court found that one exercising
reasonable due diligence would have discovered the evidence
contained in the city employee affidavits prior to or at the
summary judgment hearing and therefore the evidence was untimely
and inadmissible. 	Cabaness argues that he did not present the
affidavits earlier because he was unaware of Defendants’ argument
that Bountiful Power did not intend the Employee Manual to create
a contract between the City and its employees or, in other words,
that he was unfairly surprised by the Defendants’ argument. 	This
argument is unavailing. 	Defendants’ answer to Cabaness’ original
pleading denied that the Employee Manual created an implied
contract and Cabaness was under the obligation to demonstrate
that each element of implied contract was met, including intent
of the parties. 	We therefore hold that the district court did
not abuse its discretion when it denied Cabaness’ rule 59(a) and
60(b) motions. 	Accordingly, we do not consider the evidence
contained in those affidavits.
¶52 	We now turn to whether the district court erred in
determining as a matter of law, that the Employee Manual did not
create an implied contract between the parties.

8 “Under a unilateral contract analysis, an employer’s
promise of employment under certain terms and for an indefinite
period constitutes both the terms of the employment contract and
(continued...)
19 	No. 20080446
B. 	The District Court Erred in Finding That There Was Not an
Implied Contract as a Matter of Law
¶53 	Bountiful Power argues that the district court
correctly determined as a matter of law that the plain language
of the Employee Manual did not create an implied contract. 	We
disagree.
¶54 	Bountiful Power is a division of the City of Bountiful,
and as such, its employees are public employees. 	Ordinarily,
“employment of public employees is ‘governed by statute, not
contract.’” Canfield v. Layton City, 2005 UT 60, ¶ 16, 122 P.3d
622 (quoting Buckner v. Kennard, 2004 UT 78, ¶ 32, 99 P.2d 842).
We have recognized, however, “that circumstances may exist where
‘the government voluntarily undertakes an additional duty’ beyond
its normal obligation to the employee, ‘in which case an implied
contract arises.’” 	Id. (quoting Buckner, 2004 UT 78, ¶ 32).
Although Cabaness was a public employee, he argues that Bountiful
Power voluntarily undertook additional duties in developing and
distributing the Employee Manual thereby creating an implied-in-
fact employment contract. 	We agree.
¶55 	An implied contract may arise from a variety of sources
including personnel policies or provisions of an employment
manual. 	See Canfield, 2005 UT 60, ¶ 17 (“[A]n implied contract
may ‘arise from a variety of sources, including . . . announced
personnel policies . . . .’” (quoting Berube v. Fashion Centre,
Ltd., 771 P.2d 1033, 1044 (Utah 1989))); Johnson v. Morton
Thiokol, Inc., 818 P.2d 997, 1000 (Utah 1991)(an “employee manual
can operate as implied-in-fact contract terms”); Brehany v.
Nordstrom, Inc., 812 P.2d 49, 54 (Utah 1991)(“[E]mployment manual
provisions may constitute implied-in-fact terms of the employment
arrangement. . . .”); 	Caldwell v. Ford, Bacon & Davis Utah,
Inc., 777 P.2d 483, 485 (Utah 1989) (“[A]n employer’s internally
adopted policies and procedures . . . can, in effect, become part
of the contractual relationship between the employer and the
employee.”). 	In Canfield, we suggested in dicta that an employee
manual may create an implied contract because “employees may
reasonably rely on the document’s provisions and may expect the
employer to conform to the procedures it outlines.” 	2005 UT 60,
¶ 17 (internal quotation marks omitted). 	“[I]f an employee
manual is to be considered part of an employment contract, the
terms should be considered terms of a unilateral contract,” 8 and

8 (...continued)
the employer’s consideration for the employment contract. 	The
employee’s performance of service pursuant to the employer’s
offer constitutes both the employee’s acceptance of the offer and
the employee’s consideration for the contract.” 	Johnson v.
Morton Thiokol, 818 P.2d 997, 1001-02 (Utah 1991).
No. 20080446 	20
therefore “must meet the requirements for an offer of a
unilateral contract.” 	Morton Thiokol, 818 P.2d at 1001-02.
Specifically, “[t]here must be a manifestation of the employer’s
intent that is communicated to the employee and sufficiently
definite to operate as a contract provision.” 	Id. at 1002
(internal citations omitted).
¶56 	Because “[t]he existence of [an implied contract] is
[normally] a question of fact which turns on the objective
manifestations of the parties’ intent,” it is “primarily a jury
question.” 	Morton Thiokol, 818 P.2d at 1001 (internal citations
omitted). 	However, “‘the court retains the power to decide
whether, as a matter of law, a reasonable jury could find that an
implied contract exists.’” 	Ryan v. Dan’s Food Stores, Inc., 972
P.2d 395, 401 (Utah 1998) (quoting Sanderson v. First Sec.
Leasing Co., 844 P.2d 303, 306 (Utah 1992)). 	Similarly, if the
evidence of intent relied on by the parties does not present any
triable issues of fact, the court may also determine the
existence or non-existence of an implied contract as a matter of
law.
¶57 	Relevant evidence of the intent of the parties usually
“includes the language of the manual itself, the employer’s
course of conduct, and pertinent oral representations.” 	Brehany,
812 P.2d at 56. 	In this case, however, Bountiful Power relies
solely on the plain language of the Employee Manual without
providing any other evidence of the non-existence of an implied
contract. 	Similarly, Cabaness also relies on the plain language
of the Employee Manual as evidence of the existence of an implied
contract and testified that he expected that Bountiful Power
would comply with the terms of the Manual. 	Given the evidence
provided by the parties, the district court determined, and we
agree, that there were no triable issues of fact relevant to the
existence of an implied contract and the issue therefore could be
resolved as a matter of law. 	We accordingly interpret the plain
language of the Employee Manual to determine whether it provides
a manifestation of Bountiful Power’s intent with terms that are
sufficiently definite to operate as contract provisions.
¶58 	Bountiful Power argues that the disclaimer in the
Employee Manual precludes a finding that it intended to create an

21 	No. 20080446
implied contract between itself and its employees. 	The
disclaimer contained in Section 101 of the Employee Manual
entitled “Purpose of this Manual” states that “No contract exists
between Bountiful City and its employees with respect to salary,
salary ranges, movement within salary ranges, or employee
benefits.” 	(Emphasis added). 	In Morton Thiokol, we agreed with
other jurisdictions and held, “a clear and conspicuous
disclaimer, as a matter of law, prevents employee manuals or
other like material from being considered as implied-in-fact
contract terms.” 	818 P.2d at 1003. 	In that case, we held that
“the manual . . . at issue contain[ed] clear and conspicuous
language disclaiming any contractual liability.” 	Id.
Specifically, the disclaimer categorically stated that the manual
did “not create a binding contract or any other obligation or
liability on the company.” 	Id. 	Unlike the disclaimer in Morton
Thiokol, the disclaimer in this case does not contain broad and
conspicuous language disclaiming any and all contractual
liability. 	To the contrary, it only disclaims contractual
liability “with respect to” a few specifically identified items.
Indeed, the plain meaning of the disclaimer in this case is that
Bountiful Power intended to create a contract with its employees
with respect to the items in the Employee Manual that are not
specifically listed in the disclaimer.
¶59 	Additional provisions in the Employee Manual also
manifest Bountiful Power’s intent to voluntarily undertake
additional duties beyond its normal obligations to its employees.
Although some portions of the Employee Manual express only
policies, procedures, and expectations of Bountiful Power, others
rise to the level of promises on the part of Bountiful Power on
which its employees should reasonably be able to rely. 	For
instance, section 406 of the Employee Manual, entitled “Work
Environment,” states that “City policy will not tolerate verbal
or physical conduct by any employee which harasses, disrupts, or
interferes with another’s work performance or which creates an
intimidating, offensive, or hostile work environment . . . .”
(Emphasis added). 	Additionally, section 408, entitled “Work
Place Violence,” mandates that “[o]ral or written threats,
physical assault, harassment, intentional damage, and every other
act or threat of violence is strictly prohibited.” 	(Emphasis
added). 	Finally, Section 409, entitled “Sexual and Other
Harassment,” provides as follows:
Any behavior or conduct of a harassing
or discriminating nature . . . which is
pervasive, unwelcome, demeaning, ridiculing,
derisive or coercive, or results in a
hostile, abusive or intimidating work

9 It is proper for us to make this determination as a matter
of law because the claim for breach of an implied employment
contract was subject to cross motions for summary judgment and
all parties stipulated below that there were no disputed issues
of material fact relating to this issue. 	It is therefore
appropriate to decide the issue based on the evidence of record.
Furthermore, we disagree that our decision today will “wreak
havoc on employers and expose them to unforeseen liability” as
Bountiful Power argues, nor do we believe it will discourage
employers from providing employees with needed employment manuals
discussing relevant standards of conduct. 	If anything, our
decision today may cause employers wishing to avoid contractual
liability to draft their employee manuals with clear and
conspicuous disclaimer language.
No. 20080446 	22
environment, constitutes harassment and shall
not be tolerated by the City.
. . . .
No City official or employee shall
harass, coerce, intimidate, threaten or
discipline employees who exercise their
rights under this procedure in good faith.
Any such form of reprisal will render the
official or employee subject to disciplinary
actions.
(Emphasis added).
¶60 	Contrary to Bountiful Power’s argument, these
provisions in conjunction with the clear language of the limited
disclaimer evince Bountiful Power’s intent to voluntarily
undertake additional duties to protect its employees from
misconduct by supervisors or other employees. 	We therefore hold
as a matter of law that the relevant provisions of the Employee
Manual create an implied contract between Bountiful Power and
Cabaness. 9
¶61 	Having determined that the Employee Manual creates an
implied contract between Cabaness and Bountiful Power, we also
hold as a matter of law that an implied covenant of good faith
and fair dealing was inherent in that contract. 	See Brehany, 812
P.2d at 55 (“[E]very contract is subject to an implied covenant
of good faith . . . .”).

10 The GIA has been amended and renumbered various times
since the activity at issue in this case. 	In revising the Act,
however, the Legislature indicated its intent that the previous
version govern allegations of injury that occurred before July 1,
2004. 	See Canfield v. Layton City, 2005 UT 60, ¶ 7 n.2, 122 P.3d
622. 	Therefore, we cite to the previous version in effect at the
time the activity at issue in this case occurred.
23 	No. 20080446
¶62 	We now address whether the district court erred in
holding in the alternative that Cabaness’ implied contract claim
was barred by Utah’s Governmental Immunity Act.
C. 	Governmental Immunity Does Not Prohibit Cabaness’ Breach of
Contract Claim
¶63 	The district court alternatively held that even
assuming the Employee Manual created an implied contract between
Cabaness and Bountiful Power, the claim was still barred under
Utah’s Governmental Immunity Act (the “GIA”). 	See Utah Code
§§ 63-30-1 to -38 (1997). 10 	Under section 63-30-3, “governmental
entities are immune from suit for any injury which results from
the exercise of a governmental function . . . .” 	In order to
determine whether a governmental entity retains immunity from
suit under the GIA we address three questions: 	(1) does the
activity at issue constitute a “governmental function” under Utah
Code section 63-30-3 of the GIA? (2) if the activity is a
governmental function, has another section of the GIA waived
governmental immunity? and (3) if governmental immunity has been
waived, does the GIA contain an exception that restores
governmental immunity? 	Ledfors v. Emery County Sch. Dist., 849
P.2d 1162, 1164 (Utah 1993). 	Here, the parties do not dispute
that the activity at issue is a governmental function. 	Instead,
Cabaness argues that Utah Code section 63-30-5 of the GIA waives
governmental immunity and that the exceptions in section 63-30-10
do not apply and accordingly do not restore immunity. 	We
therefore focus on the last two prongs of the immunity analysis
beginning with the question of whether governmental immunity was
waived under section 63-30-5.
¶64 	Under section 63-30-5 of the GIA, governmental entities
waive immunity “as to any contractual obligations.” 	Utah Code
Ann. § 63-30-5(1). 	As discussed above, the Employee Manual
created an implied contract between Bountiful Power and Cabaness.
Accordingly, under the plain language of section 63-30-5,
governmental immunity is waived with respect to any contractual
obligations Bountiful Power owes to Cabaness under the Employee
Manual. 	Next we determine whether any exceptions under the GIA
restore immunity to Bountiful Power.

No. 20080446 	24
¶65 	Section 63-30-10 of the GIA initially waives
“[i]mmunity from suit of all governmental entities . . . for
injury proximately caused by a negligent act or omission of an
employee committed within the scope of employment . . . .” 	Id.
§ 63-30-10. 	However, subsection 63-30-10(2) restores
governmental immunity “if the injury arises out of, in connection
with, or results from . . . infliction of emotional anguish.”
Id. § 63-30-10(2). 	Bountiful Power argues that the broad
language of subsection (2) bars Cabaness’ contract claim because
his injury arises out of the infliction of emotional anguish.
Bountiful Power’s argument assumes that the exception contained
in subsection 63-30-10(2) applies not only to the initial waiver
of immunity in section 63-30-10, but also to the waiver of
immunity for contractual obligations in section 63-30-5. 	We
reject such an assumption and hold that the waiver of immunity in
section 63-30-5 is independent of the exceptions contained in
section 63-30-10. 	Specifically, the statutory language of the
GIA and relevant case law do not support a finding that the
exceptions in section 63-30-10 apply to the independent waiver of
governmental immunity for contractual obligations in section 63-
30-5.
¶66 	“When examining a statute, we first look to its plain
language.” 	State v. Laycock, 2009 UT 53, ¶ 19, 214 P.3d 104.
“We read the plain language of a statute as a whole and interpret
its provisions in harmony with other statutes in the same chapter
and related chapters.” 	Id. 	(internal quotation marks and
alteration omitted). 	In relevant part, section 63-30-10 states
that governmental immunity is waived “for injury proximately
caused by a negligent act or omission of an employee committed
within the scope of employment except if the injury arises out
of, in connection with, or results from . . . infliction of
mental anguish.” 	Utah Code Ann. § 63-30-10(2). 	On their face,
the exceptions to waiver listed in section 63-30-10 do not apply
to contract claims brought under section 63-30-5. 	Instead, under
the plain language of the statute, the exceptions apply only to
the waiver of immunity for negligence actions brought under
section 63-30-10.
¶67 	We acknowledge that under our prior case law, the
exceptions to waiver in section 63-30-10 have been applied to
other independent waivers of governmental immunity. 	In Keegan v.
State, we noted that the exceptions in section 63-30-10 have been
applied to the waivers of immunity in both sections 63-30-8 and
63-30-9. 	896 P.2d 618, 621 (Utah 1995). 	In that case, we held
that an exception in section 63-30-10 barred plaintiff’s
complaint brought under section 63-30-8. 	Id. at 623. 	And

11 Bountiful Power suggests that the court of appeals’
analysis in Butler, Crockett and Walsh Development Corporation v.
Salt Lake County demonstrates that the exceptions to section 63-
30-10 apply to contract actions. 	2005 UT App 402, 2005 Utah App.
LEXIS 394 (Utah Ct. App. 2005) (per curiam). 	In Butler,
plaintiffs brought a contract-based declaratory action against
the County for denying their application for a conditional use
permit. 	Id. at *1-3. 	The court of appeals held that the
complaint sought affirmative relief and was not a declaration of
rights under a contract and then held that because the injury
asserted arose out of conduct described by one of the exceptions
in section 63-30-10, plaintiff’s action was barred by
governmental immunity. 	Id. 	Although we agree with the outcome,
we find that the court of appeals erred in that case by relying
on any of the exceptions in section 63-30-10 because the claim
did not assert any claim of negligence, nor was it brought under
sections 63-30-8 or 63-30-9. 	Instead, the court of appeals
should have found that the County was immune from suit under
section 63-30-3 because the alleged injury resulted “from the
exercise of a governmental function,” and no other provisions of
the GIA waived that immunity.
Bountiful Power also argues that our analysis in Ledfors v.
Emery County School District, 849 P.2d 1162 (Utah 1993), compels
a finding that the exceptions in section 63-30-10 apply to
Cabaness’ contract claim. 	We disagree. 	In Ledfors, both parties
(continued...)
25 	No. 20080446
relying on Keegan, we held in Taylor v. Ogden City School
District that the exceptions in 63-30-10 apply to the waiver of
immunity in section 63-30-9. 	902 P.2d 1234, 1234 (Utah 1995)
(per curiam). 	After the injuries occurred in both Keegan and
Taylor, but before the cases were decided, the legislature
amended sections 63-30-8 and 63-30-9 and qualified the waiver of
governmental immunity by stating that immunity was waived
“[u]nless the injury arises out of one or more of the exceptions
to waiver set forth in Section 63-30-10.” 	Keegan, 896 P.2d at
620-21 (quoting Utah Code Ann. § 63-30-8 (1993); Taylor v. Ogden
City Sch. Dist., 927 P.2d at 159, 160, n.2 (Utah 1996); see also
Utah Code Ann. §§ 63-30-8, 63-30-9 (1997). 	Thus, although it is
now clear that the exceptions in section 63-30-10 apply to
sections 63-30-8 and 63-30-9, the Keegan and Taylor cases may
appear somewhat troubling because both applied the exceptions in
section 63-30-10 to independent waivers of governmental immunity
before the legislative amendments were effective. 	However, after
reviewing the Keegan and Taylor cases and their predecessors, it
is clear that the exceptions in section 63-30-10 were applied to
other independent waivers of immunity because the initial causes
of action at issue in these cases sounded in negligence. 11 	See

11 (...continued)
agreed that governmental immunity was initially waived under
section 63-30-10. 	Id. at 1165. 	Thus, there was no question that
the exceptions to immunity contained in that section applied and
might bar plaintiff’s claim.
12 We note that while our decision today is based on a
former version of the GIA, the analysis with respect to
governmental immunity would have been very similar and the
outcome would have been the same under the newly amended and
renumbered GIA. 	See Utah Code Ann. § 63G-7-301(1) to (5) (2008).
No. 20080446 	26
Keegan, 896 P.2d at 622 (reviewing prior cases holding that the
exceptions in 63-30-10 applied to other independent waivers of
immunity).
¶68 	Unlike Keegan and other prior cases, Cabaness’ claim
against Bountiful City does not sound in negligence. 	Rather, it
sounds squarely in contract. 	While we will reject claims that
reflect “attempts to evade the[] statutory categories [of the
GIA] by recharacterizing the supposed cause of the injury,”
Ledfors, 849 P.2d at 1166, that is not the case here because
Cabaness has a legitimate contractual claim against Bountiful
Power. 	As discussed above, the Employee Manual created an
implied contract between Bountiful Power and Cabaness with
specific enforceable provisions. 	And although some of Cabaness’
injuries may have arisen from the infliction of mental anguish,
that is exactly the type of injury that the terms of the contract
appear designed to prevent.
¶69 	Further, it is significant that when the legislature
amended sections 63-30-8 and 63-30-9 to incorporate the
exceptions listed in section 63-30-10, it did not amend the
waiver of immunity in section 63-30-5. 	Instead, the plain
language of section 63-30-5 indicates that it was intended to
apply to “any contractual obligation[s]” of a governmental
entity, without qualification. 	Utah Code Ann. § 63-30-5
(emphasis added).
¶70 	In summary, we hold that under the plain language of
the GIA, the exception to waiver in section 63-30-10(2) does not
apply to actions that are brought under section 63-30-5 and that
legitimately sound in contract. 	Accordingly, governmental
immunity in this case is waived under section 63-30-5 and no
other provisions of the GIA restore it. 	Therefore, the district
court erred in holding that Cabaness’ implied contract claim was
barred by the GIA. 12 	Next we address whether consequential
damages apply to Cabaness’ implied contract claim.

27 	No. 20080446
D. 	Cabaness May Recover Damages for Mental Distress Related to
His Contract Claim
¶71 	Bountiful Power argues that damages for emotional or
mental distress are not recoverable on Cabaness’ contract claim.
Given the unusual nature of the contract at issue here, we hold
that compensation for emotional distress and mental suffering may
be available where emotional distress and mental suffering
naturally flow from a breach of the terms of the contract between
Bountiful Power and were within the contemplation of the
contracting parties. 	Because questions of fact remain regarding
whether these damages were within the contemplation of the
parties at the time the contract was formed, the district court
erred in granting defendants’ summary judgment on this issue.
¶72 	A non-breaching party may recover both “general
damages, which flow naturally from the breach, and consequential
damages, which, while not an invariable result of breach, were
reasonably foreseeable by the parties at the time the contract
was entered into.” 	Mahmood v. Ross, 1999 UT 104, ¶ 19, 990 P.2d
933 (internal quotation marks omitted). 	Generally, “there is no
recovery of damages for mental anguish stemming from a breach of
contract.” 	Ams. Disabled for Accessible Pub. Transp. v. Skywest
Airlines, Inc., 762 F.Supp. 320, 326 (D. Utah 1991). 	But we have
recognized an exception to this general rule in unusual
circumstances. 	In the context of a breach of a first-party
insurance contract, we held that consequential “damages for
mental anguish might be provable” because “insurance frequently
is purchased not only to provide funds in case of loss, but to
provide peace of mind for the insured or his beneficiaries.”
Beck v. Farmers Ins. Exch., 701 P.2d 795, 802 (Utah 1985).
Although our analysis in Beck was based on “the unique nature and
purpose of an insurance contract” and has not yet been applied to
other types of breach of contract cases, we find the analysis
instructive in the case before us. 	Id.
¶73 	In Beck, we stated that the foreseeability of
contractual damages related to economic distress or mental
anguish “will always hinge upon the nature and language of the
contract and the reasonable expectations of the parties.” 	Id.
While this statement was made within the context of an insurance
contract, we believe it applies to all contract actions. 	Other
jurisdictions have similarly recognized that contractual damages
related to emotional distress may be an appropriate remedy
depending on the foreseeability of such damages and the specific
nature of the contract at issue. 	See, e.g., Sullivan v.
O’Connor, 296 N.E.2d 183, 188-89 (Mass. 1973) (“[T]here is no

No. 20080446 	28
general rule barring such items of [emotional] damage[s] in
actions for breach of contract. 	It is all a question of the
subject matter and background of the contract . . . . ”); Stewart
v. Rudner, 84 N.W.2d 816, 824 (Mich. 1957) (holding that economic
distress is a recoverable contract damage when the contract
concerns “matters of mental concern or solicitude” and such
damages were within “the contemplation of the parties”); Lamm v.
Shingleton, 55 S.E.2d 810, 813 (N.C. 1949) (“Where the contract
is personal in nature and the contractual duty or obligation is
so coupled with matters of mental concern or solicitude, or with
the sensibilities of the party to whom the duty is owed, that a
breach of that duty will necessarily or reasonably result in
mental anguish or suffering, and it should be known to the
parties from the nature of the contract that such suffering will
result from its breach, compensatory damages therefor may be
recovered.”); see also, Restatement (Second) of Contracts § 353
(1981) (stating that a non-breaching party may recover emotional
damages whenever “the contract or the breach is of such a kind
that serious emotional disturbance was a particularly likely
result”).
¶74 	In a recent decision discussing this issue, the United
States Court of Appeals for the Eleventh Circuit made the
following statement:
Although the general rule is that emotional
damages for breach of contract will not lie,
this rule is simply a shorthand way of saying
that emotional distress is usually not a
foreseeable consequence of breach. 	But when
the nature of the contract is such that
emotional distress is foreseeable, emotional
damages will lie.
Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1200 (11th
Cir. 2007) (internal citations omitted). 	We agree and recognize
that emotional distress is typically not recoverable in an action
for breach of contract because such damages are rarely a
foreseeable result of breach. 	To be sure, “in the ordinary
commercial contract, damages are not recoverable for
disappointment, even amounting to alleged anguish, because of
breach.” 	Stewart, 84 N.W.2d at 823. 	This is so because,
although
[i]n such cases breach of contract may cause
worry and anxiety varying in degree and kind
from contract to contract, depending upon the
urgencies thereof, the state of mind of the

29 	No. 20080446
contracting parties, and other elements, but
it has long been settled that recovery
therefor was not contemplated by the parties
as the “natural and probable” result of the
breach.
Id. 	Indeed,
[s]ome type of mental anguish, anxiety, or
distress is apt to result from the breach of
any contract which causes pecuniary loss.
Yet damages therefor are deemed to be too
remote to have been in the contemplation of
the parties at the time the contract was
entered into to be considered as an element
of compensatory damages.
Lamm, 55 S.E.2d at 813.
¶75 	But we also agree that in rare cases the non-breaching
party to a contract may recover damages for emotional distress.
Accordingly, given our discussion above, we hold that a non-
breaching party may recover general and/or consequential damages
related to emotional distress or mental anguish arising from a
breach of contract when such damages were both a foreseeable
result of the breach of contract and explicitly within the
contemplation of the parties at the time the contract was entered
into. 	As we stated in Beck, the applicability of such damages
“will always hinge upon the nature and language of the contract
and the reasonable expectations of the parties.” 	701 P.2d at
802.
¶76 	In this case, Bountiful Power contracted with Cabaness
and agreed, among other things, that it would “not tolerate
verbal or physical conduct by any employee which harasses,
disrupts, or interferes with another’s work performance or which
creates an intimidating, offensive, or hostile work environment.”
Because this contractual provision of the Employee Manual is
specifically directed toward matters of mental concern and
solicitude, any breach thereof may result in emotional distress
and mental anguish. 	Further, the unusual nature of the
contractual obligations and the specific language of the
contractual provisions give rise to the possibility that
emotional damages were within the contemplation of the parties at
the time the contract was entered. 	Therefore, the district court
erred when it granted summary judgment in favor of Bountiful
Power on this issue. 	We therefore remand to the trial court the
questions of whether emotional damages were within the

No. 20080446 	30
contemplation of the parties at the time of the contract was
formed and whether such damages are therefore recoverable.
IV. 	CABANESS’ WRONGFUL CONSTRUCTIVE TERMINATION CLAIM FAILS AS A
MATTER OF LAW
¶77 	The district court found that Cabaness’ wrongful
constructive termination claim failed because the claim sounded
in tort and Cabaness failed to allege any violations of a clear
and substantial public policy. 	We agree.
¶78 	“Under Utah law, all employment relationships entered
into for an indefinite period of time are presumed to be at-
will,” meaning that “either the employer or the employee may
terminate the employment for any reason (or no reason) except
where prohibited by law.” 	Touchard v. La-Z-Boy Inc., 2006 UT 71,
¶ 3, 148 P.3d 945 (internal quotation marks omitted). 	“[A]n
employer’s decision to terminate an employee is presumed to be
valid.” 	Id. 	In order to overcome this presumption, a discharged
employee must show that:
(1) there is an implied or express agreement
that the employment may be terminated only
for cause or upon satisfaction of [some]
agreed-upon condition; (2) a statute or
regulation restricts the right of an employer
to terminate an employee under certain
conditions; or (3) the termination of
employment constitutes a violation of a clear
and substantial public policy.
Id. (alteration in original) (internal quotation marks omitted).
In this case, Cabaness’ employment was for an indefinite term and
was therefore presumed to be at-will. 	Therefore, in order to
succeed on any wrongful termination claim, Cabaness must
demonstrate that one of the three exceptions to the at-will
doctrine apply.
¶79 	Neither Cabaness nor Bountiful City has argued that the
second or statutory exception to the at-will doctrine applies to
the facts of this case, and we therefore do not address it.
Instead, Cabaness argues that his wrongful constructive
termination claim falls under the first of the three exceptions
to the at-will rule described above, i.e., that his constructive
discharge was in violation of an implied or express employment
agreement. 	As we have already determined, certain provisions of
the Employee Manual created an implied contract between Cabaness
and Bountiful Power. 	However, those provisions do not create any

13 We doubt whether a wrongful “constructive” termination
will ever satisfy the first exception to the at-will doctrine.
The first exception requires that an employee point to specific
terms of an employment contract that demonstrates an employer did
not follow proper agreed upon procedures prior to terminating him
or her. 	But a “constructive” termination, by its very nature,
implies that the employee left before an employer had any
opportunity to apply the agreed upon procedures.
31 	No. 20080446
obligations on the part of Bountiful Power with respect to the
process of terminating employees. 	Further, none of Cabaness’
allegations in the complaint, nor any of his arguments before us,
cite to any relevant portions of the Employee Manual regarding
Bountiful Power’s contractual obligations with respect to its
decisions regarding the termination of employees. 	Instead, the
thrust of Cabaness’ argument is that Bountiful Power’s failure to
comply with its contractual obligation to provide a non-hostile
working environment resulted in his wrongful constructive
termination. 	While this may be an appropriate argument for
consequential damages resulting from a breach of contract under
Cabaness’ implied contract claim, it does not satisfy the first
exception to the at-will doctrine. 13 	We therefore look to
whether Cabaness’ wrongful constructive termination claim
succeeds under the third exception, the public policy exception
to the at-will doctrine.
¶80 	In order to succeed under the public policy exception
to the at-will doctrine, an employee must demonstrate that he or
she was discharged “in violation of clear and substantial public
policy.” 	Id. ¶ 4 (internal quotation marks omitted). 	Cabaness
admits that he has not attempted to allege or plead any clear and
substantial public policy, therefore he has failed to meet his
burden under the third exception to the at-will doctrine.
¶81 	Because Cabaness’ wrongful constructive termination
claim does not fall under one of the three exceptions to the at-
will doctrine, we affirm the district court’s holding that
Cabaness’ wrongful constructive termination claim fails as a
matter of law.
CONCLUSION
¶82 	We hold that the relevant provisions of the Employee
Manual, as discussed above, created an implied contract between
Cabaness and Bountiful Power. 	Similarly, we hold that Cabaness’
implied contract claim is not barred by Utah’s Governmental
Immunity Act. 	Additionally, assuming Cabaness can prove a breach
of the implied contract, we hold that he may seek damages for

No. 20080446 	32
emotional distress and mental anguish. 	We further hold that the
district court erred in dismissing Cabaness’ intentional
infliction of emotional distress claims because Cabaness offered
sufficient evidence to create a jury question regarding whether
Thomas’ conduct was sufficiently intolerable and outrageous. 	But
we affirm the district court’s decision to dismiss Cabaness’
intentional infliction of emotional distress claim against
Michaelis. 	And we affirm the district court’s determination that
Cabaness’ wrongful constructive termination claim fails as a
matter of law. 	We therefore remand the case to the district
court for proceedings consistent with this opinion.
---
¶83 	Chief Justice Durham, Associate Chief Justice Durrant,
and Justice Nehring concur in Justice Parrish’s opinion.
---
WILKINS, Justice, dissenting:
¶84 	I would affirm the judgment of the district court in
all regards. 	I would not extend Beck to non-insurance contract
claims, nor would I deem the provisions relied upon by the
majority in the employee manual as sufficient to form a contract
between the parties.
---