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Torres v. Sugar-Salem School District #322

United States District Court, D. Idaho

September 30, 2019

MIRIAM TORRES, fka MIRIAM SEVY, Plaintiff,
v.
SUGAR-SALEM SCHOOL DISTRICT # 322, a political subdivision of the State of Idaho, and BRYCE OWEN, individually and in his capacity as a former employee of Sugar-Salem School District, Defendants.

          MEMORANDUM DECISION AND ORDER

          DAVID C. NYE CHIEF U.S. DISTRICT COURT JUDGE

         I. OVERVIEW

         This matter comes before the Court on two separate motions for summary judgment. First, is Defendant Bryce Owen's Motion for Summary Judgment. Dkt. 46. Second, is Defendant Sugar-Salem School District #322's (“the District”) Motion for Summary Judgment. Dkt. 47. The District has also filed a Motion to Strike the Declaration of Plaintiff Miriam Torres . Dkt. 57.

         Torres claims that from the time she was sixteen years old Owen groomed her to have sex with him once she reached the age of majority. Dkt. 22, at 8-9. She also alleges that the District had notice of Owen's behavior and failed to report or take any action in response. Dkt. 22, at 5. Torres alleges violations of Title IX and 42 U.S.C. § 1983, as well as various counts of negligence against the defendants. Dkt. 22, at 9-16. The Court heard oral argument on April 12, 2019. For the reasons set forth below, the Court now GRANTS in PART and DENIES in PART the District's Motion for Summary Judgment, DENIES Owen's Motion for Summary Judgment, and DENIES the District's Motion to Strike.

         II. FACTS[1]

         Torres was a student at Sugar-Salem High School (“the high school”) from August 25, 2010, until her graduation on June 4, 2014. Owen was hired as a Counselor at the District in 2011 and spent a few days each week working at Sugar-Salem High School.

         Torres first met Owen in the beginning of her Sophomore year. It was 2011, and Torres was fifteen years old. Around September of 2011, Owen approached Torres and asked if she wanted to participate in counseling with him. Dkt. 22, at 3. At the time, Torres engaged in self-harming behavior and suspects that a friend made Owen aware of that. Dkt. 47-4, at 49. Owen's invitation made Torres uncomfortable, but she did not believe she could refuse the invitation due to Owen's position of authority at the school. Dkt. 22, at 3.

         During their first counseling session (which occurred in the Fall of 2011) Owen positioned his chair in such a way that he and Torres' knees “almost touched.” Dkt. 53-14, at 2; Dkt. 22, at 3. At this initial meeting, Torres told Owen that when she was fourteen, she had a sexual relationship with a thirty-two-year-old man named Jared Reid. Dkt. 53-1, at 6. Owen had her describe these sexual encounters in graphic detail-including what Reid did to her and how it made her feel. Id. However, Owen never indicated to Torres that such encounters were sexual abuse. Nor did he report Reid's actions to the school or the authorities. Dkt. 53-6, at 27.

         Torres estimates that Owen continued to pull her out of class for “counseling sessions” about twice weekly. Owen continued to elicit specific details of Torres' past sexual interactions during these sessions. Owen also gave Torres his personal cell phone number and told her to contact him anytime-even though the District had a policy regarding employee-student relations that stated employees were to “[r]efrain from electronically communicating with any student by any means including but not limited to texting.” Dkt. 53-6, at 47, 102.

         Nonetheless, Owen began texting Torres regularly. Torres' mother, Bernadine McCandless (“McCandless”), eventually discovered some of these messages and found them to be “flirty.” Dkt. 53-7, at 3. McCandless reported Owen's inappropriate texts to the District's Superintendent Alan Dunn, Principal Jared Jenks, and Fred Wooley (another counselor at the high school), and insisted that Owen have no further contact with her children. Id. Although the District said the texting would stop, Torres claims that the texting and other contact continued. Dkt. 53, at 14. The next semester, McCandless again told the District that Owen should have no involvement or interaction with her kids. Id. at 5-6. This second request was made after McCandless learned Owen was still in contact with her daughter. Id. Despite these requests, Owen continued to contact and interact with Torres.

         As Torres progressed through high school, Owen pulled her out of class more frequently. During their conversations, he revealed to Torres that he had previously engaged in sexual intercourse with clients. He also attempted to sow discord between Torres and her mother by telling Torres that McCandless was crazy and could not be trusted. Instead, Owen told Torres that she should only confide in him. He told her “what we talk about here stays in here.” Dkt. 53-14, at 3. Throughout this period, Owen continued to elicit graphic details regarding Torres' past sexual encounters with Reid, as well as details of her sexual encounters with boys closer to her own age.

         As Torres approached the age of eighteen, Owen increased the frequency of his contact with her. He told Torres he loved her and was planning on leaving his wife for her. He complained about the lack of sex in his marriage and bragged about his sexual prowess during his previous affairs. He also expressed his desire to have sex with Torres but explained that they had to wait until she was eighteen. Dkt. 53-14, at 3.

         Shortly after Torres turned eighteen, Owen approached her while she was working alone in the high school's sound booth. He closed the door, pulled her pants down, and had sexual intercourse with her. After this initial encounter, Owen regularly pulled Torres out of class to have sex-often in his office. Dkt. 22, at 6. Owen also asked Torres to “sext” him on multiple occasions. Dkt. 53-14, at 4.

         Owen documented some of these meetings as “counseling sessions” on Torres' school attendance records. Due to the frequency of the meetings, Torres missed numerous classes, which had a negative impact on her school performance. Torres claims multiple teachers and other District employees were aware of how frequently Owen pulled her out of class. Dkt. 53-1, at 9-10.

         Torres began to feel increasingly depressed, withdrawn, suicidal, and experienced panic attacks due to her relationship with Owen. She expressed her suicidal feelings to Owen, and he simply responded that he sometimes felt that way too. Dkt. 22, at 7. During her senior year, Owen told Torres a number of times: “If I wasn't with you, I would just kill myself.” Dkt. 47-4, at 49.

         Following Torres' graduation from high school, she moved to Utah for the summer. Owen met her there once and they had sex a final time. This occurred sometime between June and August of 2014. Shortly afterwards, the relationship ended. Dkt. 22, at 8.

         Torres began dating someone else, and ultimately married her husband in January 2015. She gave birth to her daughter in November of 2015. After giving birth, Torres began to again experience renewed feelings of depression and anxiety. That same month, Torres told her mother about Owen's relationship with her. McCandless explained that what Owen had done was abuse. Torres contends that this was the first time she had any inclination that Owen had been manipulating and abusing her. Up until that point, she believed it had been a real relationship and that Owen loved her. Dkt. 22, at 8.

         McCandless immediately reported Owen's conduct to Superintendent Dunn. Torres also reported Owen to the police. In January 2016, Torres began meeting with another counselor who helped her understand that Owen had groomed her from the time she was sixteen years old to have sex with him once she turned eighteen. Dkt. 22, at 8-9.

         Torres filed a notice of tort claim with the District on April 11, 2016. She filed her Complaint on April 26, 2017 (Dkt. 1), and subsequently filed her Amended Complaint on March 20, 2018 (Dkt. 22). Torres' Amended Complaint includes nine counts. Count One (Violation of Title IX), Count Two (Sex Discrimination in violation of 42 U.S.C. § 1983), and Count Nine (Negligent Supervision) are brought only against the District. The remaining claims are brought against both the District and Owen. These claims include:

Count Three (Negligence per se), Count Four (Tort of Child Abuse), Count Five (Negligence), Count Six (Negligent Infliction of Emotional Distress), Count Seven (Intentional Infliction of Emotional Distress), and Count Eight (Assault and Battery). Dkt. 22. In her Memorandum in Opposition to Summary Judgment, Torres voluntarily dismissed Count Four (Tort of Child Abuse). Dkt. 53, at 30.

         III. LEGAL STANDARD

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court's role at summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted). In considering a motion for summary judgment, the Court must “view[] the facts in the non-moving party's favor.” Id. To defeat a motion for summary judgment, the respondent need only present evidence upon which “a reasonable juror drawing all inferences in favor of the respondent could return a verdict in [his or her] favor.” Id. (citation omitted). Accordingly, the Court must enter summary judgment if a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The respondent cannot simply rely on an unsworn affidavit or the pleadings to defeat a motion for summary judgment; rather the respondent must set forth the “specific facts, ” supported by evidence, with “reasonable particularity” that preclude summary judgment. Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001).

         IV. ANALYSIS

         All of Torres' claims stem from her allegation that Owen improperly used his role as a school counselor to groom and sexually abuse her. Some of her claims seek to hold the District liable for Owen's conduct based on respondeat superior liability-namely Count III (Negligence per se) and Count VIII (Assault and Battery). Other counts seek to hold the District liable for its own independent acts of negligence. The Defendants have moved for summary judgment on all claims.

         A. Threshold Issues

         Before the Court addresses Torres' individual claims, there are a number of threshold issues it must discuss. The Court first addresses the District's Motion to Strike (Dkt. 57) given its potential impact on the Motions for Summary Judgment. Second, the Court considers whether Owen qualifies as a psychotherapist-and Torres as his patient or client-under Idaho Code section 18-919. Third, the Court determines whether Owen's violation of I.C. section 18-919 constitutes negligence per se. Fourth, the Court considers whether the gravamen of Torres' case is medical malpractice. Fifth and finally, the Court discusses whether some of Torres' claims are barred by the applicable statute of limitations. After addressing these threshold issues, the Court will consider Torres' remaining claims.

         1. Motion to Strike (Dkt. 57)

         The District asks the Court to strike the Declaration of Miriam Torres (“Declaration”) and two attachments filed by Torres in support of her Opposition to Defendant's Motion for Summary Judgment. The District argues that the Declaration violates the sham affidavit rule, is irrelevant, and contains hearsay.

         “In order to trigger the sham affidavit rule, the district court must make a factual determination that the contradiction is a sham, and the ‘inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit.'” Yeager v. Bowlin, 693 F.3d 1076, 1079 (9th Cir. 2010) (citations omitted). The “sham affidavit rule prevents a party who has been examined at length on deposition from raising an issue of fact simply by submitting an affidavit contradicting his own prior testimony.” Id. at 1080 (citations and punctuation omitted). However, “[t]he sham affidavit rule should be applied with caution because it is in tension with the principle that the court is not to make credibility determinations when granting or denying summary judgment.” Id. (citation and punctuation omitted). In addition, “the non-moving party is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition and minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.” Id. at 1081 (citations omitted).

         The District argues that the Declaration contradicts Torres' deposition testimony and triggers the sham affidavit rule. Torres contends that she merely elaborated, explained, and clarified her earlier answers and there is no “clear and unambiguous” discrepancy. Dkt. 65, at 6. Having reviewed Torres' deposition and declaration, the Court agrees with Torres. While her Declaration contains clarifying information regarding her first counseling session with Owen and elaborates on her deposition testimony, it does not contradict her deposition testimony in a manner that triggers the sham affidavit rule. For instance, while Torres testified in her deposition that she was not sure if her first meeting with Owen occurred before or after her sixteenth birthday on October 6, 2011, she clarified in her Declaration that, after reviewing a school calendar for the 2011-2012 school year, she learned the first day of school had been on August 8, 2011. Dkt. 53-14, at ¶¶ 3-4. Because she remembered her first counseling session occurred shortly after school started, Torres clarified in her Declaration that she believes her first counseling session occurred prior to her sixteenth birthday on October 6, 2011. Id.

         Regardless, the District also argues that the Declaration is irrelevant now that Torres has voluntarily dismissed her Tort in Child Abuse claim. Specifically, the District contends that Torres' assertions that Owen began counseling and grooming her prior to her sixteenth birthday are irrelevant now that the child abuse claim has been dropped and should be stricken. Torres disagrees, and argues that this information is still relevant to her remaining claims. Once again, the Court agrees with Torres. Claims of grooming and the timeline of when the relationship between Torres and Owen began may still be relevant to Torres' other claims and to her estoppel argument. As such, the Court will not strike these statements.

         Lastly, the District argues that various parts of the Declaration and the attachments contain hearsay. The Court will not set forth its analysis for each alleged hearsay statement, nor will it strike the Declaration and attachments at this time. Instead, the Court notes that it will only consider information that it deems admissible and relevant and will only give the information contained within these filings the weight it considers appropriate. However, if this matter proceeds to trial, Defendants are free to reassert any hearsay arguments regarding this information.

         For the above reasons, the District's Motion to Strike (Dkt. 57) is DENIED.

         2. The Applicability of Idaho Code section 18-919

         In Count III, Torres claims Owen violated an applicable duty of care set forth in Idaho Code section 18-919, which states, “any person acting or holding himself out as . . . a psychotherapist . . . who engages in an act of sexual contact with a patient or client, is guilty of sexual exploitation by a medical care provider.” In Idaho, it is well established that a statute may define the applicable standard of care and a violation of that statute can constitute negligence per se. Boswell v. Steele, 348 P.3d 497, 506 (Idaho Ct. App. 2015).

         To use a statute to establish the duty of care, four elements must be met:

(1) the statute or regulation must clearly define the required standard of conduct; (2) the statute or regulation must have been intended to prevent the type of harm the defendant's act or omission caused; (3) the plaintiff must be a member of the class of persons the statute or regulation was designed to protect; and (4) the violation must have been the proximate cause of the injury.

Id. (quoting O'Guin v. Bingham Cnty., 122 P.3d 308, 311 (Idaho 2005)) (citations omitted). Torres argues that Owen's role as a school counselor qualifies him as a psychotherapist, that she was his patient or client, and that Idaho Code section 18-919 therefore applies. Alternatively, Torres asserts that, at the very least, Owen falls within the catch-all phrase “other medical care provider” included in the same statute. Dkt. 53, at 7-8.

         The term “psychotherapist” is not defined by Idaho Code section18-919.[2] However, the Idaho Court of Appeals has held by implication that a Licensed Professional Counselor (“LPC”) falls within the meaning of “psychotherapist” as used in the statute. See State v. McKeeth, 38 P.3d 1275 (Idaho Ct. App. 2001). Notably, this is the same professional license that Owen held during the period in question.

         Nonetheless, the District argues that Owen was not acting as a psychotherapist when he met with Torres because he never diagnosed Torres and never provided her with treatment. The District also argues that Torres viewed her meetings with Owen as a way to skip class, and never said that she had a psychological condition that required counseling or therapy. Dkt. 47, at 15-16. After considering the District's arguments, the statute itself, and relevant caselaw, the Court finds that Owen was acting as a psychotherapist subject to Idaho Code section 18-919.

         Owen was an LPC when he met with Torres, held the title of school counselor, and represented to Torres that he was going to counsel her. While Torres may have viewed her meetings with Owen as a way to skip class, this is largely irrelevant in determining whether Owen acted as a psychotherapist and whether Torres was his patient or client. Pines v. Idaho State Board of Medicine, 351 P.3d 1203, 1212 (Idaho 2015) (patient's belief that he was not in a physician-client relationship with doctor was not determinative, rather doctor's treatment of patient and use of his skills as a physician to examine patient and make and rule out diagnoses in connection with that examination supported finding of a physician-client relationship at time of sexual contact).

         At times, Owen engaged in precisely the type of behavior that a counselor or psychotherapist would engage in-he elicited information from Torres about her life and relationships, and counseled her as to how she should “deal with the emotions she was feeling and the people in her life.” Dkt 53, at 9. Significantly, it appears that Owen occasionally tried to provide Torres with treatment. For example, during his deposition, Owen testified that in his first meeting with Torres, he learned that her relationship with her mother “wasn't very good.” Dkt. 47-11, at 5. In response, he “set up the next appointment for her mother to come in, because [he] thought: ‘Well, we need to probably address that then.'” Id.

         Further, even if Owen does not qualify as a “psychotherapist” under the statute, the Court finds that he falls within the catch-all phrase “other medical provider.” I.C. § 18-919(a). This phrase is defined in the statute as “a person who gains the trust and confidence of a patient or client for the examination and/or treatment of a medical or psychological condition, and thereby gains the ability to treat, examine and physically touch the patient or client.” I.C. § 18-919(b)(2). Here, Owen held himself out as a counselor, invited Torres to meet in his office for counseling, and gained her trust as he asked her questions and discussed her life. At the very least, he qualifies as an “other medical provider, ” and Idaho Code section 18-919 applies.

         Regardless, the District argues that even if Owen was acting as a psychotherapist, Torres was not his “patient or client.” The District relies on Pines, 351 P.3d at 212, in support of this position. In Pines, the Idaho Supreme Court considered the case of a doctor (Pines) who induced four young men into sexual contact by saying he was required to give full-body massages to naked “practice patients” in order to be relicensed as a doctor of osteopathy. Id. at 1205. As a result of Pine's conduct, he was disciplined by the Idaho Board of Medicine. Id. A district court affirmed the Board's decision, and Pines appealed.

         Upon review, the Idaho Supreme Court considered whether the four victims qualified as “patients” under Idaho Code section 18-919. Ultimately, the court held that two of the young men were “patients” and two were not. The court explained that two of the boys were not patients because Pines “never represented to [them] that he was giving them massages to address any actual malady.” Id. at 1214. Pines simply told the boys that he needed to “practice” giving the massages.

         It did not matter to the court that the boys knew Pines was a doctor because “neither of them appear to have had any actual malady Pines purported to treat with the massages. Therefore, in giving the massages, Pines was not holding himself out as able to treat an actual malady as required by subsection (c) [of Idaho Code section 54-1803].” Id.

         While the Court agrees that Pines is relevant to the instant matter, it finds that it is distinguishable in important ways. First, although Pines discusses Idaho Code section 18-919, the case itself revolves around disciplinary actions taken by the Idaho Board of Medicine and involves other statutes not at issue in this case.

         Second, the relevant portion of the Idaho Supreme Court's analysis concludes that two of the young men were not patients because the doctor had no other previous doctor-patient relationship with them, and the “practice” massages were not purported to treat any sort of malady they suffered from. Pines, 351 P.3d at 1214.

         Here, however, Owen initially invited Torres to meet with him for counseling because he was aware that she was self-harming. Dkt. 53-5. While Owen may not have officially diagnosed Torres, he did discuss her feelings and tell her how to “deal with the emotions she was feeling and the people in her life.” Dkt. 53, at 9. Owen held himself out as able to counsel students on serious topics like depression, anxiety, etc., and it was part of the job description for Owen's position. Dkt. 47-10, at 2. He also told Torres that she could “talk to him about things that [she] was upset about.” Dkt. 47-4, at 35.

         Further, as opposed to the doctor in Pines, Owen never claimed to merely be “practicing” his counseling skills during his meetings with Torres. Owen invited Torres to participate in actual counseling with him, and at times provided services consistent with his position. As noted above, it appears he also occasionally sought to provide Torres with treatment consistent with his role as a counselor. As such, the Court finds that Torres can properly be considered Owen's “patient or client” under Idaho Code section 18-919.

         3. Whether Owen's Violation of Idaho Code section 18-919 Constitutes Negligence Per Se (Count III)

         “In Idaho, it is well established that statutes and administrative regulations may define the applicable standard of care owed, and that violations of such statutes and regulations may constitute negligence per se.” O'Guin v. Bingham County, 122 P.3d 308, 311 (Idaho 2005). “Negligence per se . . . is a question of law to be decided by the court.” Ahles v. Tabor, 34 P.3d 1076, 1078 (Idaho 2001). The Idaho Supreme Court has enumerated several criteria to be met before negligence per se would be found.” Id. These include:

(1) the statute or regulation must clearly define the required standard of conduct; (2) the statute or regulation must have been intended to prevent the type of harm the defendant's act or omission caused; (3) the plaintiff must be a member of the class of persons the statute or regulation was designed to protect; and (4) the violation must have been the proximate cause of the injury.

Id. (quoting O'Guin, 122 P.3d at 311).

         Here, the Court finds that all four elements are met. First, Idaho Code section 18-919 clearly defines the required standard of conduct-medical care providers are not to have any sexual contact with their patients. See Hall v. Rocky Mt. Emergency Physicians, LLC, 312 P.3d 313, 321 (Idaho 2013) (stating that Idaho Code section 18-919 “clearly and unambiguously draws a line that health care providers may not cross”). Second, the statute is clearly designed to avoid the sexual exploitation of patients by their medical care providers.[3] As a result of Owen's conduct, Torres suffered that exact harm. Third, because Torres was Owen's “patient or client, ” she falls within the class of persons Idaho Code section 18-919 is designed to protect. Fourth, the harm she suffered was proximately caused by Owen's violation of the statute.

         Accordingly, the Court finds that Torres may rely upon Owen's violation of Idaho Code section 18-919 to conclusively establish the first two elements of each negligence cause of action she brings. See Slade v. Smith's Mgmt. Corp., 808 P.2d 401, 408 (1991) (“The effect of establishing negligence per se through violation of a statute is to conclusively establish the first two elements of a cause of action in negligence.”). As a result, if her negligence claims against Owen proceed to trial, “the elements of duty and breach [will be] ‘taken away from the jury.'” Ahles, 34 P.3d at 1078 (quoting Prosser and Keeton on Torts 230 (5th ed. 1984)).

         i. Respondeat superior liability for the District

         Torres also asserts a negligence per se claim against the District. Although the Court has now found that Idaho Code section 18-919 defined the applicable standard of care Owen owed to Torres, the Court must also determine whether Owen's violation of the statute supports a negligence per se claim against the District.

         “Under the doctrine of respondeat superior, ‘an employer is liable in tort for the tortious conduct of an employee committed within the scope of employment.'” Nava v. Rivas-Del Toro, 264 P.3d 960, 964 (Idaho 2011) (quoting Finholt v. Cresto, 155 P.3d 695, 698 (Idaho 2007)). “An employer need not explicitly condone, implicitly adopt, or even have specific knowledge of an employee's wrongful conduct in order to [be] held liable for that conduct under a respondeat superior theory.” Stevens v. Brigham Young University-Idaho, No. 4:16-CV-00530-DCN, 2018 WL 1040084, at *4 (D. Idaho Feb. 23, 2018).

         However, “[s]cope of employment ‘refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.'” Id. (quoting Richard J. & Esther E. Wooley Trust v. DeBest Plumbing, Inc., 983 P.2d 834, 837-38 (Idaho 1999)).

         “The servant's conduct is within the scope of his employment if it is of the kind which he is employed to perform, occurs substantially within the authorized limits of time and space, and is actuated, at least in part, by a purpose to serve the master.” Podolan v. Idaho Legal Aid Servs., 854 P.2d 280, 287 (Idaho Ct. App. 1993) (citation omitted); See also Claris v. Oregon S. L. R.R., 51 P.2d 217, 218 (Idaho 1935) (explaining that the “true test” is whether “the offending employee [was] in the performance of the master's duty in reference to the particular act causing the injury”) (emphasis added).

         “An employee's purpose or intent, however misguided in its means, must be to further the employer's business interests. . . . If the employee acts from purely personal motives . . . in no way connected with the employer's interest . . . then the master is not liable.” Id. (citations and punctuation omitted).

         “Generally, the issue of whether an employee acted within the scope of employment is a factual question to be decided by the trier of fact.” Id. (citations omitted). “However, conduct that is clearly outside the scope of employment may properly be decided by the court as a matter of law.” Id.

         Here, the Court finds as a matter of law that Owen's tortious conduct was outside the scope of his employment. Although much of the grooming and sexual contact occurred on the District's property, and within Owen's working hours, no reasonable jury could find that Owen's tortious conduct itself (the grooming and sexual exploitation) was connected with his employer's interest in any way. Instead, it is clear that Owen was acting on purely personal motives. As the Court will discuss more fully below, although Owen at times provided appropriate and legitimate counseling services to Torres, his grooming and sexual exploitation of Torres had nothing to do with his employment. Accordingly, the District's Motion for Summary Judgment is GRANTED as it relates to Torres' negligence per se claim (Count III).

         4. Whether the Gravamen of Torres' Case is Medical Malpractice

         The District argues that since Torres relies on Idaho Code section 18-919 to establish a duty of care, if the Court finds such reliance proper (which it now has), then the gravamen of the case is medical malpractice and all of Torres' state claims are subsumed into a medical malpractice claim under Idaho Code section 6-1012. Dkt. 56, at 2. That statute states, in part:

In any case, claim or action for damages due to injury to or death of any person, brought against any physician and surgeon or other provider of health care . . . on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto, such claimant or plaintiff must, as an essential part of his or her case in chief, affirmatively prove by direct expert testimony and by a preponderance of all the competent evidence, that such ...

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