Jeremy Duda - DAILY HERALD | Posted: Tuesday, August 5, 2008 11:00 pm
A judge dismissed a lawsuit by a Provo man who claimed his boss waterboarded him as part of a motivational exercise, but his attorney said he plans to re-file the case.
Judge Gary Stott dismissed Chad Hudgens' lawsuit against Prosper Inc. on technical issues. The suit was dismissed without prejudice, meaning that it can be re-filed, according the Sean Egan, Hudgens' attorney.
"We're disappointed by the ruling but we're going to keep going," Egan said.
At a hearing in July, attorneys for Prosper argued that any claims Hudgens had against his former employers for the alleged waterboarding must be filed against the company under the Workers Compensation Act, and that the case did not meet the narrow exceptions under which someone can sue a former employer outside of that law. Egan said Stott ruled that their claim did not qualify for those exceptions. Stott also ruled that they did not properly state a claim for wrongful termination, Egan said.
"It's a pleading issue that can be fixed," he said.
Egan said he may re-file an amended version of the lawsuit within a month.
In the suit, Hudgens alleged that in May 2007, Joshua Christopherson, his former supervisor at Prosper, had other employees hold him down while Christopherson poured a gallon jug of water over his face to simulate drowning as part of a motivational exercise. Afterward, the lawsuit states, Christopherson told the other employees that he wanted them to work as hard at making sales as Hudgens was working to breathe.
After the incident, Hudgens said he began to feel symptoms of depression such as sleeplessness and was no longer able to work at Prosper after he began experiencing stomach pains. He said he has undergone psychological counseling to treat those symptoms.
Under Utah law, the primary exception to the Workers Compensation Act under which someone can sue an employer is if the employer's deliberate intent was to cause injury. In his ruling, Stott said he did not find that intent.
"From the court's perspective, Christopherson undoubtedly exhibited poor judgment to take the actions that led to this case. However, the purpose of those actions was to use [Hudgens] as an example of maximum effort for the rest of the employees to emulate as they did work for the company," Stott wrote. "Indeed, [Hudgens] asserts that the express purpose of Christopherson's abusive and intimidating conduct was to motivate team members."
Attorneys for Prosper could not be reached for comment.
Prosper does not dispute that the incident took place, but the company claims that Hudgens' knew that he would have water poured over his face when he volunteered for the exercise. Hudgens said Christopherson asked for a volunteer but did not specify what the exercise would be.
Waterboarding is a controversial interrogation technique in which a subject is placed on his back with his head tilted down while water is poured over his mouth and nose to induce a sensation of drowning. Its use by the United States against terrorism suspects has sparked international outrage and has been the subject of heated debate in Congress. Some governments consider waterboarding to be torture.
Prosper, which is located in Provo, describes itself as an educational and coaching business that assists people who are looking for ways to get out of debt or increase their income.
• Jeremy Duda can be reached at 344-2561 or jduda@heraldextra.com.