Lyon, J.

Several errors are assigned, only three of which will be considered.

1. The jury having found that the defendant, in touching the plaintiff with his foot, did not intend to do him any harm, counsel for defendant maintain that the plaintiff has no cause of action, and that defendant’s motion for judgment on the special verdict should have been granted. In support of this proposition counsel quote from 2 Greenl. Ev. § 83, the rule that “the intention to do harm is of the essence of an assault.” Such is the rule, no doubt, in actions or prosecutions for mere assaults. But this is an action to recover damages for an alleged assault and battery. In such case the rule is correctly stated, in many of the authorities cited by counsel, that plaintiff must show either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. Hence, as applied to this case, if the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to kick him was also unlawful.

Had the parties been upon the play-grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this action. Some consideration is due to the implied license of the playgrounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the *528school, and necessarily unlawful. Hence we are of the opinion that, under the evidence and verdict, the action may be sustained.

2. The plaintiff testified, as a witness in his own behalf, as to the circumstances of the alleged injury inflicted upon him by the defendant, and also in regard to the wound he received in January, near the same knee, mentioned in the special verdict. The defendant claimed that such wound was the proximate cause of the injury to plaintiff’s leg, in that it produced a diseased condition of the bone, which disease was in active progress when he received the kick, and that such kick did nothing more than to change the location, and perhaps somewhat hasten the progress, of the disease. The testimony of Dr. Bacon, a witness for plaintiff (who was plaintiff’s attending physician), elicited on cross-examination, tends to some extent to establish such claim. Dr. Bacon first saw the injured leg on February 25th, and Dr. Philler, also one of the plaintiff’s witnesses, first saw it March 8th. Dr. Philler was called as a witness after the examination of the plaintiff and Dr. Bacon. On his direct examination he testified as follows: “I heard the testimony of Andrew Vosburg in regard to how he received the kick, February 20th, from his playmate. I heard read the testimony of Miss More, and heard where he said he received this kick on that day.” (Miss More had already testified that she was the teacher of the school, and saw defendant standing in the aisle by his seat, and kicking across the aisle, hitting the plaintiff.) The following question was then propounded to Dr. Philler: “After hearing that testimony, and what you know of the case of the boy, seeing it on the 8th day of March, what, in your opinion, was the exciting cause that produced the inflammation that you saw in that boy’s leg on that day?” An objection to this question was overruled, and the witness answered: “The exciting cause was the injury received at that day by the kick on the shin-bone.”

*529It will be observed that the above question to Dr. Philler calls for his opinion as a medical expert, based in part upon the testimony of the plaintiff, as to what was the proximate cause of the injury to plaintiff’s leg. The plaintiff testified to two wounds upon his leg, either of which might have been such proximate cause. Without taking both of these wounds into consideration, the expert could give no intelligent or reliable opinion as to which of them caused the injury complained of; yet, in the hypothetical question propounded to him, one of these probable causes was excluded from the consideration of the witness, and he was required to give his opinion upon an imperfect and insufficient hypothesis,— one which excluded from his consideration a material fact essential to an intelligent opinion. A consideration by the witness of the wound received by the plaintiff in January being thus prevented, the witness had but one fact upon which to base his opinion, to wit, the fact that defendant kicked plaintiff on the shin-bone. Based, as it necessarily was, on that fact alone, the opinion of Dr. Philler that the kick caused the injury was inevitable, when, had the proper hypothesis been submitted to him, his opinion might have been different. The answer of Dr. Philler to the hypothetical question put to him may have had, probably did have, a controlling influence with the jury, for they found by their verdict that his opinion was correct.

Surely there can be no rule of evidence which will tolerate a hypothetical question to an expert, calling for his opinion in a matter vital to the case, which excludes from his consideration facts already proved by a witness upon whose testimony such hypothetical question is based, when a consideration of such facts by the expert is absolutely essential to enable him to form an intelligent opinion concerning such matter. The objection to the question put to Dr. Philler should have been sustained. The error in per*530mitting the witness to answrer the question is material, and necessarily fatal to the judgment.

See note to this case in 14 L. R. A. 226. — Rep.

3. Certain questions were proposed on behalf of defendant to be submitted to the jury, founded upon the theory that only such damages could be recovered as the defendant might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff. The court refused to submit such questions to the jury. The ruling was correct. The rule of damages in actions for torts was held in Brown v. C., M. & St. P. R. Co. 54 Wis. 342, to be that the wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. The chief justice and the writer of this opinion dissented from the judgment in that case, chiefly because we were of the opinion that the complaint stated a cause of action ex contractu, and not ex delicto, and hence that a different rule of damages — the rule here contended for — was applicable. We did not question that the rule in actions for tort was correctly stated. That case rules this on the question of damages.

The remaining errors assigned are upon the rulings of the court on objections to testimony. These rulings are not very likely to be repeated on another trial, and are not of sufficient importance to require a review of them on this appeal.

By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.

Opinion

CROSKEY, J.

Defendant and respondent Saban Entertainment, Inc. (Saban) held the copyright for the name and likeness of “The Mighty Morphin Power Rangers.” Plaintiff and appellant Cosrich, a division of PMC, Inc. (Cosrich), was bidding against defendant and respondent Tsumura International, Inc. (Tsumura) to obtain an exclusive license to market and manufacture items using the Power Rangers name. Saban ultimately entered into an exclusive license contract with Tsumura. Cosrich brought this lawsuit alleging it actually had entered into a prior exclusive contract with Saban, which Saban had breached by entering into the contract with Tsumura. Cosrich also alleged that Tsumura had intentionally interfered with Cosrich’s contractual and business relationship with Saban.

Cosrich appeals from the judgment entered after the trial court granted the summary judgment motions of both Saban and Tsumura. We conclude that the cause of action for breach of contract against Saban must fail because there was no formalized agreement which satisfied the Copyright Act’s (17 U.S.C. § 101 et seq.) requirement of a signed writing. As to Tsumura, we hold Cosrich cannot assert a cause of action for intentional interference with contract because there was no enforceable contract with which to interfere; as a result, the only available claim against Tsumura has to be based upon an interference with prospective economic advantage. However, that is not viable in this case because Tsumura’s actions as Cosrich’s competitor were privileged as a matter of law. We therefore affirm the judgment.

Factual and Procedural Background1

In the fall of 1993, Cosrich and Tsumura were each bidding to obtain from Saban an exclusive license to manufacture and market children’s cosmetic and toiletry items using the name and likeness of the “Mighty Morphin Power Rangers.” The following chronological summary of the negotiations and correspondence between the members of this commercial triangle is sufficient to present the issues which we must decide.

On November 10, 1993, Cosrich’s president (Michael Reich) wrote a letter to Saban expressing “my Company’s interest in licensing [the Power *586Rangers] in the toiletries category.” The letter confirmed there had been discussions of a license contract with a specified 10 percent royalty rate, a “2 year term and a $50,000.00 Guarantee for the term.” Reich also expressed his hope that “we will be able to finalize this deal prior to [a meeting set for November 16].” Attached to the letter was a list of the articles for which Cosrich wished to obtain a license.

On November 18, 1993, Reich met with representatives of Saban. In the meeting, they discussed the proposed license agreement. Saban’s representatives told Reich that Saban was positively inclined toward awarding Cosrich the license. Saban’s representatives also stated that while other competitors were vying for the license and the final decision would have to be made by Saban’s president, they were quite confident Cosrich would be awarded the license. At this meeting, Reich was given a copy of Saban’s “Style Guide,” a document specifying Saban’s proprietary requirements for the licensed products, including artwork, advertising and other aspects of the product line.

Also on November 18-, 1993, Saban prepared and internally filed a “deal memo.” Deal memos were internal documents which enabled Saban’s creative manager to ascertain if submitted artwork was included in a particular license agreement. The deal memo listed Cosrich as licensee, the property was identified as the “Mighty Morphin Power Rangers,” the territory was shown as the United States, and distribution outlets were specified. The second page of the memo itemized products and estimated marketing dates.

Tsumura had also submitted a proposal to Saban, but it specified a royalty percentage of only 5 percent. Saban was insisting on a 10 percent royalty (which Cosrich had agreed to pay). Saban asked Tsumura to submit another proposal which would increase the royalty percentage to 10 percent. Tsumura refused to do so, but did submit a new proposal with a royalty rate of 8 percent.

On November 29, 1993, Reich had a conversation with Saban’s manager of domestic sales. Saban’s manager stated that Saban had decided to award the license to Cosrich in accordance with Cosrich’s proposal of November 10, 1993. The items listed in the November 10 communication were discussed, as well as certain changes and modifications which would be granted in the license. Reich agreed to all of these changes. Saban’s manager stated that she needed additional information on certain items. Cosrich’s president said this would be provided in the next few days. Reich also confirmed the agreement to increase the amount of the guarantee to $50,000, At the end of the conversation, Saban’s manager told Reich that she would be preparing *587and forwarding to him a written agreement which would incorporate the terms of the license they had agreed upon, as well as standard license provisions for agreements of that kind.

On November 29, 1993, Saban’s manager wrote Tsumura and stated that “management has decided to grant the license to another company based on their ability to commit to a higher royalty and FOS rate. ... I know [Tsumura’s offer of 8 percent] was the highest percentage you could reasonably] offer without cutting into your margins. Therefore, ... the decision has been made to go with the company who could meet the requirements.”

After receiving this communication, Tsumura’s agents had a number of telephone conversations with Saban’s representatives in which Tsumura’s strengths were emphasized. During these telephone calls, Tsumura learned that Cosrich was the competitor that had submitted a better offer.

On November 30,1993, Reich wrote Saban the following: “We very much appreciated [the] call last night informing us that you have decided to award us the license for Mighty Morphin Power Rangers in the toiletries category. Thank you ... for the confidence you have shown in Cosrich — you may be sure we will not disappoint you. [Q] As promised we are already in the process of putting together a comprehensive product line so that when Mighty Morphin Power Rangers toiletries are presented to the trade, they will not be seeing one or two items but a complete program. [*][] Thank you again . . . .”

On November 30, 1993, Cosrich began the development process preparing a Power Ranger line of toilette products. Cosrich expended thousands of dollars on drawings, artwork, clay figurines, plastic molds, labels, packaging and layouts for sales promotions.

On December 1, 1993, Reich directed the following additional letter to Saban: “This letter is in response to your question about the inclusion of figurines in our License Agreement. Please understand that these would only be used as an accessory to be sold with one or more of our licensed articles.” Proposed designs and illustrations of certain initial items were attached to the letter. Saban responded the next day, indicating it had received the designs and “[h]ope to have approvals early next week.”

A December 15, 1993, letter from Tsumura to Saban stated, “[W]e have here ... a serious communication problem that seems to be affecting the decision making process. ['¡O While we were negotiating with Saban, we thought we were the company because of our strength in the category .... *588Unfortunately as it turns out, we were not the only candidate and without any further conversation with us, a contract was sent out to another company. That was not fair or honorable to us. [<H [0]ther licensors are thrilled with our quality, commitment, and strength in the category and if you want to maximize your income, we are the company of choice. . . .” (Italics added.)

On December 21, 1993, Tsumura submitted a new proposal to Saban, increasing its guarantee to $250,000 and offering 10 percent royalty rate. In the same communication, Tsumura stated it was surprised to learn that it had any competitor for the license. Saban was apparently concerned about the negotiations and correspondence which it had just concluded with Cosrich. Thus, during the first week of January 1994, Saban countered to Tsumura with the request that Saban be indemnified for any expenses incurred as a result of legal issues which might arise if the license was awarded to Tsumura. Tsumura agreed to this request.

On January 11, 1994, Saban sent a letter to Cosrich stating that, “Saban will not be able to grant you such a license [for a line of health and beauty aids incorporating elements from the television series Mighty Morphin Power Rangers] at this time.” In mid-January, Saban entered into a written exclusive license agreement with Tsumura.2

On January 20, 1994, Cosrich filed a complaint against Saban and Tsumura.3 Cosrich sought to prevent Saban and Tsumura “from purporting to convey to others or otherwise interfere with Cosrich’s rights under its exclusive licensing agreement with [Saban] to develop, market and sell a line of children’s cosmetic and toiletry products using the names and likenesses of characters from the top rated children’s television program ‘Mighty Morphin Power Rangers.’ ” Cosrich alleged an oral agreement was formed on November 29, 1993, when Saban “accepted Cosrich’s proposal for an exclusive license on the terms set forth in [Cosrich’s] November 10, 1993, letter.” Cosrich alleged it had “an exclusive license” “for the period of two (2) years from and including November 29, 1993.”

As against Saban, Cosrich alleged (1) breach and anticipatory breach of oral agreement, (2) bad faith denial of existence of contract, (3) breach of the *589covenant of good faith and fair dealing, and (4) intentional interference with contract and prospective economic advantage. As against Tsumura, Cosrich alleged a single cause of action for “intentional interference with contract and prospective economic advantage.”

After eight months of extensive discovery which established the facts summarized above, Saban and Tsumura filed motions for summary of judgment. On January 11, 1995, the trial court granted the summary judgment motions of Saban and Tsumura.

With regard to Saban, the trial court concluded the alleged oral agreement was unenforceable under federal copyright laws and California’s statute of frauds. After concluding there was no enforceable agreement between Saban and Cosrich, Cosrich’s other causes of action against Saban were found to have no legal foundation. As to Tsumura, the trial court held there was no claim for intentional interference with contract and prospective business relations because Tsumura was acting as a competitor.4 Judgment was therefore entered in favor of Saban and Tsumura. Cosrich filed this timely appeal.

Contentions of the Parties

Cosrich contends it had an enforceable license agreement with Saban and Saban’s subsequent grant of an exclusive license to Tsumura constituted a breach of that contract. Cosrich argues the federal copyright requirement for a writing and the state statute of frauds were satisfied by various collateral documents. It also argues that federal copyright law does not apply because the grant of the exclusive license by Saban did not constitute the transfer of the requisite “ownership interest.” With respect to Tsumura, Cosrich argues that the competition privilege is not available since Tsumura’s promise to indemnify Saban was wrongful conduct and Tsumura acted after an agreement had been entered into between Saban and Cosrich, and Tsumura had knowledge of such fact.

Saban and Tsumura dispute each of these arguments. They contend that Saban had not entered into an enforceable contract with Cosrich and that Tsumura was acting as a legitimate competitor, simply increasing its offer to Saban.

*590Discussion

1. Standard of Review

The matter comes to us after the trial court granted motions for summary judgment. Such motions are to expedite litigation and eliminate needless trials. (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323 [39 Cal.Rptr.2d 296].) They are granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028 [37 Cal.Rptr.2d 431].) A defendant meets its burden upon such a motion if it proves “one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (o)(2).) Once a defendant or cross-defendant has met this threshold requirement, the “burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists . . . .” (Ibid.; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573 [37 Cal.Rptr.2d 653].)

On appeal, we exercise “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court . . . .” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d 35]; Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 579.) “[W]e construe the moving party’s affidavits strictly, construe the opponent’s affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.” (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356]; accord, Lorenzen-Hughes v. MacElhenny, Levy & Co. (1994) 24 Cal.App.4th 1684, 1686 [30 Cal.Rptr.2d 210].)

2. Due to the Failure to Comply With Federal Copyright Law Cosrich Did Not Have an Enforceable Contract With Saban

Cosrich raises issues only with regard to its claim against Saban for breach of contract.5 Cosrich contends there are issues of fact as to whether an oral agreement for the license can be enforced. This contention lacks merit. The trial court correctly concluded that any purported oral contract was unenforceable under the federal Copyright Act.

*591a. A Signed Writing Is Required by Federal Copyright Law

Section 106 of the Copyright Act sets forth the rights of copyright ownership. This includes the exclusive right to reproduce or to prepare derivative works based upon copyrighted works. (17 U.S.C. § 106(1), (2).) These rights may be transferred through an exclusive license. (17 U.S.C. § 201(d)(2).) If rights are transferred pursuant to an exclusive license, the transfer must be in writing. (17 U.S.C. § 204(a).)

“A ‘transfer of copyright ownership’ is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright . . . but not including a nonexclusive license.” (17 U.S.C. § 101, italics added.)

“A transfer of copyright ownership ... is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” (17 U.S.C. § 204(a); Konigsberg Intern. Inc. v. Rice (9th Cir. 1994) 16 F.3d 355, 356.) “The rule is really quite simple: If the copyright holder agrees to transfer ownership to another party, that party must get the copyright holder to sign a piece of paper saying so. It doesn’t have to be the Magna Charta; a one-line pro forma statement will do.” (Effects Associates, Inc. v. Cohen (9th Cir. 1990) 908 F.2d 555, 557.) The Copyright Act’s writing requirements are intended to force parties to bargain carefully and to determine precisely what rights are being transferred, and at what price. (Ibid.) “The writing should also serve as a guidepost for the parties to resolve their disputes: ‘Rather than look to the courts every time they disagree as to whether a particular use of the work violates their mutual understanding, parties need only look to the writing that sets out their respective rights.’” (Konigsberg Intern. Inc. v. Rice, supra, 16 F.3d at p. 357.) To serve the purpose of the statute, the writing “at the very least, [must] be executed more or less contemporaneously with the agreement and must be a product of the parties’ negotiations.” (Ibid.) It must evidence an intent to transfer a copyright. (Ibid.)

Unlike common law statutes of frauds (e.g., Civ. Code, § 1624), section 204 of the Copyright Act serves more than an evidentiary function. Without a writing, a transfer of copyright is not valid and the transfer is not effective. (Konigsberg Intern. Inc. v. Rice, supra, 16 F.3d at p. 357; Pamfiloff v. Giant Records, Inc. (N.D.Cal. 1992) 794 F.Supp. 933, 937.) Further, the writing requirements under section 204 are more stringent than the common law *592statute of frauds. The writing must be intended as a memorandum of contract communicated to the other party and the equitable defense of estoppel does not apply. (794 F.Supp. at p. 937; 3 Nimmer & Nimmer, Nimmer on Copyright (1995) § 10.03[A], pp. 10-38.)

b. There Was No Writing Signed by Saban, Intended as a Memorandum of Contract, Communicated to Cosrich, Delineating the Terms of the Agreement

Cosrich contends the written contract between itself and Saban consisted of a series of documents. According to Cosrich, these documents were (1) its proposal, (2) Saban’s internal deal memorandum, (3) license agreements Saban had with other entities (see fn. 3, ante), and (4) Saban’s November 29, 1993, letter sent to Tsumura. However, these documents do not satisfy the Copyright Act. There was no memorandum communicated to the other party which was intended as a memorandum of contract.

Cosrich’s proposal was simply that, a proposal to deal; it did not formalize a meeting of the minds. Saban’s internal deal memo was a document for its own use, drafted prior to the time Cosrich stated an agreement was reached. It was placed in Saban’s personal files, was not communicated to anyone and was not intended to be a memorandum of an agreement to transfer. It simply reflected the terms of a pending proposal and would have had significance only in the event that an exclusive license agreement ultimately was signed with Cosrich.

As to the contracts Saban had with other entities, Cosrich does not suggest it discussed with Saban the terms contained in these agreements; nor were these other contracts ever communicated to Cosrich. Cosrich cannot simply graft provisions from contracts Saban had with other, unrelated entities, and unilaterally import those terms into its own contract. (Friedman v. Bergin (1943) 22 Cal.2d 535, 537-538 [140 P.2d 1].)

Lastly, Saban’s November 29,1993, letter was sent to Tsumura. It was not directed to Cosrich. While it stated Saban had “decided to grant the license to another company,” it never mentioned Cosrich by name, did not detail terms of a contract, nor was it intended as a contract.

Even taken together, these documents do not satisfy the Copyright Act. There was no writing signed by Saban, communicated to Cosrich which was intended to be a license agreement with Cosrich.

*593c. The Grant of an Exclusive License Constitutes a “Transfer of Ownership”

Nonexclusive licenses can be granted orally because they are specifically excluded from the definition of a “transfer of copyright ownership.” (17 U.S.C. § 101; Effects Associates, Inc. v. Cohen, supra, 908 F.2d at p. 558.) Cosrich contends the writing requirement of section 204 of the Copyright Act does not apply because the parties did not intend to transfer an exclusive copyright ownership in the Power Rangers. Cosrich argues the agreement was for a “nonexclusive” license. This contention lacks merit; indeed, its assertion by Cosrich is disingenuous.

The entire premise of Cosrich’s lawsuit was based upon the claim that it had an exclusive agreement with Saban. Cosrich repeatedly pled it had an “exclusive licensing agreement with [Saban] to develop, market and sell a line of children’s cosmetic and toiletry products . . . .” We take as conclusive admissions of truth the statements in Cosrich’s pleadings. (Pinewood Investors v. City of Oxnard (1982) 133 Cal.App.3d 1030, 1035 [184 Cal.Rptr. 417]; Coy v. County of Los Angeles (1991) 235 Cal.App.3d 1077, 1088, fn. 7 [1 Cal.Rptr.2d 215].)

Cosrich, argues that there was no intent to transfer an exclusive license because there was no intent to transfer an entire bundle of rights.6 However, the Copyright Act specifically contemplates dividing exclusive copyright interests. (17 U.S.C. § 201(d)(2); Wales Indus. Inc. v. Hasbro Bradley, Inc. (D.C.N.Y. 1985) 612 F.Supp. 510, 514, disapproved on another point in Hasbro Bradley, Inc. v. Sparkle Toys, Inc. (2d Cir. 1985) 780 F.2d 189, 194, fn. 7.) Narrow rights can be transferred “yet still constitute a ‘transfer of ownership,’ provided the licensed rights are exclusive.” (Library Publications, Inc. v. Medical Economics Co. (E.D.Pa. 1982) 548 F.Supp. 1231, 1233 affd. 714 F.2d 123; accord, 3 Nimmer & Nimmer, Nimmer on Copyright, supra, § 10.02[A] [B], pp. 10-23 to 10-27.) Thus, even if the rights to be conveyed were narrow, since an exclusive license was contemplated, a writing was required.7

*5943. Since Cosrich Did Not Have an Enforceable Contract With Saban, It Is Limited to a Cause of Action Against Tsumura for Interference With Prospective Economic Advantage

Cosrich pled one cause of action against Tsumura, labeling it “interference with contract and prospective economic advantage.”8 As such, Cosrich inartfully combined two torts, interference with contract and interference with prospective economic advantage. We have already concluded that any purported contract with Cosrich did not satisfy the writing requirements of the Copyright Act. Therefore, the “contract” on which Cosrich relies was unenforceable. Before we can determine if summary judgment was appropriately granted as to the interference cause of action against Tsumura, we must discuss these two business torts and the relevancy of the unenforceable contract between Cosrich and Saban.9

a. Interference With Contract—Interference With Prospective Economic Advantage

Interference with contract has been referred to as a species of the broader tort of interference with prospective economic relations.10 (Rasparian v. County of Los Angeles (1995) 38 Cal.App.4th 242, 260 [45 Cal.Rptr.2d 90].) The two torts had their origin in the same line of cases and the *595discussions often become muddied. (Della Penna v. Toyota Motor Sales, U.S.A., Inc., supra, 11 Cal.4th at pp. 381-391 (Della Penna).) Both torts enable a party to a contract to sue a stranger to that contract for interfering with the contract and both require an intentional act. (Pacific Gas & Electric v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 [270 Cal.Rptr. 1, 791 P.2d 587].)

A stranger to a contract may be liable in tort for “intentionally interfering with the performance of the contract. [Citations.] The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pacific Gas & Electric v. Bear Stearns & Co., supra, 50 Cal.3d at p. 1126.)

“The tort of intentional . . . interference with prospective economic advantage imposes liability for improper methods of disrupting or diverting the business relationship of another which fall outside the boundaries of fair competition. [Citation.] It is premised upon the principle, ‘ “[e]veryone has the right to establish and conduct a lawful business and is entitled to the protection of organized society, through its courts, whenever that right is unlawfully invaded.”’[Citation.]” (Settimo Associates v. Environ Systems, Inc. (1993) 14 Cal.App.4th 842, 845 [17 Cal.Rptr.2d 757], italics added.) “The elements of the tort include (1) the existence of a prospective business relationship containing the probability of future economic rewards for plaintiff; (2) knowledge by defendant of the existence of the relationship; (3) intentional acts by defendant designed to disrupt the relationship; (4) actual causation; and, (5) damages to plaintiff proximately caused by defendant’s conduct. [Citation.] The general wrong inherent in this tort is the unlawful interference with a business opportunity through methods which are not within the privilege of fair competition. [Citation.]” {Ibid..; accord, Rest.2d Torts, § 766.)

b. Pre-Della Penna California Case Authority

In its simplest terms, to be liable for inducing breach of contract, there must be a valid contract. (Pacific Gas & Electric v. Bear Stearns & Co., supra, 50 Cal.3d at p. 1126.) In comparison, a cause of action for interference with prospective economic advantage necessarily assumes that a contract has not yet been formulated. However, even this seemingly simple line of demarcation is blurred. A “valid” contract has not heretofore been defined *596as synonymous with an “enforceable” contract. This issue is raised when there is conduct amounting to a tortious interference, yet there is no enforceable contract. Typically discussed when a contract cannot be enforced due to the statute of frauds, the issue can also arise if a contract is voidable by reason of containing uncertain terms, lack of consideration or lack of mutuality. (Rest.2d Torts, § 766, com. f.)

In Zimmerman v. Bank of America (1961) 191 Cal.App.2d 55 [12 Cal.Rptr. 319], the appellate court held causes of action for both torts may be pled even if the underlying contract was “voidable.” In Zimmerman a real estate agent’s lawsuit against a bank alleged the bank maliciously induced third parties to breach the agent’s oral agreement to arrange for the sale of property. The brokerage agreement fell outside the statute of frauds, and thus was voidable. Zimmerman held the agent could nonetheless state a cause of action against the bank. Zimmerman focused on the philosophical underpinnings of these two business torts which is the interference with an advantageous relationship, “not necessarily the breach of a contract.” (Id. at p. 57.) “The tort of interference with an advantageous relationship, or with a contract, does not, however, disintegrate because it relates to a contract not written or an advantageous relation not articulated into a contract. The nature of the tort does not vary with the legal strength, or enforceability, of the relation disrupted. The actionable wrong lies in the inducement to break the contract or to sever the relationship, not in the kind of contract or relationship so disrupted, whether it is written or oral, enforceable or not enforceable." (Ibid.) Zimmerman also reasoned that even though the party to the unenforceable contract could stand on the statute of frauds and not be held for a breach, the third party bank could not take advantage of such a defense. (Id. at pp. 60-61.)

The reasoning of Zimmerman has been adopted in a number of California cases.11 However, there is confusion as to whether its holding is applicable to both interference with contract as well as interference with prospective economic relations. (Pacific Gas & Electric v. Bear Stearns & Co., supra, 50 Cal.3d at p. 1128, fn. 4; Di Lorenzo v. Stewart Title Guar. Co. (1965) 232 Cal.App.2d 839, 843 [43 Cal.Rptr. 261].) Many cases deal only with, or seem to deal only with, the tort of interference with prospective economic relations (Buckaloo v. Johnson, supra, 14 Cal.3d 815; Shida v. Japan Food *597 Corp. (1967) 251 Cal.App.2d 864 [60 Cal.Rptr. 43]), and at least one commentator suggests Zimmerman’s holding is properly limited to cases of prospective advantage. (3 Levy et al., Cal.Torts (1995) §40.111 [5], pp. 40-152 to 40-153.)12

The lack of clear lines distinguishing the two torts is aggravated because in discussing if a “valid” contract is required, the cases also make a distinction between contracts which are “void” as compared to those which are “voidable.” (Shamblin v. Berge (1985) 166 Cal.App.3d 118, 124 [212 Cal.Rptr. 313].) It is settled that if a contract is “void,” there can be no claim for interference with contract; there may only be a cause of action for interference with a prospective relationship. (Ibid., citing Prosser & Keeton, Torts (5th ed. 1984) § 129, pp. 994-995, and Rest.2d Torts, § 766, com. f, at p. 10; Mindenberg v. Carmel Film Productions (1955) 132 Cal.App.2d 598, 602 [282 P.2d 1024]; cf. A-Mark Coin Co. v. General Mills, Inc. (1983) 148 Cal.App.3d 312, 323 [195 Cal.Rptr. 859] distinguished in SCEcorp. v. Superior Court (1992) 3 Cal.App.4th 673, 678-679 [4 Cal.Rptr.2d 372].) Relying on Zimmerman, however, some cases seemed to hold that if the contract is merely “voidable” then an action for interference with contract will lie. (E.g., Kozlowsky v. Westminster Nat. Bank (1970) 6 Cal.App.3d 593, 598 [86 Cal.Rptr. 52]; Shamblin v. Berge, supra, 166 Cal.App.3d at p. 124.)

The distinction, which permits claims based upon a “voidable” but not a “void” contract is premised upon the contract principle that a “contract” is an enforceable promise and that a promise may be valid, even though its resulting contract may be voidable. (Rest.2d Torts, § 766, com. f.)13 In contrast, a “void” contract, e.g., one lacking legal subject matter or consideration, or violating public policy or statutory law, is a “promise for breach of which the law neither gives a remedy nor otherwise recognizes a duty of performance by the promisor . . . .” (Rest.2d Contracts, § 7, com. (a).)

*598c. Case Authority in Non-California Jurisdictions

Various American jurisdictions have taken differing views as to the effect a “void,” “voidable,” or “invalid” contract has on these two torts. Some jurisdictions group the two torts together and merely discuss “void” versus “voidable” contracts. Others formulate the discussion in terms of the specific ground for unenforceability and may, for example, permit causes of action if the defect is due to the statue of frauds, but not if unenforceability is based upon uncertainty. (See Annot. (1979) 96 A.L.R.3d 1294, and later cases (1995 pocket supp.) pp. 267-270; see also Rest.2d Torts, § 766, com. f.)

Other jurisdictions, however, have begun to formulate clear lines of demarcation based upon more logical and understandable rules. In these jurisdictions, to plead a cause of action for interference with contract, an enforceable contract is required.14 Otherwise, the appropriate cause of action is intentional interference with a prospective relationship and the plaintiff must then prove an unlawful motive for the action as well as cope with a broader competition privilege.

In Guard-Life Corp. v. S. Parker Hardware Mfg. (1980) 428 N.Y.S.2d 628 [50 N.Y.2d 183, 406 N.E.2d 445], the New York high court was faced with a distributorship contract which was interfered with by another. The underlying contract was unenforceable for lack of mutuality. The court concluded that only a cause of action for intentional interference with prospective business relations could be brought, and not a claim for intentional interference with contract. (Accord, Nifty Foods Corp. v. Great Atlantic & Pac. Tea Co. (2d Cir. 1980) 614 F.2d 832, 837, superseded by statute on another point as stated in Rosenfeld v. Basquiat (2d Cir. 1996) 78 F.3d 84, 93.)

Guard-Life reasoned that “The distinction . . . between the possible liability of a competitor for interference with performance of an existing contract and the more demanding requirements to establish liability for interference with prospective contractual relations reflects a recognition of the difference in the two situations in the relationship of the parties and in *599the substance and quality of their resulting interests; greater protection is accorded an interest in an existing contract (as to which respect for individual contract rights outweighs the public benefit to be derived from unfettered competition) than to the less substantive, more speculative interests in a prospective relationship (as to which liability will be imposed only on proof of more culpable conduct on the part of the interferer). [H . . . [If the contract is voidable for lack of mutuality] ... the contract will continue to be operational until action on the part of the other contracting party brings it to a halt .... [D ... [H .. . [T]he state of mind of the interfering tort-feasor [should not] be determinative. While it must be established, as a threshold predicate for any claim of tortious interference, that the alleged tort-feasor knew that his competitor had a contract with the third party, as a practical matter he will usually be totally unaware of, and customarily indifferent to, the legal particulars of that contract .... He will seldom if ever know whether the third party has a right to terminate or is entitled to avoid the contract. . . . [*]□ In sum, the imposition of liability for intentional interference with performance of a contract . . . must depend on the worth and significance of the objective interest to be protected. [When] a contract . . . may be avoided by the other contracting party at his election ... the party seeking to impose liability enjoys no legally enforceable right to performance; his interest is a mere expectancy—a hope of future contractual relations.” (Guard-Life Corp. v. S. Parker Hardware Mfg., supra, 406 N.E.2d at pp. 449-450, italics added.)15

d. Under Della Penna, If There Is No Enforceable Contract, the Plaintiff Is Limited to a Cause of Action for Interference With Prospective Economic Advantage

In our view, the line of demarcation in Guard-Life is proper. It is logical to force the plaintiff to plead and prove an enforceable contract when stating a cause of action for intentional interference with contract. If a party is not obligated to perform a contract and may refuse to do so at his election without penalty, then the other party to that agreement enjoys nothing more than an expectancy. A stranger intentionally interfering with that relationship quite obviously does not disturb an enforceable contract but only a *600 prospective economic relationship. Thus, there should be no distinction between an underlying contract which is “void” or “voidable,” at least with respect to the question of whether the injured plaintiff should be limited to a cause of action for interference with a prospective relationship when either contractual defect is present.

Impetus was given to this view by the Supreme Court’s decision in Della Penna. There, the court addressed one area of confusion with regard to the tort of interference with prospective economic relations, holding a plaintiff had the burden to plead and prove that the interference was wrongful, and that something (which the court declined to identify or define) more than the interference itself, had to be established. In reaching this conclusion, the Supreme Court noted the “need to draw and enforce a sharpened distinction between claims for the tortious disruption of an existing contract and claims that a prospective contractual or economic relationship has been interfered with by the defendant. . . . [I]n our view and that of several other courts and commentators, the notion that the two torts are analytically unitary and derive from a common principle sacrifices practical wisdom to theoretical insight, promoting the idea that the interests invaded are of nearly equal dignity. They are not.

“The courts provide a damage remedy against third party conduct intended to disrupt an existing contract precisely because the exchange of promises resulting in such a formally cemented economic relationship is deemed worthy of protection from interference by a stranger to the agreement. Economic relationships short of contractual, however, should stand on a different legal footing as far as the potential for tort liability is reckoned. Because ours is a culture firmly wedded to the social rewards of commercial contests, the law usually takes care to draw lines of legal liability in a way that maximizes areas of competition free of legal penalties.

“A doctrine that blurs the analytical line between interference with an existing business contract and interference with commercial relations less than contractual is one that invites both uncertainty in conduct and unpredictability of its legal effect. The notion that inducing the breach of an existing contract is simply a subevent of the ‘more inclusive’ class of acts that interfere with economic relations, while perhaps theoretically unobjectionable, has been mischievous as a practical matter. Our courts should, in short, firmly distinguish the two kinds of business contexts, bringing a greater solicitude to those relationships that have ripened into agreements, while recognizing that relationships short of that subsist in a zone where the rewards and risks of competition are dominant.” (Della Penna, supra, 11 Cal.4th at p. 392, italics in 2d & 3d pars, added.)

*601Recognizing the logic of the court’s analysis in Guard-Life and giving obedience to the mandate of Della Penna, we are compelled to conclude that a cause of action for intentional interference with contract requires an underlying enforceable contract. Where there is no existing, enforceable contract, only a claim for interference with prospective advantage may be pleaded. To do otherwise unnecessarily confuses the two torts and fails to recognize their inherent differences. The tort of interference with contractual relations protects an existing, formally cemented economic relationship. The tort of interference with prospective business relations protects nonformalized or anticipated business relationships which are reasonably certain to occur, but which are nonetheless prospective. Thus, if a plaintiff is to be successful in the former, it is necessary that an enforceable contract be pled and proven.

Requiring a plaintiff to prove an enforceable contract in support of an action for intentional interference with contract creates a critical distinction between the two torts. It defines their boundaries. It also gives greater dignity to a formalized, enforceable agreement. “A party to an enforceable contract possesses a clearly understood expectancy of receiving the contract’s benefits. An individual pursuing a mere business relationship and seeking to consummate a prospective contractual agreement has a significantly lesser expectancy of economic gain. Therefore, parties conducting business without a valid subsisting contract who possess only a prospective hope of a contractual relationship are obligated to accept a more aggressive exercise of the competing rights of others. Accordingly, the law affords a significantly expanded latitude for third party interference with a prospective contractual relationship than with a valid existing contract. [The Tort of Interference with Contract: An Argument for Requiring a “Valid existing Contract” to Restrain the Use of Tort Law in Circumventing Contract Law Remedies (1991) 22 Tex. Tech L.Rev. 123, 136-137, fns. omitted.)

We thus see no practical distinction between the prospective nature of a relationship based on pending negotiations and one based on an actual, but unenforceable agreement. In order to be valuable to the plaintiff, both depend on the willingness of the other “contracting” party to conclude or perform the “agreement,” an act which the other party is not legally required to do. Further, it makes no logical sense to differentiate between “void” or “voidable” contracts. In either situation, the other party to the contract controls performance and can elect to continue to perform or discontinue performance, without concern for contractual liability. Permitting an aggrieved party to sue for prospective interference only “preserves the concept *602of fair competition while refusing to grant a party a benefit to which he is not entitled.” (Grothe, Interference With Contract in the Competitive Marketplace (1989) 15 Wm. Mitchell L.Rev. 453, 464.)

These two distinct torts have been formulated in recognition of the need to balance two different interests—the need for stability in expectancy of contracts and the need to encourage competition. The distinction between the two lies in the different balance given to these concepts. By limiting the plaintiff to a cause of action for prospective advantage when there is no underlying enforceable contract, a proper balance is achieved. It forces the plaintiff, who now must rely on the prospective tort, to provide evidence of wrongful conduct demonstrating an “ ‘intent to do something which takes the defendant’s acts beyond those of a mere competitor securing business for himself.’ [Citation.]” (Della Penna, supra, 11 Cal.4th at p. 391.)

This conclusion also provides a realistic foundation for litigation and recognizes the practical realities of administering these cases in the courts. Our conclusion does not deprive a plaintiff from recovering from a wrongdoer. Rather, it merely recognizes the importance of enforceable contracts. If there is an enforceable contract, the plaintiff may plead a cause of action against a stranger for interfering with that contract. If there is no enforceable contract, for whatever reason, the plaintiff may only plead a cause of action against the stranger for intentional interference with prospective economic advantage. In the later situation, the defendant third party has a broader privilege of competition.

4. Plaintiffs Cause of Action for Interference With Prospective Economic Advantage Is Defeated by the Competition Privilege

a. The Plaintiff s Additional Burden Under Della Penna and the Defendant’s Privilege of Competition

With respect to the tort of interference with prospective economic advantage the burden under Della Penna requires a plaintiff to plead and prove as part of its case-in-chief that the defendant not only knowingly interfered with the plaintiff’s expectancy, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself (Della Penna, supra, 11 Cal.4th at pp. 378-379, 392-393, adopting and modifying BAJI No. 7.82, italics added.) “Defendant’s liability may arise from improper motives or from the use of improper means. They may be wrongful by reason of a statute or other regulation, or a recognized rule of common law or perhaps an established standard of a trade or profession.” (Top Serv. Body Shop, Inc. v. Allstate Ins. Co. (1978) 283 Or. 201 [582 P.2d *6031365, 1371], fn. omitted.) Commonly included among improper means are actions which are independently actionable, violations of federal or state law or unethical business practices, e.g., violence, misrepresentation, unfounded litigation, defamation, trade libel or trade mark infringement. (Id.., 582 P.2d at p. 1371, fn. 11.)16 Once the plaintiff has proven an improper motive or an act by improper means, the defendant has the burden of proving it was privileged to act as a competitor.

“Under the privilege of free competition, a competitor is free to divert business to himself as long as he uses fair and reasonable means.” (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1153 [265 Cal.Rptr. 330].) “[T]he competition privilege is defeated only where the defendant engages in unlawful or illegitimate means.” (San Francisco Design Center Associates v. Portman Companies (1995) 41 Cal.App.4th 29, 42 [50 Cal.Rptr.2d 716], italics added.)17 “ ‘The policy of the common law has always been in favor of free competition, which proverbially is the life of trade.’ ” (A-Mark Coin Co. v. General Mills, Inc., supra, 148 Cal.App.3d at p. 323.) “Ours is a competitive economy in which business entities vie for economic advantage. . . . [Success goes to him who is able to induce potential customers not to deal with a competitor.” (Buckaloo v. Johnson, supra, 14 Cal.3d at p. 828.) “[Competition in business, though carried to the extent of ruining a rival, is not ordinarily actionable provided that the competition does not involve wrongful conduct such as fraud, misrepresentation, intimidation, coercion, obstruction or molestation of the rival or his servants or workmen, or the procurement of the violation of the contractual relationship.” (C. Pappas Co., Inc. v. E. & J. Gallo Winery (D.C.Cal. 1985) 610 F.Supp. 662, 669, affd. 801 F.2d 399; Charles C. Chapman Building Co. v. California Mart (1969) 2 Cal.App.3d 846, 857 [82 Cal.Rptr. 830].)

“ ‘[I]t is no tort to beat a business rival to prospective customers. Thus, in the absence of prohibition by statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may cut *604rates or prices, allow discounts or rebates, enter into secret negotiations behind the plaintiff’s back, refuse to deal with him or threaten to discharge employees who do, or even refuse to deal with third parties unless they cease dealing with the plaintiff, all without incurring liability.’ [Citation.]” (A-Mark Coin Co. v. General Mills, Inc., supra, 148 Cal.App.3d at pp. 323-324.) Such acts merely maximize competition in a competitive marketplace. (Cf. Della Penna, supra, 11 Cal.4th at p. 392.) Thus, there is no tort for offering quantity discounts (C. Pappas Co., Inc. v. E. & J. Gallo Winery, supra, 610 F.Supp. at p. 669) and it is not actionable to outbid a competitor for a deal. (Settimo Associates v. Environ Systems, Inc., supra, 14 Cal.App.4th 842.)

b. The Record Reflects No Basis for the Tort of Prospective Economic Advantage Against Tsumura

As already noted, the cause of action stated by Cosrich against Tsumura combined the tort of intentional interference with contract and the tort of intentional interference with prospective economic advantage. Since no enforceable contract existed between Cosrich and Saban, due to the lack of a writing sufficient to satisfy the Copyright Act, a cause of action for intentional interference with contract cannot be stated.18 If Cosrich is to have any claim at all, it must rely solely on the tort of intentional interference with prospective economic advantage.

Tsumura was competing with Cosrich for the exclusive license. Saban bargained with each company and ultimately decided to enter into a contract with Tsumura. Before that happened, however, on November 29, 1993, Tsumura was notified that Saban had decided to grant the license to another company. Contrary to Cosrich’s claim, this communication did not preclude Tsumura from continuing to pursue the deal, to contact Saban or to continue to negotiate. Tsumura’s actions after that time were in pursuit of an exclusive license which had not yet been formally granted to Cosrich. On December 15, 1993, when Tsumura communicated with Saban, it noted it believed “a contract was sent to another . . . .” However, the clear goal of this letter, which began “We . . . have ... a serious communication problem . . . ,” was to correct any communication problems and request that Saban reconsider any decision it had made.

In pursuing the exclusive license, Tsumura’s actions were neither underhanded, immoral nor wrongful. Tsumura was actively pursuing a business *605deal—that is what competition is all about. Further, although Cosrich suggests Tsumura used confidential information obtained from Saban when Tsumura increased its offer, Cosrich does not contend it gave that information to Saban in confidence. Saban was trying to obtain the best deal it could when it requested a higher royalty rate from Tsumura. It was playing one competitor against another to increase the value of its bargain. This was not a breach of a fiduciary or confidential relationship. (Compare with TriGrowth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg, supra, 216 Cal.App.3d 1139.) This was a marketplace in action. Saban sought the most efficient use of its asset, the right to license its popular and well-known products.

Further, the indemnity agreement requested by Saban and granted by Tsumura was fair play. By agreeing to indemnify Saban, Tsumura assumed a potential obligation of Saban, thereby increasing the value of Saban’s bargain. It was the direct result of hard negotiating by Saban to obtain the best deal possible. It simply increased the consideration being paid for the license. The indemnity agreement is not against public policy as it does not encourage litigation that was not otherwise likely to occur; it merely reallocates the cost of that event. Further, it does not violate any established business ethics. Saban knew that no written contract existed which would satisfy the Copyright Act’s writing requirement. Thus, it could have simply walked away from any negotiations with Cosrich, and not have been held liable. By accepting Tsumura’s promise to assume the cost of any potential litigation, Saban was simply making a business decision to take Tsumura’s better offer knowing it would be protected if litigation subsequently was commenced by Cosrich. There was no fraud, intimidation, coercion or duress. We see no conduct which rises to what Della Penna described as actions which are “wrongful by some legal measure.” Tsumura’s conduct was neither unlawful nor illegitimate.19

*606Conclusion

We have concluded that there could be no tort for interference with contractual relations because no enforceable contract existed. Cosrich did not come forward with any evidence to show there was a triable issue of fact on that issue. For the same reason Cosrich’s breach of contract action against Saban also fails. Finally, Tsumura has demonstrated that there was no basis for Cosrich’s claim of interference with prospective economic advantage. There was no showing by Cosrich that Tsumura had engaged in any wrongful or illegitimate conduct beyond the act of interference itself. This record reflects that Tsumura was simply engaging in hard-nosed and ultimately successful bargaining for the exclusive license also sought by Cosrich. Tsumura was fully protected by the broad competition privilege. The trial court did not err in granting summary judgment in its favor.

Disposition

The judgment is affirmed. Saban and Tsumura shall recover their costs on appeal.

Klein, P. J., and Kitching, J., concurred.

AMENDED OPINION *

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 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 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. *493While 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 tracks 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 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 jaekhammered 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 oeea-*494sionally tell Cabaness that he had a “piss poor attitude.” On one occasion, Thomas told 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 dys-thymia 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 Ca-baness, 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 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 Michael-is, 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) Ca-baness 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 *495judgment, 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 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, 104 P.3d 1208. 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 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 *496for 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 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 Rether-ford, 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 “[although 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 *497when 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, 102 P.3d 774. Like the court of appeals, we find the standard set forth in Retherford to be burdensome and generally unhelpful when confronted with 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, 123 Idaho 598, 850 P.2d 749, 755 (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, 207 Ill.2d 263, 278 Ill.Dec. 228, 798 N.E.2d 75, 89 (2003) (stating that a claim of intentional infliction of emotional distress is a “continuing tort,” and therefore, “a plaintiffs 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 in accord with such an approach. See, e.g., Feltmeier, 278 Ill.Dec. 228, 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.1999) (“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 Ca-baness’ 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.

*498 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 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. Knigh-ton are conclusory and insufficient to support a finding that Mr. Thomas engaged in the requisite extreme and outrageous conduct necessary to constitute a claim 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 Mr. Thomas said, *499in the presence of the other employees, that he was considering firing Cabaness. These assertions are purely factual and noneonclu-sory, 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’ Condtict 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.

¶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-day 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, 28 Utah 2d 399, 503 P.2d 449, 450 (1972) (quoting Restatement (Second) of Torts § 46 emt. 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 Ca-baness with the intent to inflict emotional distress. Rather, Defendants argue that Mi-chaelis 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 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 *500emotional 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, 21 P.3d 198, (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, 70 P.3d 17 (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 “ass hole.” 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’ 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 *501have 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 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 CA-BANESS 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 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 *502and 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.

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.3d 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, 99 P.3d 842). 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, 122 P.3d 622 (“[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, 122 P.3d 622 (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 therefore “must *503meet the requirements for an offer of a unilateral contract.” Morton Thiokol, 818 P.2d at 1001-02. Specifically, “[tjhere 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 nonexistence 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 nonexistence 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 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 eontain[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 *504instance, 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 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.... ”).

¶ 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 Ca-baness 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 *505that 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.

¶ 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 plaintiffs complaint brought under section 63-30-8. Id. at 623. And 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 “[ujnless 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 *506P.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 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 rechar-acterizing 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^]” 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.

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 *507not 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, 363 Mass. 579, 296 N.E.2d 183, 188-89 (1973) (“[Tjhere is no general rule barring such items of [emotional] damagefs] in actions for breach of contract. It is all a question of the subject matter and background of the contract....”); Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816, 824 (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, 231 N.C. 10, 55 S.E.2d 810, 813 (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 be*508cause 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 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 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’ em*509ployment 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 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 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.

*510WILKINS, 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.

MOORE, Chief Justice.

The primary issue presented here is whether an owner may protect personal property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury.

We are not here concerned with a man’s right to protect his home and members of his family. Defendants’ home was several miles from the scene of the incident to which we refer infra.

*658Plaintiffs action is for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun set by defendants in a bedroom of an old farm house which had been uninhabited for several years. Plaintiff and his companion, Marvin McDonough, had broken and entered the house to find and steal old bottles and dated fruit jars which they considered antiques.

At defendants’ request plaintiff’s action was tried to a jury consisting of residents of the community where defendants’ property was located. The jury returned a verdict for plaintiff and against defendants for $20,000 actual and $10,000 punitive damages.

After careful consideration of defendants’ motions for judgment notwithstanding the verdict and for new trial, the experienced and capable trial judge overruled them and entered judgment on the verdict. Thus we have this appeal by defendants.

I. In this action our review of the record as made by the parties in the lower court is for the correction of errors at law. We do not review actions at law de novo. Rule 334, Rules of Civil Procedure. Findings of fact by the jury are binding upon this court if supported by substantial evidence. Rule 344(f), par. 1, R.C.P.

II. Most of the facts are not disputed. In 1957 defendant Bertha L. Briney inherited her parents’ farm land in Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska County where her grandparents and parents had lived. No one occupied the house thereafter. Her husband, Edward, attempted to care for the land. He kept no farm machinery thereon. The outbuildings became dilapidated.

For about 10 years, 1957 to 1967, there occurred a series of trespassing and housebreaking events with loss of some household items, the breaking of windows and “messing up of the property in general”. The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved.

Defendants through the years boarded up the windows and doors in an attempt to stop the intrusions. They had posted “no trespass” signs on the land several years before 1967. The nearest one was 35 feet from the house. On June 11, 1967 defendants set “a shotgun trap” in the north bedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun’s trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs Briney’s suggestion it was lowered to hit the legs. He admitted he did so “because I was mad and tired of being tormented” but “he did not intend to injure anyone”. He gave no explanation of why he used a loaded shell and set it to hit a person already in the house. Tin was nailed over the bedroom window. The spring gun could not be seen from the outside. No warning of its presence was posted.

Plaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddyville, seven miles from the old house. He had observed it for several years while hunting in the area and considered it as being abandoned. He knew it had long been uninhabited. In 1967 the area around the house was covered with high weeds. Prior to July 16, 1967 plaintiff and McDonough had been to the premises and found several old bottles and fruit jars which they took and added to their collection of antiques. On the latter date about 9:30 p. m. they made a second trip to the Briney property. They entered the old house by removing a board from a porch window which was without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house. As he started to open the north bedroom door the shotgun went off striking him in the right leg above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by Mc*659Donough’s assistance was plaintiff able to get out of the house and after crawling some distance was put in his vehicle and rushed to a doctor and then to a hospital. He remained in the hospital 40 days.

Plaintiff’s doctor testified he seriously considered amputation but eventually the healing process was successful. Some weeks after his release from the hospital plaintiff returned to work on crutches. He was required to keep the injured leg in a cast for approximately a year and wear a special brace for another year. He continued to suffer pain during this period.

There was undenied medical testimony plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg.

The record discloses plaintiff to trial time had incurred $710 medical expense, $2056.85 for hospital service, $61.80 for orthopedic service and $750 as loss of earnings. In addition thereto the trial court submitted to the jury the question of damages for pain and suffering and for future disability.

III. Plaintiff testified he knew he had no right to break and enter the house with intent to steal bottles and fruit jars therefrom. He further testified he had entered a plea of guilty to larceny in the nighttime of property of less than $20 value from a private building. He stated he had been fined $50 and costs and paroled during good behavior from a 60-day jail sentence. Other than minor traffic charges this was plaintiff’s first brush with the law. On this civil case appeal it is not our prerogative to review the disposition made of the criminal charge against him.

IV. The main thrust of defendants’ defense in the trial court and on this appeal is that “the law permits use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or thief”. They repeated this contention in their exceptions to the trial court’s instructions 2, 5 and 6. They took no exception to the trial court’s statement of the issues or to other instructions.

In the statement of issues the trial court stated plaintiff and his companion committed a felony when they broke and entered defendants’ house. In instruction 2 the court referred to the early case history of the use of spring guns and stated under the law their use was prohibited except to prevent the commission of felonies of violence and where human life is in danger. The instruction included a statement breaking and entering is not a felony of violence.

Instruction 5 stated: “You are hereby instructed that one may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury. Such is the rule even though the injured party is a trespasser and is in violation of the law himself.”

Instruction 6 stated: “An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out ‘spring guns’ and like dangerous devices which will likely take life or inflict great bodily injury, for the purpose of harming trespassers. The fact that the trespasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a ‘spring gun’ or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.”

Instruction 7, to which defendants made no objection or exception, stated: “To entitle the plaintiff to recover for compensatory damages, the burden of proof is upon him to establish by a preponderance of the evidence each and all of the following propositions:

“1. That defendants erected a shotgun trap in a vacant house on land owned by de*660fendant, Bertha L. Briney, on or about June 11, 1967, which fact was known only by them, to protect household goods from trespassers and thieves.

“2. That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property.

“3. That plaintiff was injured and damaged and the amount thereof.

“4. That plaintiff’s injuries and damages resulted directly from the discharge of the shotgun trap which was set and used by defendants.”

The overwhelming weight of authority, both textbook and case law, supports the trial court’s statement of the applicable principles of law.

Prosser on Torts, Third Edition, pages 116-118, states:

“...the law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant’s personal safety as to justify a self-defense...spring guns and other man-killing devices are not justifiable against a mere trespasser, or even a petty thief. They are privileged only against those upon whom the landowner, if he were present in person would be free to inflict injury of the same kind.”

Restatement of Torts, section 85, page 180, states: “The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in § 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. A posessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present.”

In Volume 2, Harper and James, The Law of Torts, section 27.3, pages 1440, 1441, this is found: “The possessor of land may not arrange his premises intentionally so as to cause death or serious bodily harm to a trespasser. The possessor may of course take some steps to repel a trespass. If he is present he may use force to do so, but only that amount which is reasonably necessary to effect the repulse. Moreover if the trespass threatens harm to property only — even a theft of property — the possessor would not be privileged to use deadly force, he may not arrange his premises so that such force will be inflicted by mechanical means. If he does, he will be liable even to a thief who is injured by such device.”

Similar statements are found in 38 Am. Jur., Negligence, section 114, pages 776, 777, and 65 C.J.S. Negligence § 62(23), pages 678, 679; Anno. 44 A.L.R.2d 383, entitled “Trap to protect property”.

In Hooker v. Miller, 37 Iowa 613, we held defendant vineyard owner liable for damages resulting from a spring gun shot although plaintiff was a trespasser and there to steal grapes. At pages 614, 615, this statement is made: “This court has held that a mere trespass against property other than a dwelling is not a sufficient justification to authorize the use of a dead*661ly weapon by the owner in its defense; and that if death results in such a case it will be murder, though the killing be actually necessary to prevent the trespass. The State v. Vance, 17 Iowa 138.” At page 617 this court said: “[T]respassers and other inconsiderable violators of the law are not to be visited by barbarous punishments or prevented by inhuman inflictions of bodily injuries.”

The facts in Allison v. Fiscus, 156 Ohio 120, 100 N.E.2d 237, 44 A.L.R.2d 369, decided in 1951, are very similar to the case at bar. There plaintiff’s right to damages was recognized for injuries received when he feloniously broke a door latch and started to enter defendant’s warehouse with intent to steal. As he entered a trap of two sticks of dynamite buried under the doorway by defendant owner was set off and plaintiff seriously injured. The court held the question whether a particular trap was justified as a use of reasonable and necessary force against a trespasser engaged in the commission of a felony should have been submitted to the jury. The Ohio Supreme Court recognized plaintiff’s right to recover punitive or exemplary damages in addition to compensatory damages.

In Starkey v. Dameron, 96 Colo. 459, 45 P.2d 172, plaintiff was allowed to recover compensatory and punitive damages for injuries received from a spring gun which defendant filling station operator had concealed in an automatic gasoline pump as protection against thieves.

In Wilder v. Gardner, 39 Ga.App. 608, 147 S.E. 911, judgment for plaintiff for injuries received from a spring gun which defendant had set, the court said: “A person in control of premises may be responsible even to a trespasser for injuries caused by pitfalls, mantraps, or other like contrivances so dangerous in character as to imply a disregard of consequences or a willingness to inflict injury.”

In Phelps v. Hamlett, Tex.Civ.App., 207 S.W. 425, defendant rigged a bomb inside his outdoor theater so that if anyone came through the door the bomb would explode. The court reversed plaintiff’s recovery because of an incorrect instruction but at page 426 said: “While the law authorizes an owner to protect his property by such reasonable means as he may find to be necessary, yet considerations of humanity preclude him from setting out, even on his own property, traps and devices dangerous to the life and limb of those whose appearance and presence may be reasonably anticipated, even though they may be trespassers.”

In United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 275, 42 S.Ct. 299, 66 L.Ed. 615, 617, the court states: “The liability for spring guns and mantraps arises from the fact that the defendant has * * * expected the trespasser and prepared an injury that is no more justified than if he had held the gun and fired it.”

In addition to civil liability many jurisdictions hold a land owner criminally liable for serious injuries or homicide caused by spring guns or other set devices. See State v. Childers, 133 Ohio 508, 14 N.E.2d 767 (melon thief shot by spring gun); Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686 (policeman killed by spring gun when he opened unlocked front door of defendant’s shoe repair shop); State v. Marfaudille, 48 Wash. 117, 92 P. 939 (murder conviction for death from spring gun set in a trunk); State v. Beckham, 306 Mo. 566, 267 S.W. 817 (boy killed by spring gun attached to window of defendant’s chili stand); State v. Green, 118 S.C. 279, 110 S.E. 145, 19 A.L.R. 1431 (intruder shot by spring gun when he broke and entered vacant house. Manslaughter conviction of owner-affirmed); State v. Barr, 11 Wash. 481, 39 P. 1080 (murder conviction affirmed for death of an intruder into a boarded up cabin in which owner had set a spring gun).

In Wisconsin, Oregon and England the use of spring guns and similar devices is specifically made unlawful by statute. 44 A.L.R., section 3, pages 386, 388.

*662The legal principles stated by the trial court in instructions 2, 5 and 6 are well established and supported by the authorities cited and quoted supra. There is no merit in defendants’ objections and exceptions thereto. Defendants’ various motions based on the same reasons stated in exceptions to instructions were properly overruled.

V. Plaintiff’s claim and the jury’s allowance of punitive damages, under the trial court’s instructions relating thereto, were not at any time or in any manner challenged by defendants in the trial court as not allowable. We therefore are not presented with the problem of whether the $10,000 award should be allowed to stand.

We express no opinion as to whether punitive damages are allowable in this type of case. If defendants’ attorneys wanted that issue decided it was their duty to raise it in the trial court.

The rule is well established that we will not consider a contention not raised in the trial court. In other words we are a court of review and will not consider a contention raised for the first time in this court. Ke-Wash Company v. Stauffer Chemical Company, Iowa, 177 N.W.2d 5, 9; In re Adoption of Moriarty, 260 Iowa 1279, 1288, 152 N.W.2d 218, 223; Verschoor v. Miller, 259 Iowa 170, 176, 143 N.W.2d 385, 389; Mundy v. Olds, 254 Iowa 1095, 1100, 120 N.W.2d 469, 472; Bryan v. Iowa State Highway Commission, 251 Iowa 1093, 1096, 104 N.W.2d 562, 563, and citations.

In our most recent reference to the rule we say in Cole v. City of Osceola, Iowa, 179 N.W.2d 524, 527: “Of course, questions not presented to and not passed upon by the trial court cannot be raised or reviewed on appeal.”

Under our law punitive damages are not allowed as a matter of right. Sebastian v. Wood, 246 Iowa 94, 100, 101, 66 N.W.2d 841, 844. When malice is shown or when a defendant acted with wanton and reckless disregard of the rights of others, punitive damages may be allowed as punishment to the defendant and as a deterrent to others. Although not meant to compensate a plaintiff, the result is to increase his recovery. He is the fortuitous beneficiary of such an award simply because there is no one else to receive it.

The jury’s findings of fact including a finding defendants acted with malice and with wanton and reckless disregard, as required for an allowance of punitive or exemplary damages, are supported by substantial evidence. We are bound thereby.

This opinion is not to be taken or construed as authority that the allowance of punitive damages is or is not proper under circumstances such as exist here. We hold only that question of law not having been properly raised cannot in this case be resolved.

Study and careful consideration of defendants’ contentions on appeal reveal no reversible error.

Affirmed.

All Justices concur except LARSON, J., who dissents.

LARSON, Justice.

I respectfully dissent, first, because the majority wrongfully assumes that by installing a spring gun in the bedroom of their unoccupied house the defendants intended to shoot any intruder who attempted to enter the room. Under the record presented here, that was a fact question. Unless it is held that these property owners are liable for any injury to a intruder from such a device regardless of the intent with which it is installed, liability under these pleadings must rest upon two definite issues of fact, i. e., did the defendants intend to shoot the invader, and if so, did they employ unnecessary and unreasonable force against him?

It is my feeling that the majority oversimplifies the impact of this case on the law, not only in this but other jurisdictions, *663and that it has not thought through all the ramifications of this holding.

There being no statutory provisions governing the right of an owner to defend his property by the use of a spring gun or other like device, or of a criminal invader to recover punitive damages when injured by such an instrumentality while breaking into the building of another, our interest and attention are directed to what should be the court determination of public policy in these matters. On both issues we are faced with a case of first impression. We should accept the task and clearly establish the law in this jurisdiction hereafter. I would hold there is no absolute liability for injury to a criminal intruder by setting up such a device on his property, and unless done with an intent to kill or seriously injure the intruder, I would absolve the owner from liability other than for negligence. I would also hold the court had no jurisdiction to allow punitive damages when the intruder was engaged in a serious criminal offense such as breaking and entering with intent to steal.

It appears to me that the learned trial court was and the majority is now confused as to the basis of liability under the circumstances revealed. Certainly, the trial court’s instructions did nothing to clarify the law in this jurisdiction for the jury. Timely objections to Instructions Nos. 2, S and 6 were made by the defendants, and thereafter the court should have been aware of the questions of liability left unresolved, i. e., whether in this jurisdiction we by judicial declaration bar the use in an unoccupied building of spring guns or other devices capable of inflicting serious injury or death on an intruder regardless of the intent with which they are installed, or whether such an intent is a vital element which must be proven in order to establish liability for an injury inflicted upon a criminal invader.

Although the court told the jury the plaintiff had the burden to prove “That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property”, it utterly failed to tell the jury it could find the installation was not made with the intent or purpose of striking or injuring the plaintiff. There was considerable evidence to that effect. As I shall point out, both defendants stated the installation was made for the purpose of scaring or frightening away any intruder, not to seriously injure him. It may be that the evidence would support a finding of an intent to injure the intruder, but obviously that important issue was never adequately or clearly submitted to the jury.

Unless, then, we hold for the first time that liability for death or injury in such cases is absolute, the matter should be remanded for a jury determination of defendant’s intent in installing the device under instructions usually given to a jury on the issue of intent.

I personally have no objection to this court’s determination of the public policy of this state in such a case to ban the use of such devices in all instances where there is no intruder threat to human life or safety, but I do say we have never done so except in the case of a mere trespasser in a vineyard. Hooker v. Miller, 37 Iowa 613 (1873). To that extent, then, this is a case of first impression, and in any opinion we should make the law in this jurisdiction crystal clear. Although the legislature could pronounce this policy, as it has in some states, since we have entered this area of the law by the Hooker decision, I believe it proper for us to declare the applicable law in cases such as this for the guidance of the bench and bar hereafter. The majority opinion utterly fails in this regard. It fails to recognize the problem where such a device is installed in a building housing valuable property to ward off criminal intruders, and to clearly place the burden necessary to establish liability.

My second reason for this dissent is the allowance of an award of punitive damages herein. Plaintiff claimed a remedy which *664our law does not allow, and the trial court should not have submitted that issue to the jury. Like the law establishing liability for installing a spring gun or other similar device, the law recognizing and allowing punitive or exemplary damages is court-made law, not statutory law. As to the property owner’s liability for exemplary damages where one is engaged in a serious criminal offense at the time of his injury, we also have a case of first impression. We have never extended this right to such a claimant, and I would not do so now. Unless we do, or there is a compelling reason or authority for such a right, which I fail to find, the trial court erred in submitting that issue to the jury. Like the case where a judgment is entered without jurisdiction of the subject matter, I would hold the award of $10,000 to plaintiff is void.

I do not wish to criticize, but believe the factual statement of the majority fails to give a true perspective of the relative facts and issues to be considered.

Plaintiff’s petition at law asking damages alleged willful and malicious setting of a trap or device for the purpose of killing or inflicting great bodily harm upon any trespasser on defendants’ property. We are, therefore, factually concerned with how such force may be properly applied by the property owner and whether his intent is relevant to liability. Negligent installation of a dangerous device to frighten and ward off an intruder or thief is not alleged, so unless the proof submitted was sufficient to establish a willful setting of the trap with a purpose of killing or seriously injuring the intruder, no recovery could be had. If the evidence submitted was such that a jury could find defendants had willfully set the spring gun with a purpose to seriously injure the plaintiff intruder, unless they were privileged under the law to set the gun under these circumstances, liability for the injury would follow.

From the record we learn that plaintiff and a companion made a second trip to a furnished but uninhabited house on defendants’ farmland in Mahaska County on the night of July 16, 1967. They tore a plank from a porch window, entered the house with an intent to steal articles therein, and in search of desired articles plaintiff came to a closed bedroom door where he removed a chair braced under the door knob and pulled the door toward him. This action triggered a single shot 20-gauge shotgun which defendants had wired to the bottom of a bed. The blast went through the door and struck plaintiff two or three inches above the right ankle.

The Mahaska County Grand Jury issued a true bill charging plaintiff with breaking and entering in the nighttime, but the county attorney accepted a plea of guilty to the lesser offense of larceny in the nighttime of property of a value of less than $20 and did not press the greater charge.

At the trial of this case Mr. Briney, one of the defendants, testified that the house where plaintiff was injured had been the home of Mrs. Briney’s parents. He said the furniture and other possessions left there were of considerable value and they had tried to preserve them and enjoy them for frequent visits by Mrs. Briney. It appeared this unoccupied house had been broken into repeatedly during the past ten years and, as a result, Mr. Briney said “things were pretty well torn up, a lot of things taken.” To prevent these intrusions the Brineys nailed the doors and some windows shut and boarded up others. Prior to this time Mr. Briney testified he had locked the doors, posted seven no trespassing signs on the premises, and complained to the sheriffs of two counties on numerous occasions. Mr. Briney further testified that when all these efforts were futile and the vandalism continued, he placed a 20-guage shotgun in a bedroom and wired it so that it would shoot downward and toward the door if anyone opened it. He said he first aimed it straight at the door but later, at his wife’s suggestion, reconsidered the aim and pointed the gun down in a way he thought would only scare *665someone if it were discharged. On cross-examination he admitted that he did not want anyone to know it was there in order to preserve the element of surprise.

Plaintiff testified he knew the house was unoccupied and admitted breaking into it in the nighttime without lawful reason or excuse. He claimed he and his companion were seeking old bottles and dated fruit jars. He also admitted breaking in on one prior occasion and stated the reason for the return visit was that “we decided we would go out to this place again and see if there was something we missed while we was out there the first time.” An old organ fascinated plaintiff. Arriving this second time, they found that the window by which they had entered before was now a “solid mass of boards” and walked around the house until they found the porch window which offered less resistance. Plaintiff said they crawled through this window. While searching the house he came to the bedroom door and pulled it open, thus triggering the gun that delivered a charge which struck him in the leg.

Plaintiff’s doctor testified that he treated the shotgun wound on the night it was sustained and for some period thereafter. The healing process was successful and plaintiff was released after 40 days in the hospital. There was medical testimony that plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg.

That plaintiff suffered a grievous wound is not denied, and that it constituted a serious bodily injury cannot be contradicted.

As previously indicated, this appeal presents two vital questions which are as novel as they are difficult. They are, (1) is the owner of a building in which are kept household furniture, appliances, and valuables, but not occupied by a person or persons, liable in damages to an intruder who in the nighttime broke into and entered the building with the intent to steal and was shot and seriously injured by a spring gun allegedly set by the owner to frighten in-traders from his property, and (2) if he is liable for compensatory damages, is this a proper case for the allowance of exemplary or punitive damages?

The trial court overruled all objections to the instructions and denied defendants’ motion for a new trial. Thus, the first question to be resolved is the status of the law in this jurisdiction as to the means of force a property owner is privileged to use to repel (1) a mere trespasser, (2) a criminal invader, thief or burglar, where he presents no threat to human life or safety, and (3) an intruder or criminal breaking and entering a dwelling which poses a threat to human life and safety. Overlooked by the majority is the vital problem relating to the relevancy and importance of the owner’s intent in placing the device.

I have been unable to find a case exactly like the case at bar, although there have been many cases which consider liability to a mere trespasser for injuries incurred by a spring gun or other dangerous instruments set to protect against intrusion and theft. True, some of these cases seem to turn on the negligence of the party setting the trap and an absence of adequate warning thereof, but most of them involve an alleged intentional tort. It is also true some hold as a matter of public policy there is liability for any injury following the setting of a device which is intended to kill or inflict great bodily injury on one coming on the owner’s property without permission, unless the invader poses a threat to human life, and this is so even though there is no statutory prohibition against the setting of spring guns in the jurisdiction.

Since our decision in Hooker v. Miller, supra, we have recognized in this state the doctrine that the owner of a premise is liable in damages to a mere trespasser coming upon his property for any injury occasioned by the unsafe condition of the property which the owner has intentionally permitted to exist, such as installed spring guns, unless adequate warning is given thereof. In *666Hooker, which involved stealing grapes from a vineyard, we held a property owner had no right to resist such a trespass by means which may kill or inflict great bodily injury to the trespasser. But it does appear therein that we recognized some distinction between a mere trespass against property and a trespass involving a serious crime or involving a dwelling. Except when the trespass involves a serious crime, a crime posing a threat to human life, it may be argued that the law in this jurisdiction should limit the right of one to protect his property, that he does not have a privilege to resist a mere trespass by using a spring gun or other device which poses a threat to life.

However, left unsettled by this and other court pronouncements is the means which may be used to repel, prevent, or apprehend a trespasser engaged in a more serious criminal offense. True, there is a line of cases which seem to apply the same rule to all criminal trespasses except those involving arson, rape, assault, or other acts of violence against persons residing on the property invaded. State v. Vance, 17 Iowa 138 (1864); State v. Plumlee, 177 La. 687, 149 So. 425 (1933); Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686 (Virginia, 1923); Simpson v. State, 59 Ala. 1, 31 Am.Rep. 1 (1877); State v. Barr, 11 Wash. 481, 39 P. 1080 (1895) ; Starkey v. Dameron, 96 Colo. 459, 21 P.2d 1112 (1933); State v. Beckham, 306 Mo. 566, 267 S.W. 817 (1924); Bird v. Holbrook, 4 Bingham’s Reports 628 (England, 1828). Also see annotation, 44 A.L.R.2d 391, § 5, and citations. There are others which at least infer that any serious law violation by the trespasser might permit the reasonable use of dangerous instrumentalities to repel the intruder and prevent loss or damage to one’s valuable property. Scheuermann v. Scharfenberg, 163 Ala. 337, 50 So. 335; Marquis v. Benfer, Tex.Civ.App., 298 S.W.2d 601 (Texas 1956); Grant v. Hass, 31 Tex.Civ.App. 688, 75 S.W. 342 (1903); Gray v. Combs, 7 J.J. Marshall 478 (Ky., 1832), 23 Am.Dec. 431; Ilott v. Wilkes, 3 B. & A. 304 (1820 K.B.).

Also see the following articles on this subject: 68 Yale Law Journal 633, Duties to Trespassers: A Comparative Survey and Revaluation; 35 Yale Law Journal 525, The Privilege to Protect Property by Dangerous Barriers and Mechanical Devices; annotation, 44 A.L.R.2d 383, Use of Set Gun, Trap, or Similar Device on Defendant’s Own Property.

Most of these discussions center around what should be public policy regarding a property owner’s right to use a dangerous weapon or instrumentality to protect his premises from intruders or trespassers, and his duty to protect the trespasser from serious injury while upon his premises.

Some states, including Wisconsin, have statutes which announce the jurisdiction’s public policy. Often they prohibit the use of spring guns or such devices to protect real and personal property, and of course in those instances a property owner, regardless of his intent or purpose, has no right to make use of them and is liable to anyone injured thereby. Since there has been no such statutory prohibition or direct judicial pronouncement to that effect prior to this time in this state, it could not be said as a matter of law that the mere placing of a spring gun in a building on one’s premises is unlawful. Much depends upon its placement and purpose. Whether an owner exceeds his privilege to reasonably defend his property by such an installation, and whether liability is incurred in a given case, should therefore depend upon the circumstances revealed, the intent of the property owner, and his care in setting the device. In any event, I question whether it should be determined solely by the results of his act or its effect upon the intruder.

It appears there are cases and some authority which would relieve one setting a spring gun on his premises of any liability if adequate warning had been given an intruder and he ignores the warning. In all of these cases there is a question as to *667the intent of the property owner in setting the device. Intent, of course, may be determined from both direct and indirect evidence, and it is true the physical facts may be and often are sufficient to present a jury issue. I think they were here, but no clear instruction was given in this regard.

If, after proper instructions, the finder of fact determines that the gun was set with an intent and purpose to kill or inflict great bodily injury on an intruder, then and only then may it be said liability is established unless the property so protected is shown to be an occupied dwelling house. Of course, under this concept, if the finder of fact determines the gun set in an unoccupied house was intended to do no more than to frighten the intruder or sting him a bit, no liability would be incurred under such pleadings as are now presented. If such a concept of the law were adopted in Iowa, we would have here a question for the fact-finder or jury as to whether the gun was willfully and intentionally set so as to seriously injure the thief or merely scare him away.

I feel the better rule is that an owner of buildings housing valuable property may employ the use of spring guns or other devices intended to repel but not seriously injure an intruder who enters his secured premises with or without a criminal intent, but I do not advocate its general use, for there may also be liability for negligent installation of such a device. What I mean to say is that under such circumstances as we have here the issue as to whether the set was with an intent to seriously injure or kill an intruder is a question of fact that should be left to the jury under proper instructions, and that the mere setting of such a device with a resultant serious injury should not as a matter of law establish liability.

In the case of a mere trespass able authorities have reasoned that absolute liability may rightfully be fixed on the landowner for injuries to the trespasser because very little damage could be inflicted upon the property owner and the danger is great that a child or other innocent trespasser might be seriously injured by the device. In such matters they say no privilege to set up the device should be recognized by the courts regardless of the owner’s intent. I agree.

On the other hand, where the intruder may pose a danger to the inhabitants of a dwelling, the privilege of using such a device to repel has been recognized by most authorities, and the mere setting thereof in the dwelling has not been held to create liability for an injury as a matter of law. In such cases intent and the reasonableness of the force would seem relevant to liability.

Although I am aware of the often-repeated statement that personal rights are more important than property rights, where the owner has stored his valuables representing his life’s accumulations, his livelihood business, his tools and implements, and his treasured antiques as appears in the case at bar, and where the evidence is sufficient to sustain a finding that the installation was intended only as a warning to ward off thieves and criminals, I can see no compelling reason why the use of such a device alone would create liability as a matter of law.

For cases considering the devices a property owner is or is not privileged to use to repel a mere trespasser, see Hooker v. Miller, supra, 37 Iowa 613 (trap gun set in orchard to repel); State v. Vance, supra, 17 Iowa 138 (1864); Phelps v. Hamlett, Tex.Civ.App., 207 S.W. 425 (1918) (bomb set in open air theater); State v. Plumlee, supra, 177 La. 687, 149 So. 425 (1933) (trap gun set in open barn) ; Starkey v. Dameron, supra, 96 Colo. 459, 21 P.2d 1112 (1933) (spring gun in outdoor automatic gas pump); State v. Childers, 133 Ohio St. 508, 14 N.E.2d 767 (1938) (trap gun in melon patch); Weis v. Allen, 147 Or. 670, 35 P.2d 478 (1934) (trap gun in junkyard); Johnson v. Patterson, 14 Conn. 1 (1840) *668(straying poultry poisoned); Bird v. Holbrook, supra, 4 Bingham’s Reports 628 (England, 1828) (spring gun in garden enclosed by wall of undisclosed height).

For cases apparently holding dangerous devices may be used to ward off and prevent a trespasser from breaking and entering into an inhabited dwelling, see State v. Vance, supra; Grant v. Hass, supra; Scheuermann v. Scharfenberg, supra; Simpson v. State, supra; United States v. Gilliam, 1 Hayw. & H. 109, 25 Fed.Cas. 1319, p. 1320, No. 15,205 a (D.C. 1882); State v. Childers, supra; Gramlich v. Wurst, 86 Pa. 74, 80 (1878).

Also, for cases considering the devices a property owner is privileged to use to repel an invader where there is no threat to human life or safety, see Allison v. Fiscus, 156 Ohio St. 120, 100 N.E.2d 237, 44 A.L.R.2d 369; State v. Barr, 11 Wash. 481, 39 P. 1080 (1895); State v. Childers, supra; Weis v. Allen, supra; Pierce v. Commonwealth, supra; Johnson v. Patterson, supra; Marquis v. Benfer, supra.

In Allison v. Fiscus, supra, at page 241 of 100 N.E.2d, it is said: “Assuredly, * * * the court had no right to hold as a matter of law that defendant was liable to plaintiff, as the defendant’s good faith in using the force which he did to protect his building and the good faith of his belief as to the nature of the force he was using were questions for the jury to determine under proper instructions.” (Emphasis supplied.)

In State v. Barr, supra, at page 1081 of 39 P., the court said: “ * * * whether or not what was done in a particular case was justified under the law must be a question of fact, or mixed law and fact, and not a pure question of law.”

In State v. Childers, supra, it is said at page 768 of 14 N.E.2d: “Of course the act in question must be done maliciously * * * and that fact must be proved and found by the jury to exist." (Emphasis supplied.)

Also see State v. Metcalfe, 203 Iowa 155, 212 N.W. 382, where this court discussed the force that a property owner may use to oppose an unlawful effort to carry away his goods, and held the essential issue in such matters which must be explained to the jury is not the nature of the weapon employed but whether the defendant employed only that degree of force to accomplish such purpose which a reasonable person would deem reasonably necessary under the circumstances as they appeared in good faith to the defendant.

Like the Ohio Supreme Court in Allison v. Fiscus, supra, I believe that the basis of liability, if any, in such a case should be either the intentional, reckless, or grossly negligent conduct of the owner in setting the device.

If this is not a desirable expression of policy in this jurisdiction, I suggest the body selected and best fitted to establish a different public policy would be the State Legislature.

The next question presented is, which view of the law set out above did the trial court take, the view that the mere setting of a spring gun or like device in defendants’ building created liability for the resulting injury, or the view that there must be a setting of the device with an intent to shoot, kill, or seriously injure one engaged in breaking and entering this house ? Appellants argue this was not made clear in the court’s instructions to the jury and, being material, is error. I agree.

They contend Instructions Nos. 2, 5 and 6, to which proper and timely exceptions were taken, are improper, that they were so inadequate and confusing as to constitute reversible error and required the trial court to grant their motion for a new trial.

Instruction No. 5 provides:

“You are hereby instructed that one may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life *669or inflict great bodily injury. Such is the rule even though the injured party is a trespasser and is in violation of the law himself.” (Emphasis supplied.)

Instruction No. 6 provides:

“An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out ‘spring guns’ and like dangerous devices which will likely take life or inflict ¡great bodily injury, for the purpose of harming trespassers. The fact that the trespasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a ‘spring gun’ or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.” (Emphasis supplied.)

Specific objections were made to Instruction No. 2, inter alia, to the statement that in this jurisdiction the use of force which may take life or inflict serious bodily injury might be used was restricted to occupied dwellings or where specific statutes permitted its use; to the reference to an Iowa case wherein the subject related to a simple trespass in a vineyard where no breaking and entry of a building was involved, without pointing out the difference as to permissible force permitted to repel one entering the owner’s buildings with intent to ravish and steal valuable personal property; and to the error resulting when the court wrongfully directed the jury to find defendants’ acts were illegal by stating “that in so doing he violated the law and became liable for injuries sustained by the plaintiff.”

In other words, defendants contended that this instruction failed to tell the jury the extent of defendants’ rights to defend against burglary in buildings other than their dwelling, inferring they have no right to employ a device which is dangerous to life and limb, regardless of its intended purpose only to ward off or scare the intruder.

Defendants also specifically objected to Instruction No. 5 because it also limited the right or privilege of one to use dangerous devices in any way to protect his property, and made it applicable to cases where the invader was in violation of the law, without classifying his offense.

Instruction No. 6 was specifically objected to as not being a proper statement of the law, as being inadequate, confusing, and misleading to the jury in regard to the vital issues in this case, because it would not be possible for a jury to understand the court when it told the jurors an owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury, and then told them a person owning premises is prohibited from setting out spring guns and like dangerous devices which will “likely” take life or inflict great bodily injury, for the purpose of harming trespassers.

Appellants argue from these instructions the jury could conclude it must find any setting of a spring gun or such other device to protect his property from a burglar or other criminal invader made the owner absolutely liable for injuries suffered by the intruder, unless the building being so protected was a dwelling, regardless of the owner’s intent and purpose in setting the device in his building. On the other hand, in Instruction No. 6 the court refers to such a setting with the intent and purpose of killing or seriously injuring the intruder in order to make the owner liable for damages.

I too find these instructions are confusing. If the court was telling the jury, as appellants contend, that an owner of a premise may not set a spring gun to protect his property unless the trespasser’s act amounts to a felony of violence and *670endangers human life, the phrase used, “for the purpose of harming trespassers”, introduces the element of intent and would tend to confuse the jury as to the law on that issue. If the issue here was that such an intent was necessary to establish liability, the instruction was erroneous and confusing; otherwise the error was without prejudice.

I would, therefore, conclude there is merit in appellants’ contention that the law was not made clear to the jury as to whether the act of placing a spring gun on this premise was prohibited by law, or whether the act of placing such a device requires a finding of intention to shoot the intruder or cause him great bodily injury to establish liability. I cannot tell whether the jury found liability on the mere act of placing the gun as Mr. Briney did in this house or on the fact that he did so with the intent to seriously harm a trespasser.

In the case at bar, as I have pointed out, there is a sharp conflict in the evidence. The physical facts and certain admissions as to how the gun was aimed would tend to support a finding of intent to injure, while the direct testimony of both defendants was that the gun was placed so it would “hit the floor eventually” and that it was set “low so it couldn’t kill anybody.” Mr. Briney testified, “My purpose in setting up the gun was not to injure somebody. I thought more or less that the gun would be at a distance of where anyone would grab the door, it would scare them”, and in setting the angle of the gun to hit the lower part of the door, he said, “I didn’t think it would go through quite that hard.”

If the law in this jurisdiction permits, which I think it does, an explanation of the setting of a spring gun to repel invaders of certain private property, then the intent with which the set is made is a vital element in the liability issue.

In view of the failure to distinguish and clearly give the jury the basis upon which it should determine that liability issue, I would reverse and remand the entire case for a new trial.

As indicated, under these circumstances the trial court should not have submitted the punitive damage issue to the jury in this case. By Instruction No. 14 the learned trial judge wrongfully instructed the jury that the law of Iowa allows a jury in such a case to award exemplary damages if it' is found that the act complained of is wanton and reckless or where the defendants are guilty of malice. True, this instruction was in accordance with certain past pronouncements of this court and no objection was taken to the substance of the instruction, but defendants have always contended under these circumstances the court should not have submitted the question of exemplary damages to the jury. We have never extended the exemplary damage law to cover such cases and I maintain we should not do so now, directly or indirectly. Without such a pronouncement to that extent, or some legislation extending that right to a person engaged in a serious criminal offense at the time of his injury, I believe the trial court possessed no jurisdiction to permit the jury to pass on such a claim, even though no objections thereto were made by the defendants.

Although this subject has been considered and discussed in several Iowa cases, including Sebastian v. Wood, 246 Iowa 94, 66 N.W.2d 841, and citations, granting exemplary damages for injury due to alleged reckless driving, and Amos v. Prom, 115 F.Supp. 127, relating to alleged mental suffering and humiliation when denied admission to a public dance hall, none seem to consider whether punitive damages are permitted where the injured party was, as here, engaged in a criminal act such as breaking and entering, burglary, or other serious offense. Also see Morgan v. Muench, 181 Iowa 719, 156 N.W. 819, and Stricklen v. Pearson Construction Co., 185 Iowa 95, 169 N.W. 628, and citations in each.

*671Although I have found no authority to assist me in my view, I am convinced it is correct in principle and should be adopted in this jurisdiction. In so doing, I adhere to the rule recognized in Amos v. Prom, supra, at 137, et seq., where it is stated: “ * * * the principle that intentional wrongful action in disregard for the rights of others amounts to conduct to which the law will attach a penalty and deterrent by way of exemplary damages.” However, I would not extend this privilege to a case where the injured party’s conduct itself was criminal and extremely violative of good public behavior.

From a general review of the subject of exemplary or punitive damages beginning with Wilkes v. Wood (1763), Lofft 1, 98 English Rep. 489, 498, which stated such “Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, * * * ”, I find that both in England and the United States the purpose of this law was to restrain arbitrary and outrageous vise of power. See 70 Harvard L.Rev. 517, 519 (1957), Exemplary Damages in the Law of Torts.

In Hawk v. Ridgway, 33 Ill. 473, 475 (1864), the Illinois court said, “Where the wrong is wanton, or it is willful, the jury are authorized to give an amount of damages beyond the actual injury sustained, as a punishment, and to preserve the public tranquillity.”

Some courts rationalize punitive damages on the basis that they provide an outlet for the injured party’s desire for revenge and thereby help keep the peace. Some others rationalize it as a punishment to defendant and to deter him and others from further antisocial conduct. It has also been said punitive damages are ordinarily a means of increasing the severity of the admonition inherent in the compensatory award. See 44 Harvard L.Rev. 1173 (1931).

A further study of this law indicates punitive damages have a direct relation to the criminal law. Historically, it was undoubtedly one of the functions of tort law to deter wrongful behavior. However, in modern times its priority has become that of compensating the victim of the injury. The business of punishing wrongdoers has increasingly become the exclusive purview of the criminal law. See Pollock and Maitland, History of English Law, Vol. II, 2d Ed. (1898), § 1, pp. 449-462.

The award of punitive damages in modern tort law gives rise to considerable anomalies. Such damages, of course, go to the private purse of the individual plaintiff and may be classified a windfall as to him in excess of his actual losses due entirely to a social judgment about defendant’s conduct.

In properly applying this law Professor McCormick, in his treatise on damages found on pages 276 and 277 in McCormick on Damages (1935), said, “Perhaps the principal advantage is that it does tend to bring to punishment a type, of cases of oppressive conduct, such as slanders, assaults, minor oppressions, and cruelties, which are theoretically criminally punishable, but which in actual practice go unnoticed by prosecutors occupied with more serious crimes. * * * The self-interest of the plaintiff leads to the actual prosecution of the claim for punitive damages, where the same motive would often lead him to refrain from the trouble incident to appearing against the wrongdoer in criminal proceedings.”

So understood, punitive damages are an adjunct to the criminal law, yet one over which the criminal law has no control, and in the United Kingdom, the land of its birth, punitive damages are close to extinct. In Rookes v. Barnard, Appeal Cases (House of Lords, 1964) 1129, at 1221 et seq., the English court of last resort confined the award of punitive damages to a very narrow range of situations. It ruled in an intentional tort case that exemplary *672damages could be awarded only in cases (1) for oppressive arbitrary, or unconstitutional acts by government servants, (2) for defendant’s conduct which had been calculated by him to make a profit for himself which might well exceed the compensation payable to the injured party, and (3) where expressly authorized by statute.

In the case at bar the plaintiff was guilty of serious criminal conduct, which event gave rise to his claim against defendants. Even so, he may be eligible for an award of compensatory damages which so far as the law is concerned redresses him and places him in the position he was prior to sustaining the injury. The windfall he would receive in the form of punitive damages is bothersome to the principle of damages, because it is a response to the conduct of the defendants rather than any reaction to the loss suffered by plaintiff or any measurement of his worthiness for the award.

When such a windfall comes to a criminal as a result of his indulgence in serious criminal conduct, the result is intolerable and indeed shocks the conscience. If we find the law upholds such a result, the criminal would be permitted by operation of law to profit from his own crime.

Furthermore, if our civil courts are to sustain such a result, it would in principle interfere with the purposes and policies of the criminal law. This would certainly be ironic since punitive damages have been thought to assist and promote those purposes, at least so far as the conduct of the defendant is concerned.

We cannot in good conscience ignore the conduct of the plaintiff. He does not come into court with clean hands, and attempts to make a claim to punitive damages in part on his own criminal conduct. In such circumstances, to enrich him would be unjust, and compensatory damages in such a case itself would be a sufficient deterrent to the defendant or others who might intend to set such a device.

The criminal law can take whatever action is appropriate in such cases, but the civil law should not compound the breach of proper social conduct by rewarding the plaintiff for his crime. I conclude one engaged in a criminal activity is an unworthy object of largesse bestowed by punitive damages and hold the law does not support such a claim to enrichment in this case.

The admonitory function of the tort law is adequately served where the compensatory damages claimed are high and the granted award itself may act as a severe punishment and a deterrence. In such a case as we have here there is no need to hold out the prospect of punitive damages as an incentive to sue and rectify a minor physical damage such as a redress for lost dignity. Certainly this is not a case where defendants might profit in excess of the amount of reparation they may have to pay.

In a case of this kind there is no overwhelming social purpose to be achieved by punishing defendants beyond the compensatory sum claimed for damages.

Being convinced that there was reversible error in the court’s instructions, that the issue of intent in placing the spring gun was not clearly presented to the jury, and that the issue as to punitive damages should not have been presented to the jury, I would reverse and remand the matter for a new trial.

The majority seem to ignore the evident issue of punitive policy involved herein and uphold the punitive damage award on a mere technical rule of civil procedure.

| iLEMMON, Justice.

This is an action by a patient against his physician for damages allegedly caused by the doctor’s failure to use surgical mesh, as requested by the patient, in repairing an incisional hernia. The principal issues before this court are (1) whether the doctor, in view of the patient’s expressed desire that mesh be used in the surgery, properly informed the patient regarding the nature of the proposed procedure and its advisability and attendant risks with and without the use of mesh, and (2) whether plaintiff proved a causal connection between (a) either any lack of informed consent or the doctor’s failure to use mesh and (b) the damages awarded for the subsequent additional surgery.

*449 Facts

In November 1987, plaintiff consulted Dr. John Dowling, a general surgeon, to repair an intracostal incisional hernia (hereinafter referred to as the cardiac incisional hernia)1 that had developed from 1985 coronary bypass surgery.

|2Plaintiff had a history of hernia problems, having undergone three unsuccessful inguinal hernia repairs by another surgeon between 1963 and 1974 before the surgeon performed a successful procedure in 1975 using surgical mesh.2 Because of his prior experience, plaintiff expressed to Dr. Dowling in 1987 his desire that the required surgery be performed with mesh.

In preparation for the surgery, plaintiff signed a consent form which stated in pertinent part:

1) I hereby authorize and consent to Dr. Dowling, M.D., and such supervising physicians, surgeons, assistants of his or her choice, to perform upon myself the following surgical, diagnostic, medical procedure Repair incisional hernia with Mesh including any necessary and advisable anesthesia.

2) I understand the nature and purpose of this procedure to be Repair Incisional Hernia with Mersilene Mesh (Underscored words are handwritten by Dr. Dowling on a printed form).

During the cardiac incisional hernia repair procedure, Dr. Dowling made the decision not to use mesh based on his intraoperative assessment of plaintiff’s condition.

Between November 1987 and April 1988, Dr. Dowling performed two additional operations on plaintiff, first to remove his diseased gallbladder and later to reclose the gallbladder surgery incision site, which had opened when plaintiff coughed.

In May 1988, plaintiff developed a large herniated area in his abdominal region. This large herniated area included the site of the small cardiac incisional hernia repair performed by Dr. Dowling.

Dr. C. Edward Foti surgically repaired the large herniated area, using mesh primarily because of the size of the hernia. Plaintiff subsequently developed a 13small incisional hernia at the site of the surgical drain placed in plaintiff’s abdomen during the surgery performed by Dr. Foti. This small hernia was repaired by Dr. Foti using mesh.

Plaintiff filed this action against Dr. Dowl-ing, asserting claims based on medical malpractice and on lack of adequate informed consent. Plaintiff alleged that Dr. Dowling’s failure to use mesh to repair the cardiac incisional hernia in 1987 caused the subsequent herniation in 1988 and necessitated further surgery.

The jury rendered a verdict in favor of plaintiff for $300,000.3 Answering special interrogatories, the jury found that Dr. Dowl-ing was liable for damages based both on medical malpractice and on failure to obtain informed consent.4

The court of appeal affirmed in a divided decision. 95-1557 (La.App. 4th Cir. 5/15/96); 676 So.2d 602. The majority opinion, based on lack of informed consent, concluded that Dr. Dowling had failed to disclose the material information that he would not use mesh if he, in exercising his medical judgment, reevaluated the need for mesh during the sur*450gery. The majority thus did not reach the medical malpractice issue, although the concurring judge expressed her opinion that both lack of informed consent and medical malpractice had been proved. The dissenting judge concluded that Dr. Dowling, after making the promise so important to plaintiff, had no right to disregard the promise, but that plaintiff failed to prove Dr. Dowling’s conduct caused the claimed damages or that the use of mesh would have prevented the subsequent problems. The dissenting judge would* have awarded only nominal damages.

14On Dr., Dowling’s application, this court granted certiorari to review the significant informed consent issue, as well as the related causation issue. 96-1575 (La. 10/4/96); 679 So.2d 1363.

Lack of Informed Consent Generally

The requirement of consent to medical treatment was initially based on the idea that a competent person has the right to make decisions regarding his or her own body. As Justice Cardozo stated in Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914), “[ejvery human being of adult years and sound mind has a right to determine what shall be done with his own body and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.”

After the early cases struggled with the concept of consent that may be implied from the circumstances, including the patient’s silence, there was a gradual development of a duty imposed on doctors to disclose information to the patient in order to afford the. patient the opportunity of making an informed choice about proposed medical procedures. Significant litigation ensued concerning the scope of the doctor’s duty to provide informed consent.

In 1975, the Louisiana Legislature enacted La.Rev.Stat. 40:1299.40 A and B relative to informed consent to medical treatment, and Subsection C was added the following year. La.Rev.Stat. 40:1299.40 A-C now provide:

A.(1) Notwithstanding any other law to the contrary, written consent to medical treatment means a consent in writing to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure" or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the|5patient for -whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.

(2) In addition to the information required to be disclosed in Paragraph (1) of this Subsection, where the medical treatment involves the surgical implantation of “Norplant” contraceptive devices, the explanation to the patient shall include the known and significant or other material risks, the known adverse results, and alternative methods of contraception.

B. Except as provided in Subsection A of this Section, no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such written consent.

C. Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (a) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases.

*451This court first addressed the informed consent statute in LaCaze v. Collier, 434 So.2d 1039 (La.1983). There, after several years of treatment for severe pelvic inflammatory disease, the patient accepted the doctor’s recommendation of a hysterectomy. The patient signed two consent forms. The first was essentially blank, and the second listed only the type of surgery, without listing any risks or acknowledging that disclosures had been made or questions answered.

After the surgery, a vesieo-vaginal fistula developed, requiring additional surgery. The patient sued on the basis that the doctor made insufficient disclosure of the surgical risks to obtain a valid informed consent.

This court held that the consent forms did not satisfy the statutory requirements, but concluded that the lack of informed consent did not give rise to |6any damages. This court reasoned that the patient failed to prove causation of the claimed damages because a reasonable person in the patient’s position would have consented to the surgery even if the doctor had disclosed the risk that materialized.

In Karl J. Pizzalotto, M.D., Ltd. v. Wilson, 437 So.2d 859 (La.1983), the doctor, after conservatively treating the patient’s lower abdominal pain, prescribed exploratory abdominal surgery (laparotomy) to determine the cause of the pain. The consent form signed by the patient listed “(1) Pelvic inflammatory disease, marked (2) endometrios-is” as the diagnosis and “Laparotomy-Lysis of adhesions, Fulguration of endometrioma” as the recommended procedure. Although the doctor noted “probable salpingo-oopho-rectomy” (the surgical removal of the ovary and its fallopian tube) on the admission chart, he did not inform the patient, who desired to have children, of this probability.

During surgery, the doctor removed the patient’s severely damaged reproductive organs, believing that the patient was sterile and that further pain would necessitate additional surgery.

This court, concluding that the doctor removed the patient’s reproductive organs without obtaining her implied or expressed consent to that operation, held that the doctor committed a battery and remanded the case to the court of appeal to determine the damages due for that tort.

In Hondroulis v. Schuhmacher, 553 So.2d 398 (La.1988) (on rehearing), the patient consulted the doctor about low back pain that radiated into the hip and leg. After attempting conservative treatment, the doctor recommended a myelogram and a laminectomy. The consent form signed by the patient, essentially tracking the general risks stated in the statute, listed the risks of this procedure as “anesthesia; death; brain damage; disfiguring scars; paralysis; the loss of or loss of function of body organs; and the loss or loss of function of any arm or leg.”

17After the surgery, the patient experienced incontinency, constipation and numbness in the leg. She filed suit on the basis that she would not have undergone the surgery if she had been informed of these known material risks.

This court first noted that:

Where circumstances permit, the patient should be told the nature of the pertinent ailment or condition, the general nature of the proposed treatment or procedure, the risks involved in the proposed treatment or procedure, the prospects of success, the risks of failing to undergo any treatment or procedure at all, and the risks of any alternate methods of treatment.

Id. at 411. Explaining further, this court stated:

The determination of materiality [of a risk] is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. “Some” expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging that risk exists and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient’s position *452probably would attach significance to the specific risk.

Id. at 412.

Reversing a summary judgment in favor of the doctor, this court held that the issues of whether the loss of bladder control was a material risk which was not disclosed to the patient and whether a reasonable person in the patient’s position would have refused the operation, had she been advised of the risk, were issues triable on the merits. Id. at 421-22.

Liability in the Pizzalotto case was based on commission of a “battery” because the doctor, although obtaining consent to perform a laparotomy and to unbind the adhe-sions and fulgurate the endometrioma, performed other anticipated procedures for which he did not have consent. We deem it appropriate to clarify now the use of the term “battery” in the Pizzalotto case.

While the early development of liability for failing to obtain informed | «consent was based on concepts of battery or unconsented touching, the imposition of liability in later cases has been based on breach of a duty imposed on the doctor to disclose material information in obtaining consent. Such a breach of duty by the doctor results in liability based on negligence or other fault. While perhaps the performance of a medical procedure without obtaining any kind of consent, in the absence of an emergency, technically constitutes a battery,5 liability issues involving inadequate consent are more appropriately analyzed under negligence or other fault concepts. See W. Page Keeton et al, Prosser and Keeton on the Law of Torts 190 (5th ed. 1984) (“Beginning around 1960, however, it began to be recognized that the matter was really one of the standard of professional conduct, and so negligence has now generally displaced battery as the basis for liability”); 1 Fowler V. Harper et al., The Law of Torts § 3.10 & nn. 36-38 (3d ed. 1997) (“The problem of informed consent is essentially one of professional responsibility, not intentional wrongdoing, and can be handled more coherently within the framework of negligence law than as an aspect of battery.”); 4 Stuart M. Speiser et al., The American Law of Torts § 15.71 n. 21 (noting that “more and more courts have turned to the theory of negligence — professional malpractice — as the basis for suits predicated on lack of informed consent”); David W. Robertson et al, Cases and Materials on Torts 608 n. 1 (1989) (“modern courts analyze the adequacy of consent as a question of negligence, not battery”); 3 David W. Louisell & Harold Williams, Medical Malpractice § 22.03[2] (1997); Frank L. Maraist & Thomas C. Galli-gan, Jr., Louisiana Tort Law § 2-9(a) (1996) (“most modern authorities nowjgtreat lack of informed consent as a negligence, i.e., malpractice matter”); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960); Woolley v. Henderson, 418 A.2d 1123 (Me.1980).

The Louisiana Legislature has also specified the theory of recovery in lack of informed consent claims as properly based on traditional fault theories, apparently to bring such claims under the Medical Malpractice Act. By La. Acts 1990, No. 1093, the Legislature amended La.Rev.Stat. 40:1299.40 to add Subsection E, which establishes the Louisiana Medical Disclosure Panel to determine the risks and hazards related to medical care and surgical procedures that must be disclosed to the patient. Pertinent to the present discussion, Subsection 1299.40 E(2)(a) provides:

In a suit against a physician or other health care provider involving a health care liability or medical malpractice claim which is based on the failure of the physician or other health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or other health care provider, the *453 only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent, (emphasis added).

We therefore reject battery-based liability in lack of informed consent cases (which include no-consent cases) in favor of liability based on breach of the doctor’s duty to provide the patient with material information concerning the medical procedure.

Lack of Informed Consent in the Present Case

In support of his contention that Dr. Dowling is hable for damages based on lack of informed consent, plaintiff testified he repeatedly informed Dr. Dowling prior to his cardiac incisional hernia repair that he wanted the doctor to use mesh to close the wound, believing that three of his four prior inguinal hernia repairs hadjipfailed because mesh was not used. According to plaintiff, Dr. Dowling promised he would use mesh in the operation and noted the use of mesh on the consent form, and Dr. Dowling never told plaintiff of any risks involved in using mesh or that a decision whether to use mesh would be reserved until during surgery. Had Dr. Dowl-ing told him the decision whether to use mesh would only be made during surgery, plaintiff asserted he would have sought another doctor. This testimony was corroborated by plaintiff’s wife.

Dr. Dowling testified that he discussed the use of mesh with plaintiff and that its use was an option during surgery. The doctor stated he never committed to the use of mesh or promised it would be used, and if plaintiff had insisted on such a promise, he would have told plaintiff to find another surgeon.6 He believed plaintiff understood that mesh was an option and that Dr. Dowling would make the decision whether to use mesh according to the conditions found during the surgery. Dr. Dowling insisted that he included similar language in every consent form for hernia repairs, meaning that he was authorized to use mesh if he determined during the surgery that its use was required.

Plaintiffs wife testified that she asked Dr. Dowling immediately after the operation if he had used mesh, and he told her he had not “because I don’t like it.” This testimony was corroborated by her daughter. Plaintiff testified that when he asked Dr. Dowling about the decision not to use mesh, Dr. Dowling stated he had sutured the hernia repair in such a way that the sutures would not fail.

Dr. Dowling denied that he said he had used any special sutures or that he | nsaid the sutures would not fad. He also denied telling plaintiffs wife that he did not like to use mesh.

The jury apparently accepted plaintiffs testimony, corroborated by that of his wife and daughter, that the doctor agreed to plaintiffs steadfast demand for the use of mesh and simply disregarded that agreement during the surgery. The plain language of the written consent form clearly supports the jury’s determination. The term “incisional hernia repair” was sufficient to authorize that surgical repair using normal procedures within the surgeon’s judgment; there was no necessity to use the words “with mesh” except to confirm the patient’s request.

An appellate court, in reviewing a jury’s determination that a doctor failed to obtain the patient’s informed consent, should focus on the duty of the doctor to provide material information to the patient under the circumstances of the particular case. Here, the patient, regardless of the validity of his conviction, believed that previous hernia repairs had failed because of the non-use of mesh and conditioned his consent to the surgery upon the use of mesh. Under the evidence viewed in the light most favorable to the party who prevailed before the trier-of-*454fact, the doctor understood and agreed to the condition, indicating that agreement in plain language on the written form.

Under these circumstances, it was incumbent upon the doctor to explain to the patient the advantages and disadvantages in the use of mesh, the attendant risks, and the necessity of reserving the decision on the use of mesh to the surgeon during the course of the operation. The doctor, under the record-supported decision of the jury, failed to discharge that duty in this case. Accordingly, the doctor failed to obtain adequate informed consent to the surgery that he anticipated and performed, and deprived the patient of the opportunity to decide, with appropriate material information, whether he wanted to have the hernia repair only with mesh and fey I i2reject a medical procedure that he did not want. Because of the breach of duty, the doctor is liable for the damages caused by that breach of duty.

Causation of Damages

The plaintiff in a lack of informed consent case must prove not only that the physician failed to disclose all material information, but also that there was a causal relationship between the doctor’s failure and the damages claimed by the patient. LaCaze, 484 So.2d at 1048. Otherwise, the doctor’s conduct, however wrongful, is legally inconsequential. Id.

There are two aspects to the proof of causation in a lack of informed consent case. First, the plaintiff must prove, as in any other tort action, that the defendant’s breach of duty was a cause-in-faet of the claimed damages or, viewed conversely, that the defendant’s proper performance of his or her duty would have prevented the damages. Second, the plaintiff must further prove that a reasonable patient in the plaintiffs position would not have consented to the treatment or procedure, had the material information and risks been disclosed. LaCaze, 434 So.2d at 1048; Hondroulis, 553 So.2d at 412; Canterbury v. Spence, 464 F.2d 772, 790 (D.C.Cir.1972). Causation is established only if adequate disclosure reasonably would be expected to have caused a reasonable person to decline treatment because of the disclosure of the risk or danger that resulted in the injury. Canterbury, 464 F.2d at 791. Although the patient has the absolute right, for whatever reason, to prevent unauthorized intrusions and treatments, he or she can only recover damages for those intrusions in which consent would have been reasonably withheld if the patient had been adequately informed. LaCaze, 434 So.2d at 1049.

As to the principal claim for damages in the present case (the subsequent massive herniation in 1988), we need not discuss whether a reasonable person inj^plaintiffs position would have consented to the cardiac incisional hernia repair if the person had been informed that mesh might not be indicated or used. Based on the complete record, plaintiff has failéd to satisfy the threshold element of causation-in-fact. There is no medical evidence from which a rational juror could conclude that Dr. Dowling’s failure to use mesh in the cardiac incisional hernia repair caused the plaintiffs subsequent massive herniation.

Dr. Foti, the expert called by plaintiff, testified that Dr. Dowling’s failure to use mesh in the cardiac incisional hernia repair had nothing to do with plaintiffs subsequent medical conditions. Dr. Foti stated that the hernia he repaired was a very large and complex defect which extended into the area of the cardiac incisional hernia, but that the two areas could not be distinguished from each other. From an etiological standpoint, however, he believed that the major hernia he repaired stemmed from a separation of the abdominal wall,after the unrelated gallbladder surgery.7 Dr. Foti further testified that he believed there was nothing Dr. Dowl-*455ing failed to do which caused the herniation for which he operated on the plaintiff.

Inasmuch as plaintiff failed to prove that the use of mesh in the cardiac incisional hernia repair would have prevented any of his subsequent problems, we conclude that Dr. Dowling’s failure to use mesh in accordance with plaintiff’s |i4request was not a cause-in-fact of the subsequent massive herniation suffered by plaintiff.

Nevertheless, the doctor’s breach of duty cannot fairly be said to have resulted in no injury whatsoever. Although we do not base the doctor’s liability on a theory of battery, the damages sustained by plaintiff in this case appear to be the type of damages contemplated by the majority of this court in remanding the Pizzalotto case to the court of appeal to fix damages based on a battery.8 While we have herein rejected battery as the basis for analyzing liability in lack of informed consent cases, some of the damages generally awarded in battery cases are applicable in our discussion of damages in this case.

This case is different from the usual lack of informed consent eases' where the doctor failed to inform the patient of a material risk and the risk materialized to cause physical damages. Here, the doctor’s failure to inform the patient adequately did not cause the patient to undergo a risk that materialized and caused physical damages.9 Rather, the doctor’s breach of duty caused plaintiff to undergo a medical procedure to which the patient expressly objected and for which the doctor failed to provide adequate information in response to the patient’s request, thereby causing damages to plaintiffs dignity, privacy and emotional well-being. The doctor, rather than explaining the advantages and disadvantages of the patient’s express request, patronized his patient and mentally reserved the right to decide to disregard the patient’s expressed wishes. Even the dissenting judge in the court of appeal noted that plaintiff is entitled to an award of damages for being deprived the opportunity of self-determination in regard to subjecting himself to an unwanted | ^procedure.

The difficult question is the type of damages to be awarded. While plaintiff failed to prove physical damages or pecuniary loss, he is still entitled to an award of general compensatory damages caused by the doctor’s breach of duty. In this type of case, damages for deprivation of self-determination, insult to personal integrity, invasion of privacy, anxiety, worry and mental distress are actual and compensatory. See 2 Dan B. Dobbs, Law of Remedies, §§ 7.1-7.3 (1993) (discussing damages for “dignitary torts”10 where the law seeks to protect the plaintiffs intangible interest in personal integrity and privacy, as well as mental tranquility). See also Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955); (two plaintiffs- awarded $250 each, in addition to property damage awards, where defendants were absolutely liable for use of explosives in seismological exploration); Ard v. Samedan Oil Corp., 483 So.2d 925 (La.1986) (two plaintiffs awarded $10,000 and $7,500 respectively, plus property damage award, for trespass by seismology team who trampled fences on plaintiffs’ cattle lands); Guy v. ABC Ins. Co., 629 So.2d 1350 (La.App. 4th Cir.1993) (three plaintiffs awarded $3,500, $3,500 and $5,000 respectively where police conducted warrantless search of home but caused no property damage); Karl J. Pizzalotto, M.D., Ltd. v. Wilson, 444 So.2d 143 (La.App. 1st Cir.1983) (on remand) (damages based on battery theory of lack of consent). This is not a case of mental distress caused by harm to plaintiffs property, for which an award of damages has caused much debate. Rather, the injury was to plaintiff’s personal *456dignity and right of privacy, an injury for which an award of damages generally is considered appropriate. The primary concern in this injury to the personality is vindication of Invaluable, although intangible, right, the mere invasion of which constitutes harm for which damages are recoverable. Dobbs, supra, at § 7.1(1).

On remand in Pizzalotto, the court of appeal awarded $10,000 based on the patient’s “shock” at learning that she had undergone a procedure she had not expected, as well as the added pain and recovery time she experienced due to the more extensive operation that she underwent. Pizzalotto, 444 So.2d at 144. In this case, plaintiff experienced similar shock and mental distress when he learned that his express desire for a repair with mesh had been disregarded. Unlike the' plaintiff in Pizzalotto, however, plaintiff in this case did not undergo a more extensive procedure than the one he expected. Accordingly, we fix his compensatory damages at $5,000, proportionate to the damages awarded in Pizzalotto on remand.

In summary, we reduce the jury’s total award of damages, which included the damages attributable to the massive herniation that was not proved to have been caused by the doctor’s failure to provide material information and to obtain adequate informed consent, from $300,000 to $5,000. We also reverse the unsupported jury finding that plaintiff was ten percent at fault.

Medical Malpractice

The claims in this case throughout have been separated into lack of informed consent and medical malpractice claims.11 The jury found the doctor liable on both claims. The court of appeal, basing liability on lack of informed consent, pretermitted discussion of liability for separate medical malpractice in failing to |i7meet the appropriate standard of care during the performance of the surgery. Because the record clearly does not support the jury’s finding of any medical malpractice separate from the breach of duty to obtain informed consent, we will treat the issue briefly rather than remanding to the court of appeal.

To prove medical malpractice, a plaintiff must prove the prevailing standard of care, the health care provider’s violation of that standard of care, and the causal connection between the health care provider’s alleged negligence and the plaintiffs claimed injuries. Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94); 643 So.2d 1228; La.Rev.Stat. 9:2794. The standard of care is generally that degree of knowledge or skill possessed or the degree of care ordinarily exercised by doctors licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar' circumstances. La.Rev.Stat. 9:2794 A(1).

The medical evidence on this issue was entirely in Dr. Dowling’s favor. Dr. Foti repeatedly testified that Dr. Dowling did not violate any standard of care in any of his treatment. Moreover, as noted above, Dr. Foti could not say that Dr. Dowling’s repair of the cardiac incisional hernia failed or that any deficiency in the repair caused the abdominal hernia which Dr. Foti later repaired and for which plaintiff sought damages. From an etiological standpoint, Dr. Foti believed the massive abdominal hernia started from the separation of the abdominal wall after the gallbladder surgery. Dr. Foti further opined that there was no negligence in the manner in which Dr. Dowling performed the gallbladder operations and that no action or inaction by Dr. Dowling in either procedure caused the herniation for which he operated on the plaintiff.

The jury’s determination of liability based on medical malpractice must be set aside.

11 sDecree

For the foregoing reasons, the judgment of the lower courts is amended to reduce the amount of damages to $5,000.

Johnson, J., not on panel. Rule IV, Part 2, § 3.