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XII.A. Special Relationships
  • 1 Broadbent v. Broadbent--"The Elimination of Parental Immunity Case"

    Should children be allowed to sue if their parents’ failure to supervise them led to harm?

    1
    184 Ariz. 74 (1995)
    2
    907 P.2d 43
    3
    Christopher BROADBENT, a minor, by his Conservator, Phillip E. BROADBENT, Plaintiff-Appellant,
    v.
    Laura J. BROADBENT, Defendant-Appellee, NORTHBROOK INDEMNITY COMPANY, Real Party in Interest-Appellee.
    4
    No. CV-93-0378-PR.
    5

    Supreme Court of Arizona, En Banc.

    6
    November 14, 1995.
    7

    Kern and Wooley by Robert L. Greer, Mesa, for Plaintiff-Appellant Christopher Broadbent, a minor, by his Conservator, Phillip E. Broadbent.

    8

    Ridenour, Swenson, Cleere & Evans, P.C. by James W. Evans, Phoenix, for Defendant-Appellee Laura J. Broadbent.

    9

    Ulrich, Kessler & Anger, P.C. by Paul G. Ulrich, Donn G. Kessler, Phoenix, Musick, Peeler & Garrett by Wayne B. Littlefield, Lynn A. O'Leary, Los Angeles, CA, for Real Party in Interest Northbrook Indemnity Company.

    10

    OPINION

    11

    CORCORAN, Justice.

    12

    We must determine whether the doctrine of parental immunity bars Christopher Broadbent's action against his mother for negligence. We also discuss the viability of the line of Arizona cases creating and refining the parental immunity doctrine. We have jurisdiction pursuant to article 6, § 5(3) of the Arizona Constitution, and rule 23, Arizona Rules of Civil Appellate Procedure.

    13

    FACTS AND PROCEDURAL HISTORY

    14

    I. Facts

    15

    Christopher and his mother, Laura J. Broadbent, went swimming at the family residence on April 13, 1984, their first day of 75*75 swimming that year. Christopher was wearing "floaties," which are inflatable rings worn on the arms to assist a child in staying afloat. Laura understood that a child could still drown while wearing floaties and should be supervised. At the time of the accident, Christopher was two-and-a-half years old and did not know how to swim.

    16

    Laura and Christopher were by the side of the pool when the telephone rang. Laura left Christopher alone by the pool to answer the phone. Laura saw Christopher remove his floaties before she answered the phone. Laura talked on the phone 5 to 10 minutes and could not see Christopher from where she was talking. She also did not have on her contact lenses. Laura said that if she stretched the phone cord and her body, she could see the pool area, but when she did this, she could not see Christopher. She dropped the phone, ran toward the pool, and found Christopher floating in the deep end of the pool.

    17

    Laura administered cardio-pulmonary resuscitation and telephoned for the paramedics. Neither Laura nor the paramedics were able to revive Christopher. The paramedics took Christopher to the hospital where he was finally revived. As a result of this near drowning, Christopher suffered severe brain damage because of lack of oxygen. He has lost his motor skills and has no voluntary movement.

    18

    II. Procedural History

    19

    The coverage issue between State Farm Fire & Casualty Co. and the Broadbents was resolved by stipulation and order in the court of appeals. Broadbent v. Broadbent, 178 Ariz. 53, 54, 870 P.2d 1149, 1150 (App. 1993). Therefore, that action is not reflected in the caption of this opinion or in the text.

    20

    A complaint was filed on behalf of Christopher, as plaintiff, against his mother, alleging that she was negligent and caused his injuries. This action was brought to involve the Broadbents' umbrella insurance carrier in the issue of coverage. In her answer, Laura admitted that she was negligent in her supervision of Christopher, and she moved for summary judgment, arguing that the doctrine of parental immunity applied. All parties to both the declaratory judgment action and the negligence action filed a stipulation to consolidate the cases, and the trial court ordered the consolidation. The trial court granted Laura's motion for summary judgment and ruled that the parental immunity doctrine applied to the facts of this case.

    21

    Phillip Broadbent, as Conservator for Christopher, appealed to the court of appeals. The parties stipulated that: (1) the real party in interest was Northbrook Indemnity Company, who provided personal umbrella liability insurance coverage for Laura Broadbent on the date of the accident; (2) Laura may be entitled to indemnity from Northbrook if Laura is liable for the injuries to Christopher; (3) Laura did not want to defend the action but agreed that Northbrook should be permitted to defend; and (4) the only issue in the case was whether the doctrine of parental immunity applied. The court of appeals ordered that Northbrook be permitted to appear and defend the case.

    22

    The court of appeals affirmed the trial court, finding that under the parental immunity doctrine the mother was not liable for her child's injuries. Broadbent, 178 Ariz. at 58, 870 P.2d at 1154. The court of appeals held that this case was most closely analogous to Sandoval v. Sandoval, 128 Ariz. 11, 623 P.2d 800 (1981), which involved negligent supervision of a child by a parent, and rejected the argument that the mother's duty to the child arose out of a duty to the world at large to protect all children from the pool. Broadbent, 178 Ariz. at 56-57, 870 P.2d at 1152-53. The court of appeals also rejected Christopher's arguments that (1) the injuries were caused by an instrumentality under the control of the mother, and therefore the doctrine of parental immunity did not apply; and (2) Arizona should further limit application of parental immunity in accord with Wisconsin cases from which Arizona's standard was originally derived. Broadbent, 178 Ariz. at 57-58, 870 P.2d at 1153-54.

    23

    Judge Kleinschmidt dissented and agreed with Christopher's argument that the mother owed a duty to the world to supervise the swimming pool, and therefore the doctrine of parental immunity did not apply. Broadbent, 76*76 178 Ariz. at 59, 870 P.2d at 1155 (Kleinschmidt, J., dissenting) (finding this case more closely analogous to Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970), and Schleier v. Alter, 159 Ariz. 397, 767 P.2d 1187 (App. 1989)).

    24

    The court of appeals noted that it based its decision on an application of the current status of the parental immunity doctrine in Arizona and that any departure or modification of the established case law was "for the supreme court to determine" and not the court of appeals. Broadbent, 178 Ariz. at 58, 870 P.2d at 1154. We agree and do so in this opinion today.

    25

    DISCUSSION

    26

    I. History and Purpose of the Parental Immunity Doctrine

    27

    A. The Origins of Parental Immunity

    28

    We begin by stating a few basic facts about the treatment of children under the law and family immunities. Under common law, a child has traditionally been considered a separate legal entity from his or her parent. See W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, and David G. Owen, Prosser and Keeton on the Law of Torts § 122, at 904 (5th ed. 1984) (Prosser & Keeton); Martin J. Rooney & Colleen M. Rooney, Parental Tort Immunity: Spare the Liability, Spoil the Parent, 25 New Eng.L.Rev. 1161, 1162 (1991). Children have generally been allowed to sue their parents in property and contract actions. Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193, 197 (1963); Gail D. Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 Fordham L.Rev. 489, 497 (1982) (Parent-Child Immunity). In contrast, at common law the courts merged the identity of husband and wife; therefore, spousal immunity prohibited any action by a wife against her husband because to do so would have been to sue herself. Parent-Child Immunity, at 496-97; see also Windauer v. O'Connor, 13 Ariz. App. 442, 442-45, 477 P.2d 561, 562-65 (1970) (holding that doctrine of spousal immunity did not bar action by former wife against divorced husband for personal injuries sustained when husband shot wife during marriage). The doctrine of spousal immunity has been abolished and there has not been a prohibition against siblings suing each other. See Jefferson L. Lankford & Douglas A. Blaze, Law of Negligence in Arizona § 5.3(1)(a), at 106 (1992) (noting that Arizona has joined majority of states by abolishing doctrine of interspousal immunity).

    29

    The doctrine of parental immunity is an American phenomenon unknown in the English common law. See Gibson v. Gibson, 3 Cal.3d 914, 92 Cal. Rptr. 288, 289, 479 P.2d 648, 649 (1971); Cates v. Cates, 156 Ill.2d 76, 189 Ill.Dec. 14, 20, 619 N.E.2d 715, 721 (1993); Prosser & Keeton § 122, at 904. Courts in Canada and Scotland have held that children may sue their parents in tort. See Gibson, 92 Cal. Rptr. at 289, 479 P.2d at 649; Prosser & Keeton § 122, at 904.

    30

    In early American history, children were viewed as "evil and in need of strict discipline," and the courts recognized wide parental discretion. Parent-Child Immunity, at 491-92. There was a strong presumption that parental discipline was proper. See, e.g., S.C. Code Ann. § 16-3-40 (Law.Coop. 1976) (statute originating from 1712 that provided a defense to "[k]illing by stabbing or thrusting" if done while chastising or correcting your child). Only recently has the state intervened to protect children. See, e.g., A.R.S. §§ 8-501 to -550.01 (child welfare and placement). Viewed against this backdrop, it is not surprising that no American child had sought recovery against a parent for tortious conduct until the late nineteenth century.

    31

    In Hewlett v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891),[1] the Supreme Court of Mississippi held, without citation to legal authority, that a child could not sue her parent for being falsely imprisoned in an insane asylum because of parental immunity, a doctrine which that court created from whole cloth. As its rationale, the court stated:

    32
    [S]o long as the parent is under obligation to care for, guide and control, and the child 77*77 is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.
    33

    Hewlett, 68 Miss. at 711, 9 So. at 887.

    34

    Hewlett was followed by two cases that were also decided on parental immunity grounds, and these came to be known as the "great trilogy" of cases establishing the parental immunity doctrine. In McKelvey v. McKelvey, the Tennessee Supreme Court held that a minor child could not sue her father for "cruel and inhuman treatment" allegedly inflicted by her stepmother with the consent of her father. 111 Tenn. 388, 77 S.W. 664, 664-65 (1903). McKelvey cited Hewlett as the only authority for the doctrine of parental immunity and analogized the parent-child relationship to that of the husband-wife relationship, noting that the basis for the spousal immunity was, in part, the fact that husband and wife are a legal entity. McKelvey, 77 S.W. at 664-65.

    35

    In Roller v. Roller, the Supreme Court of Washington cited Hewlett and held that a minor child could not sue her father for rape, even though he had been convicted of the criminal violation, because of the doctrine of parental immunity. Roller, 37 Wash. 242, 79 P. 788, 788-89 (1905). The Roller court argued that if the child recovered a money judgment from the parent and then died, the parent would then become heir to the property that had been taken from him. 79 P. at 789. In addition, Roller argued that "the public has an interest in the financial welfare of other minor members of the family, and it would not be the policy of the law to allow the estate, which is to be looked to for the support of all the minor children, to be appropriated by any particular one." 79 P. at 789.

    36

    This "great trilogy" was the inauspicious beginning of the doctrine of parental immunity, which was soon embraced by almost every state. Parent-Child Immunity, at 494 n. 39, 495 (noting that doctrine was adopted by all but 7 states). However, the courts soon began fashioning several exceptions to the doctrine, and in several states the doctrine has been abolished. See Gibson, 479 P.2d at 650, 653 (noting erosion of doctrine in the United States and abolishing immunity in California except for conduct not in keeping with "reasonable parent" test); Glaskox v. Glaskox, 614 So.2d 906, 909-11 (Miss. 1992) (abolishing parental immunity where minor injured as result of parents' negligence in car accident). In several situations, parental immunity does not apply: if the parent is acting outside his parental role and within the scope of his employment; if the parent acts willfully, wantonly, or recklessly; if the child is emancipated; if the child or parent dies; if a third party is liable for the tort, then the immunity of the parent does not protect that third party; and if the tortfeasor is standing in loco parentis, such as a grandparent, foster parent, or teacher, then the immunity does not apply, see Rourk v. State, 170 Ariz. 6, 10-11, 821 P.2d 273, 277-78 (App. 1991) (holding that doctrine of parental immunity did not apply to foster parents). See 4 Restatement (Second) of Torts § 895G, at 428-30 (1979) (listing longstanding exceptions to parental immunity doctrine); Prosser & Keeton § 122, at 906-07.

    37

    B. Parental Immunity in Arizona

    38

    In 1967 the doctrine of parental immunity was first recognized in Arizona in Purcell v. Frazer, 7 Ariz. App. 5, 8-9, 435 P.2d 736, 739-40 (1967). In Purcell, the Arizona Court of Appeals held that the doctrine of parental immunity prohibited children from suing their parents for injuries resulting from a car accident allegedly caused by the parents' negligence. 7 Ariz. App. at 7-9, 435 P.2d at 736-40. Purcell, however, was soon overruled in 1970 by Streenz v. Streenz, which held that an unemancipated minor could sue her parents for injuries resulting from a car accident. Streenz, 106 Ariz. 86, 88-89, 471 P.2d 282, 284-85 (1970). In Streenz, this court adopted the standard from the Wisconsin Supreme Court set forth in Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193, 198 (1963). 78*78 Streenz, 106 Ariz. at 89, 471 P.2d at 285. Under the Goller standard, parental immunity is abrogated except:

    39
    (1) where the alleged negligent act involves an exercise of parental authority over the child; and
    40
    (2) where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.
    41

    Streenz, 106 Ariz. at 89, 471 P.2d at 285, quoting Goller, 122 N.W.2d at 198. The cases following Streenz show the difficulty in applying this ambiguous standard.

    42

    In Sandoval v. Sandoval, a child sued his parents alleging that his father had negligently left the gate open, which allowed the 4-year-old child to ride his tricycle from the front yard into the street where he was run over by a car. 128 Ariz. 11, 11, 623 P.2d 800, 800 (1981). In Sandoval, this court devised a new test for applying the standard set forth in Streenz: the parent would not be immune if the parent had a duty to the world at large. Sandoval, 128 Ariz. at 13, 623 P.2d at 802. If the parent's duty was "owed to the child alone and a part of the parental `care and control' or `other care' to be provided by the parents," then the parent was immune from liability. Sandoval, 128 Ariz. at 13-14, 623 P.2d at 802-03. The court held that "the act of leaving a gate open should not subject the plaintiff's parents to suit." Sandoval, 128 Ariz. at 14, 623 P.2d at 803. Further, the court noted that it did not limit the abrogation of the parental immunity doctrine to negligence in car accident cases and would, instead, "continue to consider, on a case by case basis, the actual cause of the injury and whether the act of the parent breached a duty owed to the world at large, as opposed to a duty owed to a child within the family sphere." Sandoval, 128 Ariz. at 14, 623 P.2d at 803. The court reasoned that when a parent was driving a car, he had a duty to the world to drive carefully, whereas the duty to close the gate was a duty owed only to the child, and that the direct cause of the child's injuries in Sandoval was the car that struck him in the street, not the gate being open. Sandoval, 128 Ariz. at 13, 623 P.2d at 802.

    43

    Applying Sandoval, the court in Schleier v. Alter held that the parents had a duty to the world at large and therefore were not immune from liability. Schleier, 159 Ariz. 397, 399-400, 767 P.2d 1187, 1189-90 (App. 1989). In that case, the family dog, which had a history of attacking children, bit the Alters' 11-month-old child. Schleier, 159 Ariz. at 398, 767 P.2d at 1188. The court of appeals characterized the duty that the parents owed as a general duty to the world to supervise their dog, which the court found to be the equivalent of a "dangerous instrumentality" to children. Schleier, 159 Ariz. at 400, 767 P.2d at 1190.

    44

    The most recent Arizona case on parental immunity found the doctrine to be applicable. In Sandbak v. Sandbak, the Sandbaks' child wandered onto the next door neighbors' property where the neighbors' pit bull terrier severely mauled her. 166 Ariz. 21, 22, 800 P.2d 8, 9 (App. 1990). The parents knew that the next door neighbors owned pit bull terriers and that their daughter had a habit of wandering onto the neighbors' property. Sandbak, 166 Ariz. at 22, 800 P.2d at 9. The court held that the child's claim of negligent supervision was barred, rejecting the child's argument that immunity only applied to parents' negligence with regard to legal obligations. Sandbak, 166 Ariz. at 23, 800 P.2d at 10. The court rejected the Wisconsin Supreme Court's limiting interpretation of the Goller test in Thoreson v. Milwaukee & Suburban Transport Co., 56 Wis.2d 231, 201 N.W.2d 745, 753 (1972), which held that acts involving an "exercise of discretion with `respect to the provision of food, clothing, housing, medical and dental services, and other care'" meant that parents were allowed "discretion in performing their legal duties." (Emphasis added.) In Thoreson, the Wisconsin court concluded that the parent was not immune from liability for negligently supervising her child who wandered out of the house and into the street where he was injured. 201 N.W.2d at 747, 753.

    45

    Further, in Sandbak, the Arizona Court of Appeals rejected the argument that allowing the child to trespass on the neighbors' property 79*79 was a violation of the parents' duty to the world at large, finding that violation of that duty, if it even existed, was not the proximate cause of the injury. Sandbak, 166 Ariz. at 23, 800 P.2d at 10.

    46
    C. Analysis of the Policy Reasons Advanced in Support of Parental Immunity
    47

    Courts and commentators have postulated many policy reasons for the parental immunity doctrine. The primary justifications for this immunity are:

    48
    (1) Suing one's parents would disturb domestic tranquility;
    49
    (2) Suing one's parents would create a danger of fraud and collusion;
    50
    (3) Awarding damages to the child would deplete family resources;
    51
    (4) Awarding damages to the child could benefit the parent if the child predeceases the parent and the parent inherits the child's damages; and
    52
    (5) Suing one's parents would interfere with parental care, discipline, and control.
    53

    Streenz, 106 Ariz. at 87 n. 1, 471 P.2d at 283 n. 1; see also Gibson, 479 P.2d at 651; Cates, 619 N.E.2d at 720; Prosser & Keeton § 122, at 905. We believe that all of these justifications provide weak support for the parental immunity doctrine.

    54

    The injury to the child, more than the lawsuit, disrupts the family tranquility. In fact, if the child is not compensated for the tortious injury, then peace in the family is even less likely. In the seminal Arizona case on parental immunity, the court recognized that family tranquility would not be disturbed if the parents had liability insurance. Purcell, 7 Ariz. App. at 8, 435 P.2d at 739.

    55

    This fear of upsetting the family tranquility also seems unrealistic when we consider how such a lawsuit is initiated. The parent most often makes the decision to sue himself, and the parent is in effect prepared to say that he was negligent. See Comment, The "Reasonable Parent" Standard: An Alternative to Parent-Child Tort Immunity, 47 U.Colo.L.Rev. 795, 798-99 (1976).

    56

    The danger of fraud and collusion is present in all lawsuits. We should not deny recovery to an entire class of litigants because some litigants might try to deceive the judicial system. The system can ferret out fraudulent and collusive behavior in suits brought by children against their parents just as the system detects such behavior in other contexts.

    57

    We note, too, that both of these arguments — disturbing domestic tranquility and danger of fraud and collusion — were also justifications for spousal immunity, which has been abrogated in Arizona. These same concerns could justify an immunity from suits brought by one sibling against another; however, this is an immunity that the courts have not felt the need to create. Furthermore, one of the justifications for spousal immunity was that husband and wife were considered a single legal entity, yet this legal fiction was not applied to the parent-child relationship. As noted earlier, children have always been able to maintain actions against their parents in contexts other than negligence actions, such as contract actions or for willful conduct by the parent. Therefore, the reliance on spousal immunity as a justification for parental immunity is not sound. See McKelvey, 77 S.W. at 665.

    58

    A damage award for the child will not deplete, or unfairly redistribute, the family's financial resources. These cases will generally not be brought if no insurance coverage is available, and therefore the worry that the family's resources will be depleted for the benefit of one child is illusory. The opposite is true. If a child has been seriously injured and needs expensive medical care, then a successful lawsuit against the parent and subsequent recovery from the insurance company could ease the financial burden on the family. It would not be a viable rule to say that liability only exists where insurance exists, but we recognize that lawsuits generally will be brought when there is potential insurance coverage.

    59

    The possibility that the parent might inherit money recovered by the child is remote. This becomes a concern only if the parent inherits as a beneficiary under intestate succession laws. This is a concern for the probate 80*80 courts and the laws of intestate succession, not tort law. The remedy would be to prohibit inheritance by the parent — not to deny recovery to the injured child. See Parent-Child Immunity, at 497-98.

    60

    The Arizona courts have embraced the rationale that allowing a child to sue a parent would interfere with parental care, discipline, and control. See Streenz, 106 Ariz. at 89, 471 P.2d at 285. We have cited with approval the Wisconsin Supreme Court's statement that:

    61
    [a] new and heavy burden would be added to the responsibility and privilege of parenthood, if within the wide scope of daily experiences common to the upbringing of children a parent could be subjected to a suit for damages for each failure to exercise care and judgment commensurate with the risk.
    62

    Sandoval, 128 Ariz. at 13, 623 P.2d at 802, quoting Lemmen v. Servais, 39 Wis.2d 75, 158 N.W.2d 341, 344 (1968).

    63

    The justification that allowing children to sue their parents would undercut parental authority and discretion has more appeal than the other rationales. However, if a child were seriously injured as a result of the exercise of parental authority, such as by a beating, then it would constitute an injury willfully inflicted, and parents are generally not immune for willful, wanton, or malicious conduct. See Annotation, Liability of Parent or Person In Loco Parentis for Personal Tort Against Minor Child, 19 A.L.R.2d 423, 451-54 (1951). Furthermore, such a willful beating would probably constitute child abuse and could be criminally prosecuted. See A.R.S. § 8-546 (Supp. 1994).[2]

    64

    We want to protect the right of parents to raise their children by their own methods and in accordance with their own attitudes and beliefs. The New York Court of Appeals aptly stated this concern:

    65
    Considering the different economic, educational, cultural, ethnic and religious backgrounds which must prevail, there are so many combinations and permutations of parent-child relationships that may result that the search for a standard would necessarily be in vain.... For this reason parents have always had the right to determine how much independence, supervision and control a child should have, and to best judge the character and extent of development of their child.
    66

    Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 867, 324 N.E.2d 338, 346 (1974), quoting Holodook v. Spencer, 43 A.D.2d 129, 350 N.Y.S.2d 199, 204 (1973). Though we recognize the importance of allowing parental discretion, we disagree that our searching for a standard would be "in vain." Parents do not possess unfettered discretion in raising their children.

    67

    II. The Abolishment of Parental Immunity and Adoption of the "Reasonable Parent" Standard for Parent-Child Suits

    68

    Although the above concerns make it difficult to draft a proper standard for the type of action a child may maintain against a parent, we will attempt to do so. We need to "fashion an objective standard that does not result in second-guessing parents in the management of their family affairs." Parent-Child Immunity, at 490. First, we should make clear what the standard is not. We reject and hereby overrule Sandoval, which created the "duty to the world at large versus duty to the child alone" distinction. 128 Ariz. at 13-14, 623 P.2d at 802-03. This distinction is not capable of uniform application and has no connection with the rationale for parental immunity. This is especially evident when we compare the facts of Schleier and Sandbak.

    69

    In Schleier, the negligent act was failure to restrain a dog, and the court found that this was a duty to the world; therefore, parental immunity did not apply. 159 Ariz. at 400-01, 767 P.2d at 1190-91. In Sandbak, the negligent 81*81 act was failure to supervise a child who was bitten by a neighbor's dog, and the court found this was a duty to the child alone; therefore, parental immunity applied. 166 Ariz. at 23, 800 P.2d at 10. The children in Schleier and Sandbak suffered similar injuries; neither case involved parental discipline, and neither case involved the "provision of food, clothing, housing, medical and dental services, and other care," unless "other care" is broadly defined. Both cases involved the negligent supervision of children. If we were to hold that parents are immune for negligent supervision of children, then the issue of liability would revolve around whether an activity could be described as "supervision" and whether lack of supervision was the cause of the injury. This would not involve a consideration of whether the activity infringed on the parents' discretionary decisions regarding care, custody, and control. Almost everything a parent does in relation to his child involves "care, custody, and control."

    70

    We add that parents always owe a parental duty to their minor child. The issue of liability should revolve around whether the parents have breached this duty and, if so, whether the breach of duty caused the injury.

    71

    In accord with the California Supreme Court, "we reject the implication of Goller [which this court approved in Streenz] that within certain aspects of the parent-child relationship, the parent has carte blanche to act negligently toward his child.... [A]lthough a parent has the prerogative and the duty to exercise authority over his minor child, this prerogative must be exercised within reasonable limits." Gibson, 479 P.2d at 652-53. We hereby reject the Goller test as set forth in Streenz, and we approve of the "reasonable parent test," in which a parent's conduct is judged by whether that parent's conduct comported with that of a reasonable and prudent parent in a similar situation. Gibson, 479 P.2d at 653.

    72

    A parent is not immune from liability for tortious conduct directed toward his child solely by reason of that relationship. See 4 Restatement (Second) of Torts § 895G, at 426. And, a parent is not liable for an act or omission that injured his child if the parent acted as a reasonable and prudent parent in the situation would.

    73

    III. Application to the Present Case

    74

    In this case, the trier of fact may find that the mother, Laura Broadbent, did not act as a reasonable and prudent parent would have in this situation. The finder of fact must determine whether leaving a two-and-a-half year old child unattended next to a swimming pool is reasonable or prudent. We fail to see why parents should not be held liable for negligence in failing to supervise their own children near the pool, when their liability would be clear had the children not been their own. We think that in most cases, if not all, the standard of care owed to a parent's own child is the same as that owed to any other child.

    75

    The paradox of parental immunity can be seen if we assume that a neighbor child from across the street was a guest and was injured at the same time and under the same circumstances as Christopher. Should the neighbor child be permitted to sue and recover damages from Laura but Christopher be denied the same opportunity?

    76

    A parent may avoid liability because there is no negligence, but not merely because of the status as parent. Children are certainly accident prone, and oftentimes those accidents are not due to the negligence of any party. The same rules of summary judgment apply to these cases as to others, and trial courts should feel free to dismiss frivolous cases on the ground that the parent has acted as a reasonable and prudent parent in a similar situation would. See Gibson, 479 P.2d at 653.

    77

    CONCLUSION

    78

    We vacate the court of appeals' decision in this case, reverse the trial court's rulings on summary judgment, and remand to the trial court for proceedings consistent with this opinion. Laura Broadbent is not immune from liability in this case because of the doctrine of parental immunity, which we hereby abolish. We overrule Sandoval on the issue of parental immunity and no longer 82*82 follow the Goller test as adopted in Streenz. See Sandoval, 128 Ariz. at 14, 623 P.2d at 803; Streenz, 106 Ariz. at 89, 471 P.2d at 285.

    79
    MOELLER, V.C.J., and ZLAKET and MARTONE, JJ., concur. FELDMAN, Chief Justice, specially concurring.
    80

    I join in the abrogation of parental immunity and the court's adoption of the reasonable and prudent parent test but write separately to sound a note of caution. Although we abolish a rule of tort immunity, we must bear in mind that "difficult problems" remain in "determining when a physical harm should be regarded as actionable." RESTATEMENT (SECOND) OF TORTS § 895G cmt. k. If the alleged tortious conduct does not grow out of the family relationship, the question of negligence "may be determined as if the parties were not related." Id. However, there are areas of broad discretion in which only parents have authority to make decisions. In these areas, I agree with the RESTATEMENT'S view that "the standard of a reasonable prudent parent ... recognize[s] the existence of that discretion and thus ... require[s] that the [parent's] conduct be palpably unreasonable in order to impose liability." Id. If, however, the charged breach of duty falls outside the area of a parent's discretionary authority and is, instead, within the obligation of due care owed by anyone who has supervisory or other responsibility for another's safety, then the test should be much more flexible.

    81

    Thus, the parent who decides to enroll a two-year-old child in swimming lessons at a neighborhood pool operates within the realm of parent-child decision-making. Although the child might be hurt during the course of such lessons, the decision to put the child in that position is peculiarly a matter of parental authority rather than a question of supervisory care or performance. Under the proper application of the reasonable and prudent parent test, as a matter of law there should be no liability unless one could say the decision was palpably unreasonable under given circumstances.

    82

    The facts of this case illustrate the other side of the coin. The act of leaving an unsupervised two-year-old child, who was unable to swim, at the side of a swimming pool was not an exercise of parental decision-making but an inadvertent act in the performance of duties owed by a caretaker. As the RESTATEMENT indicates, the reasonable and prudent parent test extends a great deal of flexibility to the first example but much less, if any, to the second.

    84

    [1] We refer the reader to the Mississippi Reports because it contains additional facts from the circuit court and the complete (and correct) names of the parties.

    86

    [2] "Abuse" is defined in § 8-546 as

    87

    the infliction or allowing of physical injury, impairment of bodily function or disfigurement or the infliction of or allowing another person to cause serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior ... and which is caused by the acts or omissions of an individual having care, custody and control of a child.

    88

    (Emphasis added.)

  • 2 Tarasoff v. Regents of University of California--"The Psychiatrist's Failure to Warn the Murder Victim"

    Do therapists have a duty to control their patients? If so, how far does this duty extend, and how may it be discharged?

    2

    Page 14

    5
    131 Cal.Rptr. 14

    8
    17 Cal.3d 425, 551 P.2d 334, 83 A.L.R.3d 1166

    11
    Vitaly TARASOFF et al., Plaintiffs and Appellants,
    v.
    The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

    14
    S.F. 23042.

    17
    Supreme Court of California

    20
    July 1, 1976.
    22

            [17 Cal.3d 429]

    24

    Page 19

    26

            Robert E. Cartwright, San Francisco, Floyd A. Demanes, Burlingame, William H. Lally, Sacramento, Edward I. Pollock, Los Angeles, Leonard Sacks, Encino, Stephen I. Zetterberg, Claremont, Sanford M. Gage, Beverly Hills, Robert O. Angle, Santa Barbara, and Melanie Bellah, Berkeley, as amici curiae for plaintiffs and appellants.

    28

            Ericksen, Ericksen, Lynch, Young & Mackenroth,[17 Cal.3d 430] William R. Morton, Richard G. Logan, Oakland, Hanna, Brophy, MacLean, McAleer & Jensen, Hanna & Brophy, and James V. Burchell, San Francisco, for defendants and respondents.

    30

            Evelle J. Younger, Atty. Gen., James E. Sabine, Asst. Atty. Gen., John M. Morrison and Thomas K. McGuire, Deputy Attys. Gen., John H. Larson, County Counsel (Los Angeles), Daniel D. Mikesell, Jr., Deputy County Counsel, Richard J. Moore, County Counsel (Alameda), Charles L. Harrington, Deputy County Counsel, Musick, Peeler & Garrett, James E. Ludlam, Los Angeles, Severson, Werson, Berke & Melchior, Kurt W. Melchior, Nicholas S. Freud and Jan T. Chilton, San Francisco, as amici curiae for defendants and respondents.

    32

            TOBRINER, Justice.

    34

            On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. 1 Plaintiffs, Tatiana's parents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley. They allege that on Moore's request, the campus police briefly detained Poddar, but released him when he appeared

    36

    Page 20

    38

            Concluding that these facts set forth causes of action against neither therapists and policemen involved, nor against the Regents of the University of California as their employer, the superior court sustained defendants' demurrers to plaintiffs' second amended complaints without leave to amend. 2 This appeal ensued.

    40

            [17 Cal.3d 431] Plaintiffs' complaints predicate liability on two grounds: defendants' failure to warn plaintiffs of the impending danger and their failure to bring about Poddar's confinement pursuant to the Lanterman-Petris-Short Act (Welf. & Inst.Code, § 5000ff.) Defendants, in turn, assert that they owed no duty of reasonable care to Tatiana and that they are immune from suit under the California Tort Claims Act of 1963 (Gov.Code, § 810ff.).

    42

            We shall explain that defendant therapists cannot escape liability merely because Tatiana herself was not their patient. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

    44

            In the case at bar, plaintiffs admit that defendant therapists notified the police, but argue on appeal that the therapists failed to exercise reasonable care to protect Tatiana in that they did not confine Poddar and did not warn Tatiana or others likely to apprise her of the danger. Defendant therapists, however, are public employees. Consequently, to the extent that plaintiffs seek to predicate liability upon the therapists' failure to bring about Poddar's confinement, the therapists can claim immunity under Government Code section 856. No specific statutory provision, however, shields them from liability based upon failure to warn Tatiana or others likely to apprise her of the danger, and Government Code section 820.2 does not protect such failure as an exercise of discretion.

    46

            Plaintiffs therefore can amend their complaints to allege that, regardless of the therapists' unsuccessful attempt to confine Poddar, since they knew that Poddar was at large and dangerous, their failure to warn Tatiana or others likely to apprise her of the danger constituted a breach of the therapists' duty to exercise reasonable care to protect Tatiana.

    48

            Plaintiffs, however, plead no relationship between Poddar and the police defendants which would impose upon them any duty to Tatiana, and plaintiffs suggest no other basis for such a duty. Plaintiffs have, [17 Cal.3d 432] therefore, failed to show that the trial court erred in sustaining the demurrer of the police defendants without leave to amend.

    50

    1. Plaintiffs' complaints.

    52

            Plaintiffs, Tatiana's mother and father, filed separate but virtually identical second amended complaints. The issue before

    54

    Page 21

    56358

            Plaintiffs' first cause of action, entitled 'Failure to Detain a Dangerous Patient,' alleges that on August 20, 1969, Poddar was a voluntary outpatient receiving therapy at Cowell Memorial Hospital. Poddar informed Moore, his therapist, that he was going to kill an unnamed girl, readily identifiable as Tatiana, when she returned home from spending the summer in Brazil. Moore, with the concurrence of Dr. Gold, who had initially examined Poddar, and Dr. Yandell, Assistant to the director of the department of psychiatry, decided that Poddar should be committed for observation in a mental hospital. Moore orally notified Officers Atkinson and Teel of the campus police that he would request commitment. He then sent a letter to Police Chief William Beall requesting the assistance of the police department in securing Poddar's confinement.

    60

            Officers Atkinson, Brownrigg, and Halleran took Poddar into custody, but, satisfied that Poddar was rational, released him on his promise to stay away from Tatiana. Powelson, director of the department of psychiatry at Cowell Memorial Hospital, then asked the police to return Moore's letter, directed that all copies of the letter and notes that Moore had taken as therapist be destroyed, and 'ordered no action to place Prosenjit Poddar in 72-hour treatment and evaluation facility.'

    62

            [17 Cal.3d 433] Plaintiffs' second cause of action, entitled 'Failure to Warn On a Dangerous Patient,' incorporates the allegations of the first cause of action, but adds the assertion that defendants negligently permitted Poddar to be released from police custody without 'notifying the parents of Tatiana Tarasoff that their daughter was in grave danger from Posenjit Poddar.' Roddar persuaded Tatiana's brother to share an apartment with him near Tatiana's residence; shortly after her return from Brazil, Poddar went to her residence and killed her.

    64

            Plaintiffs' third cause of action, entitled 'Abandonment of a Dangerous Patient,' seeks $10,000 punitive damages against defendant Powelson. Incorporating the crucial allegations of the first cause of action, plaintiffs charge that Powelson 'did the things herein alleged with intent to abandon a dangerous patient, and said acts were done maliciously and oppressively.'

    66

            Plaintiffs' fourth cause of action, for 'Breach of Primary Duty to Patient and the Public,' states essentially the same allegations as the first cause of action, but seeks to characterize defendants' conduct as a breach of duty to safeguard their patient and the public. Since such conclusory labels add nothing to the factual allegations of the complaint, the first and fourth causes of action are legally indistinguishable.

    68

            As we explain in part 4 of this opinion, plaintiffs' first and fourth causes of action, which seek to predicate liability upon the defendants' failure to bring about Poddar's confinement, are barred by governmental immunity. Plaintiffs' third cause of action succumbs to the decisions precluding exemplary damages in a wrongful death action.

    70

    Page 22

    72

    2. Plaintiffs can state a cause of action against defendant therapists for negligent failure to protect Tatiana.

    74

            The second cause of action can be amended to allege that Tatiana's death proximately resulted from defendants' negligent failure to warn Tatiana or others likely to apprise her of her danger. Plaintiffs contend that as amended, such allegations of negligence and proximate causation, with resulting damages, establish a cause of action. Defendants, however, contend that in the circumstances of the present case they owed no duty of care to Tatiana or her parents and that, in the absence of such [17 Cal.3d 434] duty, they were free to act in careless disregard of Tatiana's life and safety.

    76

            In analyzing this issue, we bear in mind that legal duties are not discoverable facts of nature, but merely conclusory expressions that , in cases of a particular type, liability should be imposed for damage done. As stated in Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 76, 441 P.2d 912, 916: 'The assertion that liability must . . . be denied because defendant bears no 'duty' to plaintiff 'begs the essential question--whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. . . (Duty) is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' (Prosser, Law of Torts (3d ed. 1964) at pp. 332--333.)'

    78

            In the landmark case of Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, Justice Peters recognized that liability should be imposed 'for an injury occasioned to another by his want of ordinary care or skill' as expressed in section 1714 of the Civil Code. Thus, Justice Peters, quoting from Heaven v. Pender (1883) 11 Q.B.D. 503, 509 stated: "whenever one person is by circumstances placed in such a position with regard to another . . . that if he did not use ordinary care and skill in his own conduct . . . he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger."

    80

            We depart from 'this fundamental principle' only upon the 'balancing of a number of considerations'; major ones 'are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.' 4

    82

            The most important of these considerations in establishing duty is foreseeability. As a general principle, a 'defendant owes a duty of [17 Cal.3d 435] care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.' (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399, 115 Cal.Rptr. 765, 776, 525 P.2d 669, 680; Dillon v. Legg, Supra, 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 441 P.2d 912; Weirum v. R.K.O. General, Inc. (1975) 15 Cal.3d 40, 123 Cal.Rptr. 468, 539 P.2d 36; see Civ.Code, § 1714.) As we shall explain, however, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn

    84

    Page 23

    86

            Although, as we have stated above, under the common law, as a general rule, one person owed no duty to control the conduct of another 5 (Richards v. Stanley (1954) 43 Cal.2d 60, 65, 271 P.2d 23; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. 812; Rest.2d Torts (1965) § 315), nor to warn those endangered by such conduct (Rest.2d Torts, Supra, § 314, com. c.; Prosser, Law of Torts (4th ed. 1971) § 56, p. 341), the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct (see Rest.2d Torts, Supra, §§ 315--320). Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either '(a) a special relation . . . between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation . . . between the actor and the other which gives to the other a right of protection.'

    88

            [17 Cal.3d 436] Although plaintiffs' pleadings assert no special relation between Tatiana and defendant therapists, they establish as between Poddar and defendant therapists the special relation that arises between a patient and his doctor or psychotherapist. 6 Such a relationship may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons. 7 A doctor must also warn a patient[551 P.2d 344]

    90

    Page 24

    92894

            Although the California decisions that recognize this duty have involvd cases in which the defendant stood in a special relationship Both to the victim and to the person whose conduct created the danger, 9 we do not think that the duty should logically be constricted to such situations. Decisions of other jurisdictions hold that the single relationship of a doctor to his patient is sufficient to support the duty to exercise reasonable care to rotect others against dangers emanating from the patient's illness. The courts hold that a doctor is liable to persons [17 Cal.3d 437] infected by his patient if he negligently fails to diagnose a contagious disease (Hofmann v. Blackmon (Fla.App.1970) 241 So.2d 752), or, having diagnosed the illness, fails to warn members of the patient's family (Wojcik v. Aluminum Co. of America (1959) 18 Misc.2d 740, 183 N.Y.S2d 351, 357--358; Davis v. Rodman (1921) 147 Ark. 385, 227 S.W. 612; Skillings v. Allen (1919) 143 Minn. 323, 173 N.W. 663; see also Jones v. Stanko (1928) 118 Ohio St. 147, 160 N.E. 456).

    96

            Since it involved a dangerous mental patient, the decision in Merchants Nat. Bank & Trust Co. of Fargo v. United States (D.N.D.1967) 272 F.Supp. 409 comes closer to the issue. The Veterans Administration arranged for the patient to work on a local farm, but did not inform the farmer of the man's background. The farmer consequently permitted the patient to come and go freely during nonworking hours; the patient borrowed a car, drove to his wife's residence and killed her. Notwithstanding the lack of any 'special relationship' between the Veterans Administration and the wife, the court found the Veterans Administration liable for the wrongful death of the wife.

    98

            In their summary of the relevant rulings Fleming and Maximov conclude that the 'case law should dispel any notion that to impose on the therapists a duty to take precautions for the safety of persons threatened by a patient, where due care so requires, is in any way opposed to contemporary ground rules on the duty relationship. On the contrary, there now seems to be sufficient authority to support the conclusion that by entering into a doctor-patient relationship the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the patient.' (Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1030.)

    100

            Defendants contend, however, that imposition of a duty to exercise reasonable care to protect third persons is unworkable because therapists cannot accurately predict whether or not a patient will resort to violence. In support of this argument amicus representing the American Psychiatric Association and other professional societies cites numerous articles which indicate that therapists, in the present state of the art, are unable reliably to predict violent acts; their forecasts, amicus claims, tend consistently to overpredict violence, and indeed are more often wrong [17 Cal.3d 438] than right. 10 Since

    102

    Page 25

    104

            The role of the psychiatrist, who is indeed a practitioner of medicine, and that of the psychologist who performs an allied function, are like that of the physician who must conform to the standards of the profession and who must often make diagnoses and predictions based upon such evaluations. Thus the judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted rules of responsibility.

    106

            We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Obviously we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise 'that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of (that professional specialty) under similar circumstances.' (Bardessono v. Michels (1970) 3 Cal.3d 780, 788, 91 Cal.Rptr. 760, 764, 478 P.2d 480, 484; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159--160, 41 Cal.Rptr. 577, 397 P.2d 161; see 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 514 and cases cited.) Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence.

    108

            In the instant case, however, the pleadings do not raise any question as to failure of defendant therapists to predict that Poddar presented a serious danger of violence. On the contrary, the present complaints allege that defendant therapists did in fact predict that Poddar would kill, but were negligent in failing to warn.

    110

            [17 Cal.3d 439] Amicus contends, however, that even when a therapist does in fact predict that a patient poses a serious danger of violence to others, the therapist should be absolved of any responsibility for failing to act to protect the potential victim. In our view, however, once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. While the discharge of this duty of due care will necessarily vary with the facts of each case, 11 in each instance the adequacy of the therapist's conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. (Accord Cobbs v. Grant (1972) 8 Cal.3d 229, 243, 104 Cal.Rptr. 505, 502 p.2d 1.) As explained in Fleming and Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1067: '. . . the ultimate question of resolving the tension between the conflicting interests of patient and potential victim is one of social policy, not professional expertise. . . . In sum, the therapist owes a legal

    112

    Page 26

    114

            Contrary to the assertion of amicus, this conclusion is not inconsistent with our recent decision in People v. Burnick, supra, 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352. Taking note of the uncertain character of therapeutic prediction, we held in Burnick that a person cannot be committed as a mentally disordered sex offender unless found to be such by proof beyond a reasonable doubt. (14 Cal.3d at p. 328, 121 Cal.Rptr. 488, 535 P.2d 352.) The issue in the present context, however, is not whether the patient should be incarcerated, but whether the therapist should take any steps at all to protect the threatened victim; some of the alternatives open to the therapist, such as warning the victim, will not result in the drastic consequences of depriving the patient of his liberty. Weighing the uncertain and conjectural character of the alleged damage done the patient by such a warning against the peril to the victim's life, we conclude that professional inaccuracy in predicting violence cannot negate the therapist's duty to protect the threatened victim.

    116

            [17 Cal.3d 440] The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved. We would hesitate to hold that the therapist who is aware that his patient expects to attempt to assassinate the President of the United States would not be obligated to warn the authorities because the therapist cannot predict with accuracy that his patient will commit the crime.

    118

            Defendants further argue that free and open communication is essential to psychotherapy (see In re Lifschutz (1970) 2 Cal.3d 415, 431--434, 85 Cal.Rptr. 829, 467 P.2d 557); that 'Unless a patient . . . is assured that . . . information (revealed by him) can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment . . . depends.' (Sen.Com. on Judiciary, comment on Evid.Code, § 1014.) The giving of a warning, defendants contend, constitutes a breach of trust which entails the revelation of confidential communications. 12

    120

            We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy (see In re Liftschutz, supra, 2 Cal.3d at p. 432, 85 Cal.Rptr. 829, 467 P.2d 557), and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. The Legislature has undertaken the difficult task of balancing the countervailing concerns. In evidence Code section 1014, it established a broad rule of privilege to protect confidential

    122

    Page 27

    12413126

            We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient's relationship with his therapist and with the persons threatened. To the contrary, the therapist's obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger. (See Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1065--1066.) 14

    128

            The revelation of a communication under the above circumstances is not a breach of trust or a violation of professional ethics; as stated in the Principles of Medical Ethics of the American Medical Association (1957), section 9: 'A physician may not reveal the confidence entrusted to him in the course of medical attendance . . . Unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of [17 Cal.3d 442] the individual or of the community.' 15 (Emphasis added.) We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.

    130

            Our current crowded and computerized society compels the interdependence of its members. In this risk-infested society we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal. If the exercise of reasonable care to protect the threatened victim requires the therapist to warn the endangered party or those who can reasonably be expected to notify him, we see no sufficient societal interest that would protect and justify concealment. The containment of such risks lies in the public interest

    132

    Page 28

    13416136

            Finally, we reject the contention of the dissent that the provisions of the Lanterman-Petris-Short Act which govern the release of confidential information (Welf. & Inst.Code, §§ 5328--5328.9) prevented defendant therapists from warning Tatiana. The dissent's contention rests on the assertion that Dr. Moore's letter to the campus police constituted an 'application in writing' within the meaning of Welfare and Institutions Code section 5150, and thus initiates proceedings under the Lanterman-Petris-Short Act. A closer look at the terms of section 5150, however, will demonstrate that it is inapplicable to the present case.

    138

            Section 5150 refers to a written application only by a professional person who is '(a) member of the attending staff . . . of an evaluation [17 Cal.3d 443] facility designated by the county,' or who is himself 'designated by the county' as one authorized to take a person into custody and place him in a facility designated by the county and approved by the State Department of Mental Hygiene. The complaint fails specifically to allege that Dr. Moore was so empowered. Dr. Moore and the Regents cannot rely upon any inference to the contrary that might be drawn from plaintiff's allegation that Dr. Moore intended to 'assign' a 'detention' on Poddar; both Dr. Moore and the Regents have expressly conceded that neither Cowell Memorial Hospital nor any member of its staff has ever been designated by the County of Alameda to institute involuntary commitment proceedings pursuant to section 5150.

    140

            Furthermore, the provisions of the Lanterman-Petris-Short Act defining a therapist's duty to withhold confidential information are expressly limited to 'information and records Obtained in the course of providing services under Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7000)' of the Welfare and Institutions Code (Welf. & Inst. Code, § 5328). (Emphasis added.) Divisions 5, 6 and 7 describe a variety of programs for treatment of the mentally ill or retarded. 17 The pleadings at issue on this appeal, however, state no facts showing that the psychotherapy provided to Poddar by the Cowell Memorial Hospital falls under any of these programs. We therefore conclude that the Lanterman-Petris-Short Act does not govern the release of information acquired by Moore during the course of rendition of those services.

    142

            Neither can we adopt the dissent's suggestion that we import wholesale the detailed provisions of the Lanterman-Petris-Short Act regulating the disclosure of confidential information and apply them to disclosure of information Not governed by the act. Since the Legislature did not extend

    144

    Page 29

    146

            [17 Cal.3d 444] Turning now to the police defendants, we conclude that they do not have any such special relationship to either Tatiana or to Poddar sufficient to impose upon such defendants a duty to warn respecting Poddar's violent intentions. (See Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9--10, 120 Cal.Rptr. 5; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 593, 114 Cal.Rptr. 332.) Plaintiffs suggest no theory, 18 and plead no facts that give rise to any duty to warn on the part of the police defendants absent such a special relationship. They have thus failed to demonstrate that the trial court erred in denying leave to amend as to the police defendants. (See Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636, 75 Cal.Rptr. 766, 451 P.2d 406; Filice v. Boccardo (1962) 210 Cal.App.2d 843, 847, 26 Cal.Rptr. 789.)

    148

    3. Defendant therapists are not immune from liability for failure to warn.

    150

            We address the issue of whether defendant therapists are protected by governmental immunity for having failed to warn Tatiana or those who reasonably could have been expected to notify her of her peril. We postulate our analysis on section 820.2 of the Government Code. 19 That provision declares, with exceptions not applicable here, that 'a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion (was) abused.' 20

    152

            [17 Cal.3d 445] Noting that virtually every public act admits of some element of discretion, we drew the line in Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. We concluded that section 820.2 affords immunity only for 'basic policy decisions.' (Emphasis added.) (See also Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1057--1058, 84 Cal.Rptr. 27; 4 Cal.Law Revision Com.Rep. (1963) p. 810; Van Alstyne, Supplement to Cal. Government Tort Liability (Cont.Ed.Bar 1969) § 5.54, pp. 16--17; Comment, California Tort Claims Act: Discretionary Immunity (1966) 39 So.Cal.L.Rev. 470, 471; cf. James, Tort Liability of Governmental Units and Their Officers[551 P.2d 350]

    154

    Page 30

    156

            We also observed that if courts did not respect this statutory immunity, they would find themselves 'in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government.' (Johnson v. State of California, supra, 69 Cal.2d at p. 793, 73 Cal.Rptr. at p. 248, 447 P.2d at p. 360.) It therefore is necessary, we concluded, to 'isolate those areas of quasilegislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.' (Johnson v. State of California, supra, at p. 794, 73 Cal.Rptr., at p. 248, 447 P.2d, at p. 360.) After careful analysis we rejected, in Johnson, other rationales commonly advanced to support governmental immunity 21 and concluded that the immunity's scope should be no greater than is required to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions.

    158

            Relying on Johnson, we conclude that defendant therapists in the present case are not immune from liability for their failure to warn of Tatiana's peril. Johnson held that a parole officer's determination whether to warn an adult couple that their prospective foster child had a background of violence 'present(ed) no . . . reasons for immunity' (Johnson v. State of California, supra, at p. 795, 73 Cal.Rptr. 240, 447 P.2d 352), was 'at the lowest, [17 Cal.3d 446] ministerial rung of official action' (Id., at p. 796, 73 Cal.Rptr. at p. 250, 447 P.2d at p. 362), and indeed constituted 'a classic case for the imposition of tort liability.' (Id., p. 797, 73 Cal.Rptr. p. 251, 447 P.2d, p. 363; cf. Morgan v. County of Yuba, supra, 230 Cal.App.2d 938, 942--943, 41 Cal.Rptr. 508.) Although defendants in Johnson argued that the decision whether to inform the foster parents of the child's background required the exercise of considerable judgmental skills, we concluded that the state was not immune from liability for the parole officer's failure to warn because such a decision did not rise to the level of a 'basic policy decision.'

    160

            We also noted in Johnson that federal courts have consistently categorized failures to warn of latent dangers as falling outside the scope of discretionary omissions immunized by the Federal Tort Claims Act. 22 (See United Air Lines, Inc. v. Wiener (9th Cir. 1964) 335 F.2d 379, 397--398, cert. den. Sub nom. United Air Lines, Inc. v. United States, 379 U.S. 951, 85 S.Ct.

    162

    Page 31

    164

            We conclude, therefore, that the therapist defendants' failure to warn Tatiana or those who reasonably could have been expected to notify her of her peril does not fall within the absolute protection afforded by section 820.2 of the Government Code. We emphasize that our conclusion[17 Cal.3d 447] does not raise the specter of therapists employed by the government indiscriminately being held liable for damage despite their exercise of sound professional judgment. We require of publicly employed therapists only that quantum of care which the common law requires of private therapists. The imposition of liability in those rare cases in which a public employee falls short of this standard does not contravense the language or purpose of Government Code section 820.2.

    166

    4. Defendant therapists are immune from liability for failing to confine Poddar.

    168

            We sustain defendant therapists' contention that Government Code section 856 insulates them from liability under plaintiffs' first and fourth causes of action for failing to confine Poddar. Section 856 affords public entities and their employees absolute protection from liability for 'any injury resulting from determining in accordance with any applicable enactment . . . whether to confine a person for mental illness.' Since this section refers to a determination to confine 'in accordance with any applicable enactment,' plaintiffs suggest that the immunity is limited to persons designated under Welfare and Institutions Code section 5150 as authorized finally to adjudicate a patient's confinement. Defendant therapists, plaintiffs point out, are not among the persons designated under section 5150.

    170

            The language and legislative history of section 856, however, suggest a far broader immunity. In 1963, when section 856 was enacted, the Legislature had not established the statutory structure of the Lanterman-Petris-Short Act. Former Welfare and Institutions Code section 5050.3 (renumbered as Welf. & Inst. Code § 5880; repealed July 1, 1969) which resembled present section 5150, authorized emergency detention at the behest only of peace officers, health officers, county physicians, or assistant county physicians; former section 5047 (renumbered as Welf, & Inst. Code § 5551; repealed July 1, 1969), however, authorized a petition seeking commitment by any person, including the 'physician attending the patient.' The Legislature did not refer in section 856 only to those persons authorized to institute emergency proceedings under section 5050.3; it broadly extended immunity to all employees who acted in accord with 'any applicable enactment,' thus granting immunity not only to persons who are empowered to confine, but also to those authorized to request or recommend confinement.

    172

            [17 Cal.3d 448] The Lanterman-Petris-Short Act, in its extensive revision of the procedures for commitment of the mentally ill, eliminated any specific statutory reference to petitions by treating physicians, but it did not limit the authority of a therapist in government employ to request, recommend or initiate actions which may lead to commitment of his patient under the act. We believe that the language of section 856,

    174

    Page 32

    176

            Turning first to Dr. Powelson's status with respect to section 856, we observe that the actions attributed to him by plaintiffs' complaints fall squarely within the protections furnished by that provision. Plaintiffs allege Powelson ordered that no actions leading to Poddar's detention be taken. This conduct reflected Powelson's determination not to seek Poddar's confinement and thus falls within the statutory immunity.

    178

            Section 856 also insulates Dr, Moore for his conduct respecting confinement, although the analysis in his case is a bit more subtle. Clearly, moore's decision that Poddar Be confined was not a proximate cause of Tatiana's death, for indeed if Moore's efforts to bring about Poddar's confinement had been successful, Tatiana might still be alive today. Rather, any confinement claim against Moore must rest upon Moore's failure to overcome Powelson's decision and actions opposing confinement.

    180

            Such a claim, based as it necessarily would be, upon a subordinate's failure to prevail over his superior, obviously would derive from a rather onerous duty. Whether to impose such a duty we need not decide, however, since we can confine our analysis to the question whether Moore's failure to overcome Powelson's decision realistically falls within the protection afforded by section 856. Based upon the allegations before us, we conclude that Moore's conduct is protected.

    182

            Plaintiffs' complaints imply that Moore acquiesced in Powelson's countermand of Moore's confinement recommendation. Such acquiescense[17 Cal.3d 449] is functionally equivalent to determining not to seek Poddar's confinement and thus merits protection under section 856. At this stage we are unaware, of course, precisely how Moore responded to powelson's actions; he may have debated the confinement issue with Powelson, for example, or taken no initiative whatsoever, perhaps because he respected Powelson's judgment, feared for his future at the hospital, or simply recognized that the proverbial handwriting was on the wall. None of these possibilities constitutes, however, the type of careless or wrongful behavior subsequent to a decision respecting confinement which is stripped of protection by the exception in section 856. 23 Rather each is in the nature of a decision not to continue to press for Poddar's confinement. No language in plaintiffs' original or amended complaints suggests that Moore determined to fight Powelson, but failed successfully to do so, due to negligent or otherwise wrongful acts or omissions. Under the circumstances, we conclude that plaintiffs' second amended complaints allege facts which trigger immunity for Dr. Moore under section 856. 24

    184

    5. Defendant police officers are immune from liability for failing to confine Poddar in their custody.

    186

            Confronting, finally, the question whether the defendant police officers are

    188

    Page 33

    190

            Although defendant police officers technically were not 'peace officers' as contemplated by the Welfare and Institutions Code, 25 [17 Cal.3d 450] plaintiffs' assertion that the officers incurred liability by failing to continue Poddar's confinement clearly contemplates that the officers were 'responsible for the detainment of (Poddar).' We could not impose a duty upon the officers to keep Poddar confined yet deny them the protection furnished by a statute immunizing those 'responsible for . . . (confinement).' Because plaintiffs would have us treat defendant officers as persons who were capable of performing the functions of the 'peace officers' contemplated by the Welfare and Institutions Code, we must accord defendant officers the protections which that code prescribed for such 'peace officers.'

    192

    6. Plaintiffs' complaints state no cause of action for exemplary damages.

    194

            Plaintiff's third cause of action seeks punitive damages against defendant Powelson. The California statutes and decisions, however, have been interpreted to bar the recovery of punitive damages in a wrongful death action. (See Pease v. Beech Aircraft corp. (1974) 38 Cal.App.3d 450, 460--462, 113 Cal.Rptr. 416, and authorities there cited.)

    196

    7. Conclusion

    198

            For the reasons stated, we conclude that plaintiffs can amend their complaints to state a cause of action against defendant therapists by asserting that the therapists in fact determined that Poddar presented a serious danger of violence to Tatiana, or pursuant to the standards of their profession should have so determined, but nevertheless failed to exercise reasonable care to protect her from that danger. To the extent, however, that plaintiffs base their claim that defendant therapists breached that duty because they failed to procure Poddar's confinement, the therapists find immunity in Government Code section 856. Further, as to the police defendants we conclude that plaintiffs have failed to show that the trial court erred in sustaining their demurrer without leave to amend.

    200

            The judgment of the superior court in favor of defendants Atkinson, Beall, Brownrigg, Hallernan, and Teel is affirmed. The judgment of the superior court in favor of defendants Gold, Moore, Powelson, Yandell, and the Regents of the University of California is reversed, and the cause remanded for further proceedings consistent with the views expressed herein.

    202

            WRIGHT, C.J., and SULLIVAN and RICHARDSON, JJ., concur.

    204

            [17 Cal.3d 451] MOSK, Justice (concurring and dissenting).

    206

            I concur in the result in this instance only because the complaints allege that defendant therapists did in fact predict that Poddar would kill and were therefore negligent in failing to warn of that danger. Thus the issue here is very narrow: we are not concerned with whether the therapists, pursuant to the standards of their profession, 'should have' predicted potential

    208

    Page 34

    210

            Whether plaintiffs can ultimately prevail is problematical at best. As the complaints admit, the therapists Did notify the police that Poddar was planning to kill a girl identifiable as Tatiana. While I doubt that more should be required, this issue may be raised in defense and its determination is a question of fact.

    212

            I cannot concur, however, in the majority's rule that a therapist may be held liable for failing to predict his patient's tendency to violence if other practitioners, pursuant to the 'standards of the profession,' would have done so. The question is, what standards? Defendants and a responsible amicus curiae, supported by an impressive body of literature discussed at length in our recent opinion in People v. Burnick (1975) 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352, demonstrate that psychiatric predictions of violence are inherently unreliable.

    214

            In Burnick, at pages 325--326, 121 Cal.Rptr. at page 501, 535 P.2d at page 365, we observed: 'In the light of recent studies it is no longer heresy to question the reliability of psychiatric predictions. Psychiatrists themeselves would be the first to admit that however desirable an infallible crystal ball might be, it is not among the tools of their profession. It must be conceded that psychiatrists still experience considerable difficulty in confidently and accurately Diagnosing mental illness. Yet those difficulties are multiplied manyfold when psychiatrists venture from diagnosis to prognosis and undertake to predict the consequences of such illness: "A diagnosis of mental illness tells us nothing about whether the person so diagnosed is or is not dangerous. Some mental patients are dangerous, some are not. Perhaps the psychiatrist is an expert at deciding whether a person is mentally ill, but is he an expert at predicting which of the persons so diagnosed are dangerous? Sane people, too, are dangerous, and it may legitimately be inquired whether there is anything in the education, training or experience of psychiatrists which renders them particularly adept at predicting dangerous behavior. Predictions of dangerous behavior, no [17 Cal.3d 452] matter who makes them, are incredibly inaccurate, and there is a growing consensus that psychiatrists are not uniquely qualified to predict dangerous behavior and are, in fact, less accurate in their predictions than other professionals." (Murel v. Baltimore City Criminal Court (1972) . . . 407 U.S. 355, 364--365, fn. 2, 92 S.Ct. 2091, 32 L.Ed.2d 791, 796--797 (Douglas, J., dissenting from dismissal of certiorari).)' (Fns. omitted.) (See also authorities cited at p. 327 & fn. 18 of 14 Cal.3d, 121 Cal.Rptr. 488, 535 P.2d 352.)

    216

            The majority confidently claim their opinion is not offensive to Burnick, on the stated ground that Burnick involved proceedings to commit an alleged mentally disordered sex offender and this case does not. I am not so sanguine about the distinction. Obviously the two cases are not factually identical, but the similarity in issues is striking: in Burnick we were likewise called upon to appraise the ability of psychiatrists to perdict dangerousness, and while we declined to bar all such testimony (Id. at pp. 327--328, 121 Cal.Rptr. 488, 535 P.2d 352) we found it so inherently untrustworthy that we would permit confinement even in a so-called civil proceeding only upon proof beyond a reasonable doubt.

    218

            I would restructure the rule designed by the majority to eliminate all reference to conformity to standards of the profession in predicting violence. If a psychiatrist does in fact predict violence, then a duty to warn arises. The majority's expansion of that rule will take us from the world of reality into the wonderland of clairvoyance.

    220

            CLARK, Justice (dissenting).

    222

            Until today's majority opinion, both legal and medical authorities have agreed that confidentiality is essential to effectively treat the mentally ill, and that imposing a

    224

    Page 35

    226

            The issue whether effective treatment for the mentally ill should be sacrificed to a system of warnings is, in my opinion, properly one for the Legislature, and we are bound by its judgment. Moreover, even in the absence of clear legislative direction, we must reach the same conclusion because imposing the majority's new duty is certain to result in a net increase in violence.

    228

            The majority rejects the balance achieved by the Legislature's Lanterman-Petris-Short Act. (Welf. & Inst. Code, § 5000 et seq., [17 Cal.3d 453] hereafter the act.) 1 In addition, the majority fails to recognize that, even absent the act, overwhelming policy considerations mandate against sacrificing fundamental patient interests without gaining a corresponding increase in public benefit.

    231
    STATUTORY PROVISIONS
    233

            Although the parties have touched only briefly on the nondisclosure provisions of the act, amici have pointed out their importance. The instant case arising after ruling on demurrer, the parties must confront the act's provisions in the trial court. In these circumstances the parties' failure to fully meet the provisions of the act would not justify this court's refusal to discuss and apply the law.

    235

            Having a grave impact on future treatment of the mentally ill in our state, the majority opinion clearly transcends the interests of the immediate parties and must discuss all applicable law. It addicates judicial responsibility to refuse to recognize the clear legislative policy reflected in the act.

    237

            Effective 1 July 1969, the Legislature created a comprehensive statutory resolution of the rights and duties of both the mentally infirm and those charged with their care and treatment. The act's purposes include ending inappropriate commitment, providing prompt care, protecting public safety, and safeguarding personal rights. (§ 5001.) The act applies to both voluntary and involuntary commitment, and to both public and private institutions; it details legal procedure for commitment; it enumerates the legal and civil rights of persons committed; and it spells out the duties, liabilities and rights of the psychotherapist. Thus the act clearly evinces the Legislature's weighing of the countervailing concerns presently before us--when a patient has threatened a third person during psychiatric treatment.

    239

            Reflecting legislative recognition that disclosing confidences impairs effective treatment of the mentally ill, and thus is contrary to the best interests of society, the act establishes the therapist's duty to Not disclose. Section 5328 provides in part that '(a)ll information and records obtained in the course of providing services . . . to either voluntary or involuntary recipients of services Shall be confidential.' (Italics added.) Further, a patient may enjoin disclosure in violation of statute and may [17 Cal.3d 454] recover the greater of $500 or three times the amount of actual damage for unlawful disclosure. (§ 5330.)

    241

            However, recognizing that some private and public interests must override the patient's, the Legislature established several limited exceptions to confidentiality. 2 The

    243

    Page 36

    245

            As originally enacted the act contained no provision allowing the therapist to warn anyone of a patient's threat. In 1970, however, the act was amended to permit disclosure in two limited circumstances. Section 5328 was amended, in subdivision (g), to allow disclosure '(t)o governmental

    247

    Page 37

    249

            Obviously neither exception to the confidentiality requirement is applicable to the instant case.

    251

            Not only has the Legislature specifically dealt with disclosure and warning, but it also has dealt with therapist and police officer liability for acts of the patient. The Legislature has provided that the therapist and the officer shall not be liable for prematurely releasing the patient. (§§ 5151, 5154, 5173, 5278, 5305, 5306.)

    253

            [17 Cal.3d 456] Ignoring the act's detailed provisions, the majority has chosen to focus on the 'dangerous patient exception' to the psychotherapist-patient privilege in Evidence Code section 1014, 1024 as indicating that 'the Legislature has undertaken the difficult task of balancing the countervailing concerns.' (Ante, p. 440, p. 26 of 131 Cal.Rptr., p. 346 of 551 P.2d.) However, this conclusion is erroneous. The majority fails to appreciate that when disclosure is permitted in an evidentiary hearing, a fourth interest comes into play--the court's concern in judicial supervision. Because they are necessary to the administration of justice, disclosures to the courts are excepted from the nondisclosure requirement by section 5328, subdivision (f). However, this case does not involve a court disclosure. Subdivision (f) and the Evidence Code sections relied on by the majority are clearly inapposite.

    255

            The provisions of the act are applicable here. Section 5328 (see fn. 2, Supra) provides, 'All information and records obtained in the course of providing services under Division 5 . . . shall be confidential.' (Italics added.) Dr. Moore's letter describing Poddar's mental condition for purposes of obtaining 72-hour commitment was undisputedly a transmittal of information designed to invoke application of division 5. As such it constituted information obtained in providing services under division 5. This is true regardless of whether Dr. Moore has been designated a professional person by the County of Alameda. Although section 5150 provides that commitment for 72 hours' evaluation shall be based on a statement by a peace officer or person designated by the county, section 5328 prohibits disclosure of All information, not just disclosure of the committing statement or disclosure by persons designated by the county. In addition, section 5330 gives the patient a cause of action for disclosure of confidential information by 'an individual' rather than the persons enumerated in section 5150.

    257

            Moreover, it appears from the allegations of the complaint that Dr. Moore is in fact a person designated by the county under section 5150. The complaint alleges that 'On or about August 20, 1969, defendant Dr. Moore notified Officers Atkinson and Teel, he would give the campus police a letter of diagnosis on Prosenjit Poddar, so the campus police could pick up Poddar and take him to Herrick Hospital in Berkeley where Dr. Moore would assign a 72-hour Emergency Psychiatric Detention on Prosenjit Poddar.' Since there is no allegation that Dr. Moore was not authorized to sign the document, it must be concluded that under the allegations of the complaint he was authorized and thus a professional person designated by the county.

    259

            [17 Cal.3d 457] Whether we rely on the facts as stated in the complaint that Dr. Moore is a designated person under section 5150 or on the strict prohibitions of section 5328 prohibiting disclosure of 'all information,' the imposition of a duty to warn by the majority

    261

    Page 38

    263

            Under the act, there can be no liability for Poddar's premature release. It is likewise clear there exists no duty to warn. Under section 5328, the therapists were under a duty To not disclose, and no exception to that duty is applicable here. Establishing a duty to warn on the basis of general tort principles imposes a Draconian dilemma on therapists--either violate the act thereby incurring the attendant statutory penalties, or ignore the majority's duty to warn thereby incurring potential civil liability. I am unable to assent to such.

    265

            If the majority feels that it must impose such a dilemma, then it has an obligation to specifically enumerate the circumstances under which the Lanterman-Petris-Short Act applies as opposed to the circumstances when 'general tort principles' will govern. The majority's failure to perform this obligation--leaving to the therapist the subtle questions as to when each opposing rule applies--is manifestly unfair.

    267

    DUTY TO DISCLOSE IN THE ABSENCE OF CONTROLLING STATUTORY PROVISION

    269

            Even assuming the act's provisions are applicable only to conduct occurring after commitment, and not to prior conduct, the act remains applicable to the most dangerous patients--those committed. The Legislature having determined that the balance of several interests requires nondisclosure in the graver public danger commitment, it would be anomalous for this court to reweigh the interests, requiring disclosure for those less dangerous. Rather, we should follow the legislative direction by refusing to require disclosure of confidential information received by the therapist either before or in the absence of commitment. The Legislature obviously is more capable than is this court to investigate, debate and weigh potential patient harm through disclosure against the risk of public harm by nondisclosure. We should defer to its judgment.

    272
    COMMON LAW ANALYSIS
    274

            Entirely apart from the statutory provisions, the same result must be reached upon considering both general tort principles and the public [17 Cal.3d 458] policies favoring effective treatment, reduction of violence, and justified commitment.

    276

            Generally, a person owes no duty to control the conduct of another. (Richards v. Stanley (1954) 43 Cal.2d 60, 65, 271 P.2d 23; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. 812; Rest.2d Torts (1965) § 315.) Exceptions are recognized only in limited situations where (1) a special relationship exists between the defendant and injured party, or (2) a special relationship exists between defendant and the active wrongdoer, imposing a duty on defendant to control the wrongdoer's conduct. The majority does not contend the first exception is appropriate to this case.

    278

            Policy generally determines duty. (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912.) Principal policy considerations include foreseeability of harm, certainty of the plaintiff's injury, proximity of the defendant's conduct to the plaintiff's injury, moral blame attributable to defendant's conduct, prevention of future harm, burden on the defendant, and consequences to the community. (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.rptr. 97, 443 P.2d 561.)

    280

            Overwhelming policy considerations weigh against imposing a duty on psychotherapists to warn a potential victim against harm. While offering virtually no benefit to society, such a duty will frustrate psychiatric treatment, invade fundamental patient rights and increase violence.

    282

            The importance of psychiatric treatment and its need for confidentiality have been recognized by this court. (In re Lifschutz (1970) 2 Cal.3d 415, 421--422, 85 Cal.Rptr. 829, 467 P.2d 557.) 'It is clearly recognized that the very practice of psychiatry vitally depends upon the reputation in the community that the psychiatrist will not tell.' (Slovenko, Psychiatry and a Second

    284

    Page 39

    286

            Assurance of confidentiality is important for three reasons.

    289
    DETERRENCE FROM TREATMENT
    291

            First, without substantial assurance of confidentiality, those requiring treatment will be deterred from seeking assistance. (See Sen. Judiciary Com. comment accompanying § 1014 of Evid.Code; Slovenko, Supra, 6 [17 Cal.3d 459] Wayne L.Rev. 175, 187--188; Goldstein & Katz, Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute (1962) 36 Conn.Bar J. 175, 178.) It remains an unfortunate fact in our society that people seeking psychiatric guidance tend to become stigmatized. Apprehension of such stigma--apparently increased by the propensity of people considering treatment to see themselves in the worst possible light--creates a well-recognized reluctance to seek aid. (Fisher, The Psychotherapeutic Professions and the Law of Privileged Communications (1964) 10 Wayne L.Rev. 609, 617; Slovenko, Supra, 6 Wayne L.Rev. 175, 188; see also Rappeport, Psychiatrist-Patient Privilege (1963) 23 Md.L.J. 39, 46--47.) This reluctance is alleviated by the psychiatrist's assurance of confidentiality.

    294
    FULL DISCLOSURE
    296

            Second, the guarantee of confidentiality is essential in eliciting the full disclosure necessary for effective treatment. (In re Lifschutz, supra, 2 Cal.3d 415, 431, 85 Cal.Rptr. 829, 467 P.2d 557; Taylor v. United States (1955), 95 U.S.App.D.C. 373, 222 F.2d 398, 401; Goldstein & Katz, Supra, 36 Conn.Bar J. 175, 178; Heller, Some Comments to Lawyers on the Practice of Psychiatry (1957) 30 Temp.L.Q. 401; Guttmacher & Weihofen, Privileged Communications Between Psychiatrist and Patient (1952) 28 Ind.L.J. 32, 34.) 3 The psychiatric patient approaches treatment with conscious and unconscious inhibitions against revealing his innermost thoughts. 'Every person, however well-motivated, has to overcome resistances to therapeutic exploration. These resistances seek support from every possible source and the possibility of disclosure would easily be employed in the service of resistance.' (Goldstein & Katz, Supra, 36 Conn.Bar J. 175, 179; see also, 118 Am.J.Psych. 734, 735.) Until a patient can trust his psychiatrist not to violate their confidential relationship, 'the unconscious psychological control mechanism of repression will prevent the recall of past experiences.' (Butler, Psychotherapy and Griswold: Is Confidentiality a Privilege or a Right? (1971) 3 Conn.L.Rev. 599, 604.)

    299
    SUCCESSFUL TREATMENT
    301

            Third, even if the patient fully discloses his thoughts, assurance that the confidential relationship will not be breached is necessary to [17 Cal.3d 460] maintain his trust in his psychiatrist--the very means by which treatment is effected. '(T) he essence of much psychotherapy is the contribution of trust in the external world and ultimately in the self, modelled upon the trusting relationship established during therapy.' (Dawidoff, The Malpractice of Psychiatrists, 1966 Duke L.J. 696, 704.) Patients will be helped only if they can form a trusting relationship with the psychiatrist. (Id. at p. 704, fn. 34; Burham, Separation Anxiety (1965) 13 Arch.Gen. Psychiatry 346, 356; Heller, Supra, 30 Temp.L.Q. 401, 406.) All authorities appear to agree that if the trust relationship cannot be developed because of collusive communication between the psychiatrist and others, treatment will be frustrated. (See, e.g., Slovenko (1973) Psychiatry and Law, p. 61; Cross, Privileged Communications Between Participants in Group Psychotherapy (1970) Law and the Social Order, 191, 199; Hollender, The

    303

    Page 40

    305

            Given the importance of confidentiality to the practice of psychiatry, it becomes clear the duty to warn imposed by the majority will cripple the use and effectiveness of psychiatry. Many people, potentially violent--yet susceptible to treatment--will be deterred from seeking it; those seeking it will be inhibited from making revelations necessary to effective treatment; and, forcing the psychiatrist to violate the patient's trust will destory the interpersonal relationship by which treatment is effected.

    308
    VIOLENCE AND CIVIL COMMITMENT
    310

            By imposing a duty to warn, the majority contributes to the danger to society of violence by the mentally ill and greatly increases the risk of civil commitment--the total deprivation of liberty--of those who should not be confined. 4 The impairment of treatment and risk of improper commitment resulting from the new duty to warn will not be limited to a few patients but will extend to a large number of the mentally ill. [17 Cal.3d 461] Although under existing psychiatric procedures only a relatively few receiving treatment will ever present a risk of violence, the number making threats is huge, and it is the latter group--not just the former--whose treatment will be impaired and whose risk of commitment will be increased.

    312

            Both the legal and psychiatric communities recognize that the process of determining potential violence in a patient is far from exact, being fraught with complexity and uncertainty. (E.g., People v. Burnick (1975) 14 Cal.3d 306, 326, 121 Cal.Rptr. 488, 535 P.2d 352, quoting from Murel v. Baltimore City Criminal Court (1972) 407 U.S. 355, 364--365, fn. 2, 92 S.Ct. 2091, 32 L.Ed.2d 791 (Douglas, J., dissenting from dismissal of certiorari); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal.L.Rev. 693, 711--716; Rector, Who Are the Dangerous? (July 1973) Bull. of Amer.Acad. of Psych. & L. 186; Kozol, Boucher & Garofalo, The Diagnosis and Treatment of Dangerousness (1972) 18 Crime & Delinquency 371; Justice & Birkman, An Effort to Distinguish the Violent From the Nonviolent (1972) 65 So.Med.J. 703.) 5 In fact precision has not even been

    314

    Page 41

    316

            This predictive uncertainty means that the number of disclosures will necessarily be large. As noted above, psychiatric patients are encouraged to discuss all thoughts of violence, and they often express such thoughts. However, unlike this court, the psychiatrist does not enjoy the benefit of [17 Cal.3d 462] overwhelming hindsight in seeing which few, if any, of his patients will ultimately become violent. Now, confronted by the majority's new duty, the psychiatrist must instantaneously calculate potential violence from each patient on each visit. The difficulties researchers have encountered in accurately predicting violence will be heightened for the practicing psychiatrist dealing for brief periods in his office with heretofore nonviolent patients. And, given the decision not to warn or commit must always be made at the psychiatrist's civil peril, one can expect most doubts will be resolved in favor of the psychiatrist protecting himself.

    318

            Neither alternative open to the psychiatrist seeking to protect himself is in the public interest. The warning itself is an impairment of the psychiatrist's ability to treat, depriving many patients of adequate treatment. It is to be expected that after disclosing their threats, a significant number of patients, who would not become violent if treated according to existing practices, will engage in violent conduct as a result of unsuccessful treatment. In short, the majority's duty to warn will not only impair treatment of many who would never become violent but worse, will result in a net increase in violence. 6

    320

            [17 Cal.3d 463] The second alternative open to the psychiatrist is to commit his patient rather than to warn. Even in the absence of threat of civil liability, the doubts of psychiatrists

    322

    Page 42

    324

            Given the incentive to commit created by the majority's duty, this already serious situation will be worsened, contrary to Chief Justice Wright's admonition 'that liberty is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction.' (In re W. (1971) 5 Cal.3d 296, 307, 96 Cal.Rptr. 1, 9, 486 P.2d 1201, 1209.) CONCLUSION

    326

            In adopting the act, the Legislature fully recognized the concerns that must govern our decision today--adequate treatment for the mentally ill, safety of our society, and our devotion to individual liberty, making overcommitment of the mentally ill abhorrent. (§ 5001.) Again, the Legislature balanced these concerns in favor of nondisclosure (§ 5328), thereby promoting effective treatment, reducing temptation for over-commitment, and ensuring greater safety for our society. Psychiatric and legal expertise on the subject requires the same judgment.

    328

            The tragedy of Tatiana Tarasoff has led the majority to disregard the clear legislative mandate of the Lanterman-Petris-Short Act. Worse, the majority impedes medical treatment, resulting in increased violence from--and deprivation of liberty to--the mentally ill.

    330

            [17 Cal.3d 464] We should accept legislative and medical judgment, relying upon effective treatment rather than on indiscriminate warning.

    332

            The judgment should be affirmed.

    334

            McCOMB, J., concurs.

    336

    ---------------

    338 339

    1 The criminal prosecution stemming from this crime is reported in People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342.

    341

    2 The therapist defendants include Dr. Moore, the psychologist who examined Poddar and decided that Poddar should be committed; Dr. Gold and Dr. Yandell, psychiatrists at Cowell Memorial Hospital who concurred in Moore's decision; and Dr. Powelson, chief of the department of psychiatry, who countermanded Moore's decision and directed that the staff take no action to confine Poddar. The police defendants include Officers Atkinson, Brownrigg and Halleran, who detained Poddar briefly but released him; Chief Beall, who received Moore's letter recommending that Poddar be confined; and Officer Teel, who, along with Officer Atkinson, received Moore's oral communication requesting detention of Poddar.

    343

    3 Plaintiffs' complaints alleged merely that defendant therapists failed to warn plaintiffs--Tatiana's parents--of the danger to Tatiana. The complaints do not allege that defendant therapists failed to warn Tatiana herself, or failed to warn persons other than her parents who would be likely to apprise Tatiana of the danger. Such omissions can properly be cured by amendment. As we stated in Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118--119, 113 Cal.Rptr. 102, 107, 520 P.2d 726, 731: 'It is axiomatic that if there is a reasonable possibility that a defect in the complaint can be cured by amendment or that the pleading liberally construed can state a cause of action, a demurrer should not be sustained without leave to amend.' (Accord, La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 876, 97 Cal.Rptr. 849, 489 P.2d 1113; Lemoge Electric v. County of San Mateo (1956) 46 Cal.2d 659, 664, 297 P.2d 638; Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 782, 98 Cal.Rptr. 779.)

    345

    4 See Merrill v. Buck (1962) 58 Cal.2d 552, 562, 25 Cal.Rptr. 456, 375 P.2d 304; Biakanja v. Irving (1958) 49 Cal.2d 647, 650, 320 P.2d 16; Walnut Creek Aggregates Co. v. Testing Engineers Inc. (1967) 248 Cal.App.2d 690, 695, 56 Cal.Rptr. 700.

    347

    5 This rule derives from the common law's distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter. (See Harper & Kime, The Duty to Control the Conduct of Another (1934) 43 Yale L.J. 886, 887.) Morally questionable, the rule owes its survival to 'the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue . . .' (Prosser, Torts (4th ed. 1971) § 56, p. 341.) Because of these practical difficulties, the courts have increased the number of instances in which affirmative duties are imposed not by direct rejection of the common law rule, but by expanding the list of special relationships which will justify departure from that rule. (See Prosser, Supra, § 56, at pp. 348--350.)

    349

    6 The pleadings establish the requisite relationship between Poddar and both Dr. Moore, the therapist who treated Poddar, and Dr. Powelson, who supervised that treatment. Plaintiffs also allege that Dr. Gold personally examined Poddar, and that Dr. Yandell, as Powelson's assistant, approved the decision to arrange Poddar's commitment. These allegations are sufficient to raise the issue whether a doctor-patient or therapist-patient relationship, giving rise to a possible duty by the doctor or therapist to exercise reasonable care to protect a threatened person of danger arising from the patient's mental illness, existed between Gold or Yandell and Poddar. (See Harney, Medical Malpractice (1973) p. 7.)

    351

    7 When a 'hospital has notice or knowledge of facts from which it might reasonably be concluded that a patient would be likely to harm himself Or others unless preclusive measures were taken, then the hospital must use reasonable care in the circumstances to prevent such harm.' (Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 469, 62 Cal.Rptr. 577, 580, 432 P.2d 193, 196.) (Emphasis added.) A mental hospital may be liable if it negligently permits the escape or release of a dangerous patient (Semler v. Psychiatric Institute of Washington, D.C. (4th Cir. 1976) 44 U.S.L.Week 2439; Underwood v. United States (5th Cir. 1966) 356 F.2d 92; Fair v. United States (5th Cir. 1956) 234 F.2d 288). Greenberg v. Barbour (E.D.Pa. 1971) 322 F.Supp. 745, upheld a cause of action against a hospital staff doctor whose negligent failure to admit a mental patient resulted in that patient assaulting the plaintiff.

    353

    8 Kaiser v. Suburban Transp. System (1965) 65 Wash.2d 461, 398 P.2d 14; see Freese v. Lemmon (Iowa 1973) 210 N.W.2d 576 (concurring opn. of Uhlenhopp. J.).

    355

    9 Ellis v. D'Angelo (1953) 116 Cal.App.2d 310, 253 P.2d 675, upheld a cause of action against parents who failed to warn a babysitter of the violent proclivities of their child; Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, upheld a suit against the state for failure to warn foster parents of the dangerous tendencies of their ward; Morgan v. City of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508, sustained a cause of action against a sheriff who had promised to warn decedent before releasing a dangerous prisoner, but failed to do so.

    357

    10 See, e.g., People v. Burnick (1975) 14 Cal.3d 306, 325--328, 121 Cal.Rptr. 488, 535 P.2d 352; Monahan, The Prevention of Violence, in Community Mental Health in the Criminal Justice System (Monahan ed. 1975); Diamond, The Psychiatric Prediction of Dangerousness (1975) 123 U.Pa.L.Rev. 439; Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom (1974) 62 Cal.L.Rev. 693.

    359

    11 Defendant therapists and amicus also argue that warnings must be given only in those cases in which the therapist knows the identity of the victim. We recognize that in some cases it would be unreasonable to require the therapist to interrogate his patient to discover the victim's identity, or to conduct an independent investigation. But there may also be cases in which a moment's reflection will reveal the victim's identity. The matter thus is one which depends upon the circumstances of each case, and should not be governed by any hard and fast rule.

    361

    12 Counsel for defendant Regents and amicus American Psychiatric Association predict that a decision of this court holding that a therapist may bear a duty to warn a potential victim will deter violence-prone persons from seeking therapy, and hamper the treatment of other patients. This contention was examined in Fleming and Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1038--1044; they conclude that such predictions are entirely speculative. In In re Lifschutz, supra, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557, counsel for the psychiatrist argued that if the state could compel disclosure of some psychotherapeutic communications, psychotherapy could no longer be practiced successfully. (2 Cal.3d at p. 426, 85 Cal.Rptr. 829, 467 P.2d 557.) We rejected that argument, and it does not appear that our decision in fact adversely affected the practice of psychotherapy in California. Counsel's forecast of harm in the present case strikes us as equally dubious.

    363

    We note, moreover, that Evidence Code section 1024, enacted in 1965, established that psychotherapeutic communication is not privileged when disclosure is necessary to prevent threatened danger. We cannot accept without question counsels' implicit assumption that effective therapy for potentially violent patients depends upon either the patient's lack of awareness that a therapist can disclose confidential communications to avert impending danger, or upon the therapist's advance promise never to reveal nonprivileged threats of violence.

    365

    13 Fleming and Maximov note that 'While (section 1024) supports the therapist's less controversial Right to make a disclosure, it admittedly does not impose in him a Duty to do so. But the argument does not have to be pressed that far. For if it is once conceded . . . that a duty in favor of the patient's foreseeable victims would accord with general principles of tort liability, we need to longer look to the statute for a source of duty. It is sufficient if the statute can be relied upon . . . for the purposes of countering the claim that the needs of confidentiality are paramount and must therefore defeat any such hypothetical duty. In this more modest perspective, the Evidence Code's 'dangerous patient' exception may be invoked with some confidence as a clear expression of legislative policy concerning the balance between the confidentiality values of the patient and the safety values of his foreseeable victims.' (Emphasis in original.) Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1063.

    367

    14 Amicus suggests that a therapist who concludes that his patient is dangerous should not warn the potential victim, but institute proceedings for involuntary detention of the patient. The giving of a warning, however, would in many cases represent a far lesser inroad upon the patient's privacy than would involuntary commitment.

    369

    15 See also Summary Report of the Task Force on Confidentiality of the Council on Professions and Associations of the American Psychiatric Association (1975).

    371

    16 Moore argues that after Powelson countermanded the decision to seek commitment for Poddar, Moore was obliged to obey the decision of his superior and that therefore he should not be held liable for any dereliction arising from his obedience to superior orders. Plaintiffs in response contend that Moore's duty to members of the public endangered by Poddar should take precedence over his duty to obey Powelson. Since plaintiffs' complaints do not set out the date of Powelson's order, the specific terms of that order, or Powelson's authority to overrule Moore's decisions respecting patients under Moore's care, we need not adjudicate this conflict; we pass only upon the pleadings at this stage and decide if the complaints can be amended to state a cause of action.

    373

    17 Division 5 includes the Lanterman-Petris-Short Act and the Short-Doyle Act (community mental health services). Division 6 relates to programs for treatment of persons judicially committed as mentally disordered sex offenders or mentally retarded. Division 7 encompasses treatment at state and county mental hospitals, the Langley Porter Neuropsychiatric Institute and the Neuropsychiatric Institute of the U.C.L.A. Medical Center.

    375

    18 We have considered Sua sponte whether plaintiffs' complaints could be amended to assert a cause of action against the police defendants under the principles of Restatement Second of Torts (1965), section 321, which provides that 'If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.' (See Hartzler v. City of San Jose, supra, 46 Cal.App.3d 6, 10, 120 Cal.Rptr. 5.) The record, however, suggests no facts which, if inserted into the complaints, might form the foundation for such cause of action. The assertion of a cause of action against the police defendants under this theory would raise difficult problems of causation and of public policy, which should not be resolved on the basis of conjectural facts not averred in the pleadings or in any proposed amendment to those pleadings.

    377

    19 No more specific immunity provision of the Government Code appears to address the issue.

    379

    20 Section 815.2 of the Government Code declares that '(a) public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.' The section further provides, with exceptions not applicable here, that 'a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.' The Regents, therefore, are immune from liability only if all individual defendants are similarly immune.

    381

    21 We dismissed, in Johnson, the view that immunity continues to be necessary in order to insure that public employees will be sufficiently zealous in the performance of their official duties. The California Tort Claims Act of 1963 provides for indemnification of public employees against liability, absent bad faith, and also permits such employees to insist that their defenses be conducted at public expense. (See Gov.Code, §§ 825--825.6, 995--995.2.) Public employees thus no longer have a significant reason to fear liability as they go about their official tasks. We also, in Johnson, rejected the argument that a public employee's concern over the potential liability of his or her employer serves as a basis for immunity. (Johnson v. State of California, supra, at pp. 790--793, 73 Cal.Rptr. 240, 447 P.2d 352.)

    383

    22 By analogy, section 830.8 of the Government Code furnishes additional support for our conclusion that a failure to warn does not fall within the zone of immunity created by section 820.2. Section 830.8 provides: 'Neither a public entity nor a public employee is liable . . . for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device . . . was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.' The Legislature thus concluded at least in another context that the failure to warn of a latent danger is not an immunized discretionary omission. (See Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 174, 71 Cal.Rptr. 275.)

    385

    23 Section 856 includes the exception to the general rule of immunity 'for injury proximately caused by . . . negligent or wrongful acts or omission in carrying out or failing to carry out . . . a determination to confine or not to confine a person for mental illness . . ..'

    387

    24 Because Dr. Gold and Dr. Yandell were Dr. Powelson's subordinates, the analysis respecting whether they are immune for having failed to obtain Poddar's confinement is similar to the analysis applicable to Dr. Moore.

    389

    25 Welfare and Institutions Code section 5008, subdivision (i), defines 'peace officer' for purposes of the Lanterman-Petris-Short Act as a person specified in sections 830.1 and 830.2 of the Penal Code. Campus police do not fall within the coverage of section 830.1 and were not included in section 830.2 until 1971.

    391

    1 All statutory references, unless otherwise stated, are to the Welfare and Institutions Code.

    393

    2 Section 5328 provides: 'All information and records obtained in the course of providing services under Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7000), to either voluntary or involuntary recipients of services shall be confidential. Information and records may be disclosed only: ( ) (a) In communications between qualified professional persons in the provision of services or appropriate referrals, or in the course of conservatorship proceedings. The consent of the patient, or his guardian or conservator must be obtained before information or records may be disclosed by a professional person employed by a facility to a professional person not employed by the facility who does not have the medical responsibility for the patient's care. ( ) (b) When the patient, with the approval of the physician in charge of the patient, designates persons to whom information or records may be released, except that nothing in this article shall be construed to compel a physician, psychologist, social worker, nurse, attorney, or other professional person to reveal information which has been given in him in confidence by members of a patient's family; ( ) (c) To the extent necessary for a recipient to make a claim, or for a claim to be made on behalf of a recipient for aid, insurance, or medical assistance to which he may be entitled; ( ) (d) If the recipient of services is a minor, ward, or conservatee, and his parent, guardian, or conservator designates, in writing, persons to whom records or information may be disclosed, except that nothing in this article shall be construed to compel a physician, psychologist, social worker, nurse, attorney, or other professional person to reveal information which has been given to him in confidence by members of a patient's family; ( ) (e) For research, provided that the Director of Health designates by regulation, rules for the conduct of research. Such rules shall include, but need not be limited to, the requirement that all researchers must sign an oath of confidentiality as follows:

    395

    ............... sh

    397

    Date

    399

    As a condition of doing research concerning persons who have received services from .......... (fill in the facility, agency or person), I, .........., agree not to divulge any information obtained in the course of such research to unauthorized persons, and not to publish or otherwise make public any information regarding persons who have received services such that the person who received services is identifiable. I recognize that unauthorized release of confidential information may make me subject to a civil action under provisions of the Welfare and Institutions Code.

    401

    ............... ac

    403

    Signed

    405

    ( ) (f) To the courts, as necessary to the administration of justice. ( ) (g) To governmental law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families. ( ) (h) To the Senate Rules Committee or the Assembly Rules Committee for the purposes of legislative investigation authorized by such committee. ( ) (i) If the recipient of services who applies for life or disability insurance designates in writing the insurer to which records or information may be disclosed. ( ) (j) To the attorney for the patient in any and all proceedings upon presentation of a release of information signed by the patient, except that when the patient is unable to sign such release, the staff of the facility, upon satisfying itself of the identity of said attorney, and of the fact that the attorney does represent the interests of the patient, may release all information and records relating to the patient except that nothing in this article shall be construed to compel a physician, psychologist, social worker, nurse, attorney, or other professional person to reveal information which has been given to him in confidence by members of a patient's family. ( ) The amendment of subdivision (d) of this section enacted at the 1970 Regular Session of the Legislature does not constitute a change in, but is declaratory of, the preexisting law.'

    407

    Subdivisions (g), (h), and (i) were added by amendment in 1972. Subdivision (j) was added by amendment in 1974.

    409

    Section 5328, specifically enumerating exceptions to the confidentiality requirement, does not admit of an interpretation importing implied exceptions. (County of Riverside v. Superior Court, 42 Cal.App.3d 478, 481, 116 Cal.Rptr. 886.)

    411

    3 One survey indicated that five of every seven people interviewed said they would be less likely to make full disclosure to a psychiatrist in the absence of assurance of confidentiality. (See, Comment, Functional Overlap Between the Lawyer and Other Professionals: Its Implications for the Doctrine of Privileged Communications (1962) 71 Yale L.J. 1226, 1255.)

    413

    4 The burden placed by the majority on psychiatrists may also result in the improper deprivation of two other constitutionally protected rights. First, the patient's constitutional right of privacy (In re Lifschutz, supra, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557) is obviously encroached upon by requiring the psychotherapist to disclose confidential communications. Secondly, because confidentiality is essential to effective treatment, the majority's decision also threatens the constitutionally recognized right to receive treatment. (People v. Feagley (1975) 14 Cal.3d 338, 359, 121 Cal.Rptr. 509, 535 P.2d 373; Wyatt v. Stickney (M.D.Ala.1971) 325 F.Supp. 781, 784, affd. sub nom. Wyatt v. Aderholt (5th Cir. 1974) 503 F.2d 1305; Nason v. Superintendent of Bridgewater State Hosp. (1968) 353 Mass. 604, 233 N.E.2d 908.)

    415

    5 A shocking illustration of psychotherapists' inability to predict dangerousness, cited by this court in People v. Burnick, supra, 14 Cal.3d 306, 326--327, fn. 17, 121 Cal.Rptr. 488, 535 P.2d 352, is cited and discussed in Ennis, Prisoners of Psychiatry: Mental Patients, Psychiatrists, and the Law (1972): 'In a well-known study, psychiatrists predicted that 989 persons were so dangerous that they could not be kept even in civil mental hospitals, but would have to be kept in maximum security hospitals run by the Department of Corrections. Then, because of a United States Supreme Court decision, those persons were transferred to civil hospitals. After a year, the Department of Mental Hygiene reported that one-fifth of them had been discharged to the community, and over half had agreed to remain as voluntary patients. During the year, only 7 of the 989 committed or threatened any act that was sufficiently dangerous to require retransfer to the maximum security hospital. Seven correct predictions out of almost a thousand is not a very impressive record. ( ) Other studies, and there are many, have reached the same conclusion: psychiatrists simply cannot predict dangerous behavior.' (Id. at p. 227.) Equally illustrative studies are collected in Rosenhan, On Being Sane in Insane Places (1973) 13 Santa Clara Law. 379, 384; Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, supra, 62 Cal.L.Rev. 693, 750--751.)

    417

    6 The majority concedes that psychotherapeutic dialogue often results in the patient expressing threats of violence that are rarely executed. (Ante, p. 441, p. 27 of 131 Cal.Rptr., p. 347 of 551 P.2d). The practical problem, of course, lies in ascertaining which threats from which patients will be carried out. As to this problem, the majority is silent. They do, however, caution that a therapist certainly 'should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient's relationships with his therapist and with the persons threatened.' (Id.)

    419

    Thus, in effect, the majority informs the therapists that they must accurately predict dangerousness--a task recognized as extremely difficult--or face crushing civil liability. The majority's reliance on the traditional standard of care for professionals that 'therapist need only exercise 'that reasonably degree of skill, knowledge, and care ordinarily possessed and exercised by members of (that professional specialty) under similar circumstances" (Ante, p. 438, p. 25 of 131 Cal.Rptr., p. 345 of 551 P.2d) is seriously misplaced. This standard of care assumes that, to a large extent, the subject matter of the specialty is ascertainable. One clearly ascertainable element in the psychiatric field is that the therapist cannot accurately predict dangerousness, which, in turn, means that the standard is inappropriate for lack of a relevant criterion by which to judge the therapist's decision. The inappropriateness of the standard the majority would have us use is made patent when consideration is given to studies, by several eminent authorities, indicating that '(t)he chances of a second psychiatrist agreeing with the diagnosis of a first psychiatrist 'are barely better than 50--50; or stated differently, there is about as much chance that a different expert would come to some different conclusion as there is that the other would agree." (Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, supra, 62 Cal.L.Rev. 693, 701, quoting, Ziskin, Coping With Psychiatric and Psychological Testimony, 126.) The majority's attempt to apply a normative scheme to a profession which must be concerned with problems that balk at standardization is clearly erroneous.

    421

    In any event, an ascertainable standard would not serve to limit psychiatrist disclosure of threats with the resulting impairment of treatment. However compassionate, the psychiatrist hearing the threat remains faced with potential crushing civil liability for a mistaken evaluation of his patient and will be forced to resolve even the slightest doubt in favor of disclosure or commitment.

  • 3 Hawkins v. Pizarro--"The Failure to Correctly Report Hepatitis C Test Results"

    Should doctors be liable to a third party if their failure to warn a patient about their disease leads to harm?

    2

    Page 1036

    5
    713 So.2d 1036

    8
    23 Fla. L. Weekly D1412

    11
    James E. HAWKINS and Ellen Hawkins f/n/a Ellen Shaw, his wife, Appellants,
    v.
    George R. PIZARRO, M.D., Appellee.

    14
    No. 96-2605.

    17
    District Court of Appeal of Florida,
    Third District.

    20
    June 10, 1998.
    Rehearing Denied Aug. 5, 1998.
    22

    Page 1037

    24

            Ford, Domnick, Wolf & Lopez-Albear and Sean C. Domnick, Miami; Barbara Green, for appellants.

    26

            Diaz & Morel-Saruski and Ana Morel-Saruski, Coral Gables; Hicks & Anderson and Ila J. Klion and Cindy L. Ebenfeld, Miami, for appellee.

    28

            Before NESBITT, COPE and LEVY, JJ.

    30

            COPE, Judge.

    32

            James E. Hawkins, one of the plaintiffs in this medical malpractice action, appeals the entry of summary judgment for the defendant/appellee George R. Pizzaro, M.D. We affirm.

    34

            In May 1994, Pizzaro examined Ellen Shaw and took a blood sample to test for hepatitis C. The laboratory results correctly showed that Shaw had tested positive for hepatitis C, but Pizzaro's office improperly advised Shaw that she had tested negative.

    36

            Several months later, Shaw met Hawkins and the two eventually married. Thereafter, the couple decided they would like to have a baby, and Shaw was seen by her gynecologist in that regard in May 1995. As a part of the examination, a blood sample was taken and Shaw was again tested for hepatitis C. This time the test was positive. As a consequence, in August 1995, Shaw contacted Pizzaro and asked him to re-examine her test results. Upon further review, Pizzaro discovered that the laboratory had in fact shown a positive test result. Shortly thereafter, James Hawkins also tested positive for hepatitis C.

    38

            Shaw and Hawkins filed this action against Pizzaro claiming medical negligence. Their claim was based on the theory that if Pizarro had correctly communicated the diagnosis to Shaw, then Shaw and Hawkins could have taken steps to prevent the transmission of the disease to Hawkins. Pizzaro moved for summary judgment against Hawkins on the ground that Hawkins was unknown to him at the time of his misreading of the test results and was not an identified third party to whom he could be said to owe a duty of care. Pizzaro did not file any affidavits in support of his motion. In opposition, Hawkins filed an affidavit of Lee A. Fisher, M.D., which stated:

    40

    3. It is my opinion, based upon my training and experience, that a physician such as DR. PIZZARO has a continuing duty to inform a patient of proper test results; especially when the test results are positive for a highly contagious disease such as Hepatitis-C. DR. PIZZARO continually breached this duty to inform up to the date that ELLEN HAWKINS learned of the correct test results.

    42

    4. It is further my opinion, based upon my training and experience, that it is foreseeable that a single, attractive, thirty-nine year old woman such as ELLEN HAWKINS would be dating and engaging in sexual relations. It is also foreseeable that ELLEN HAWKINS, unaware that she was positive for Hepatitis-C, would pass the disease on to someone with whom she had sexual relations.

    44

            The trial court granted Pizarro's motion and Hawkins has appealed.

    46

            We conclude that the summary judgment must be affirmed on authority of Pate v. Threlkel, 661 So.2d 278 (Fla.1995). In Pate,

    48

    Page 1038

    50

    Here, the alleged prevailing standard of care was obviously developed for the benefit of the patient's children as well as the patient. We conclude that when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician's duty runs to those third parties.

    52

            Id. at 282 (emphasis added).

    54

            On review of summary judgment, we must view the record in a light most favorable to Hawkins as the nonmoving party. Holl v. Talcott, 191 So.2d 40, 46 (Fla.1966). Viewed in that light, we must read the amended complaint, its attached affidavit, and the affidavit filed in opposition to the summary judgment motion as stating that hepatitis C is a sexually transmitted disease, that it was so transmitted in this case, and that the duty of a doctor in diagnosing a patient for such a disease includes warning the patient of the possibility of sexual transmission of the disease. Further, Hawkins' pleadings and affidavits must be read as indicating that the purpose of the doctor's duty to warn is to prevent the transmission of the disease to third parties--i.e., it exists specifically for the protection of those third parties because the patient has already contracted the disease.

    56

            While plaintiff has made a showing that the duty of care includes a duty intended for the benefit of third parties, Pate requires that it be for the benefit of "certain identified third parties and the physician knows of the existence of those third parties...." 661 So.2d at 282. Here, Shaw herself had not yet met Hawkins at the time of the incorrect diagnosis. As Hawkins was neither identified nor known to the physician, summary judgment was correctly entered.

    58

            Affirmed.

  • 4 Einhorn v. Seeley--"The Locksmith's Failure to Property Install a Lock"

    Should third parties employed to complete a service be liable for crimes committed due to their negligence?

    2

    Page 212

    5
    525 N.Y.S.2d 212

    8
    136 A.D.2d 122

    11
    Lori EINHORN and Kenneth Einhorn, Plaintiffs-Respondents,
    v.
    David SEELEY, Defendant-Respondent,
    REM Discount Security Products, Inc., Defendant-Appellant,
    15 East 21st Street Co., Defendant-Respondent.

    14
    Supreme Court, Appellate Division,
    First Department.

    17
    March 8, 1988.
    19

    Page 213

    21

            Kenneth Kirschenbaum, of counsel (Ira Levine with him on the brief; Kirschenbaum & Kirschenbaum, P.C., Garden City, attorneys), for defendant-appellant.

    23

            Michael C. Lesser, of counsel (Louis Engelmayer, New York City, attorney), for plaintiffs-respondents.

    25

    Before MURPHY, P.J., and SANDLER, CARRO, ASCH and KASSAL, JJ.

    27

            ASCH, Justice.

    29

            On June 7, 1981, the plaintiff, Lori Einhorn, was allegedly assaulted and raped in the building at premises located at 15 East 21st Street. She was accosted on the second floor landing and dragged by her assailant, concededly not a tenant, up the stairway, to the third floor, where the attack occurred inside of the apartment she was visiting. This action for personal injuries was commenced against the owner, David Seeley and 15 East 21st Street Co., and against appellant, Rem Discount Security Products, Inc. ("Rem"). Plaintiffs claim that Rem had improperly installed or repaired the lock on the front door of the building, through which the assailant may have entered the premises. They contend that the front door lock of the building was broken to such an extent that the door could be opened "with a firm push, even when locked", that this condition had been in existence for some time and brought to the attention of the landlord. At the time of this horrendous event, Lori was not a tenant. She and Kenneth Einhorn, the tenant, were engaged. They were not married until April 10, 1983, almost two years after the assault.

    31

            The Supreme Court denied defendant Rem's motion for summary judgment and its subsequent motion to renew. We reverse since we find no support for a different result under the established principles of contract or tort law. We do not believe that an extension of liability under the facts herein alleged, to comprehend a locksmith, for injury to a person not in privity with the locksmith, actually perpetrated by a stranger to both plaintiffs and defendants, allegedly arising out of a negligent repair or installation of a front door lock, is warranted.

    33

            Defendant Rem, in support of its motion for summary judgment, asserted, by its President, that it had no contract with plaintiffs with respect to the locksmith services it furnished the co-defendant landlord. Significantly, in their opposition, plaintiffs never specifically asserted the existence of a contractual duty, express or otherwise, on the part of defendant Rem toward them. Rather, in a conclusory fashion, they alleged that Rem's duty to plaintiff Lori Einhorn was "clearly established" and that "by undertaking to install and/or repair locks on the front door, defendants themselves created a duty to the tenants to properly install and/or repair security devices on the front door of the premises." It is clear, therefore, that an action based upon an express contract between plaintiffs and defendant locksmith, Rem, does not lie.

    35

            The action is, of course, not maintainable in contract on a third party beneficiary

    37

    Page 214

    39

    The first obstacle which arises is the fact that there has been no direct transaction between the plaintiff and the defendant, which usually is expressed by saying that they are not in "privity" of contract. There is thus no logical basis upon which the one may be required to perform the contract for the other, unless the contract has been made expressly for the benefit of the plaintiff, or it has been assigned to him. (Prosser & Keeton on The Law of Torts [5th ed], West Publishing Co. [1984], sec. 93, p 667.)

    41

            Fortunately, Moch Co. v Rensselaer Water Co. (supra) furnishes a signpost which helps us. In that case, an individual member of the public brought an action against a water works company for damages suffered as a result of defendant's negligent failure to furnish an adequate supply of water so as to extinguish a fire. Justice (then Chief Judge) Cardozo wrote an analysis, in 1928, which is still valid today and which furnishes the rationale for this opinion:

    43

            The plaintiff would have us hold that the defendant, when once it entered upon the performance of its contract with the city, was brought into such a relation with every one who might potentially be benefited through the supply of water at the hydrants as to give to negligent performance, without reasonable notice of a refusal to continue, the quality of a tort. ... We are satisfied that liability would be unduly and indeed indefinitely extended by this enlargement of the zone of duty. The dealer in coal who is to supply fuel for a shop must then answer to the customers if fuel is lacking. The manufacturer of goods, who enters upon the performance of his contract, must answer, in that view, not only to the buyer, but to those who to his knowledge are looking to the buyer for their own sources of supply. Every one making a promise having the quality of a contract will be under a duty to the promisee by virtue of the promise, but under another duty, apart from contract, to an indefinite number of potential beneficiaries when performance has begun. The assumption of one relation will mean the involuntary assumption of a series of new relations, inescapably hooked together. Again we may say in the words of the Supreme Court of the United States, "The law does not spread its protection so far" [citations omitted].

    45

            ( Moch Co. v Rensselaer Water Co., supra, at 168, 159 N.E. 896.)

    47

            Accordingly, plaintiffs, in opposing Rem's summary judgment motion, have completely failed to come forward with any viable theory for recovery on the basis of contractual obligation.

    49

            Plaintiffs are, therefore, relegated to the cause of action in tort pleaded in their first cause of action. "A defendant may be held liable for negligence only when it breaches a duty owed to the plaintiff ( Pulka v. Edelman, 40 N.Y.2d 781, 782 [390 N.Y.S.2d 393, 358 N.E.2d 1019] )." ( Strauss v. Belle Realty Co., 65 N.Y.2d 399, at 402, 492 N.Y.S.2d 555, 482 N.E.2d 34.) The essential question here is whether the defendant locksmith owed a duty, apart from contract, to plaintiffs. In deciding whether or not there is such liability, as Justice Kaye pointed out in the Strauss case:

    51

            But while the absence of privity does not foreclose recognition of a duty, it is still the responsibility of courts, in fixing the orbit of duty, "to limit the legal consequences of wrongs to a controllable degree" ( Tobin v Grossman, 24 NY2d 609, 619 [301 N.Y.S.2d 554, 249 N.E.2d 419]; see also, Howard v Lecher, 42 NY2d 109 [397 N.Y.S.2d 363, 366 N.E.2d 64] ), and to protect against crushing exposure to liability ( see, Pulka v Edelman, 40 NY2d 781 [390 N.Y.S.2d 393, 358 N.E.2d 1019], supra; Ultramares Corp. v. Touche, 255 NY 170 ). "In fixing the bounds of that duty, not only logic and science, but policy play an important role" ( De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055 [462 N.Y.S.2d 626, 449 N.E.2d 406];

    53

    Page 215

    55

            There is no basis in tort for liability in this case. This is not a case in which the defendant locksmith itself injured the plaintiff either by a direct volitional act or even by some negligent act, i.e., leaving a bag of tools in a doorway. Here, the act complained of by plaintiff was perpetrated by an intervening person. There will ordinarily be no duty thrust on a defendant to prevent a third party from causing harm to another. The exception may occur in the case where a special relationship exists between the defendant and the third person so as to give rise to a duty to control, or alternatively, when a special relationship exists between the defendant and the victim which gives the latter the right to protection (Restatement [Second] of Torts sec. 315). Thus, such special relationships have been held to include employers-employees, owners and occupiers of premises, common carriers and their patrons, and hosts who serve alcoholic beverages to their guests, among others (see, Private Person's Duty and Liability for Failure to Protect Another Against Criminal Attack by Third Person, 10 A.L.R.3d 619; Dooley, Modern Tort Law, sec. 3.12, vol 1, p 34). Although plaintiffs plead such duty on the part of defendant Rem, it is clear that they do not fit into any category which has been held to constitute such a special relationship.

    57

            It may be that the landlord is liable to the victim, Lori Einhorn. While there have been a few cases in which the landlord has been held liable to a tenant who has been a victim of crime as a result of a defective lock, none of those cases extends the zone of duty to include a third party who was hired by the landlord to install or repair the lock and who does so improperly. The expansion of the net of obligation to enmesh a landlord in such situation has been a slow process based on discriminating selection and wanton conduct on the part of the landlord. As pointed out by Presiding Justice Murphy, writing for this court in Gill v. New York City Housing Authority, 130 A.D.2d 256, at 262-263, 519 N.Y.S.2d 364:

    59

            A landlord is, of course, under a duty to take reasonable security measures to protect his tenants from the intentional criminal acts of others if he knows or should know that common areas upon his premises have been the scene of recurrent criminal activity ( Nallan v Helmsley-Spear, Inc., 50 NY2d 507 [429 N.Y.S.2d 606, 407 N.E.2d 451] supra; Miller v State of New York, 62 NY2d 506 [478 N.Y.S.2d 829, 467 N.E.2d 493] ). Thus, a landlord's failure to mainta locks (see, Miller v State of New York, supra ) or to post security personnel at entrances (see, Nallan v Helmsley-Spear, Inc., supra ), or to provide adequate lighting in places where criminals are known to lurk ( see, Loeser v Hale Gardens, 73 AD2d 187 ) may constitute negligence for which the landlord can be held accountable. And, indeed, this is as it should be because a landlord in his proprietary capacity is responsible for and presumed to be capable of maintaining his premises in reasonably secure and physically safe condition. ( See, Nallan v Helmsley-Spear, Inc., supra, [50 N.Y.2d] at 519 [429 N.Y.S.2d 606, 407 N.E.2d 451]; see also, Prosser and Keeton, Torts sec. 57, at 386 [5th ed 1984].)

    61

            ( See also, Waters v. New York City Housing Authority, 69 N.Y.2d 225, 513 N.Y.S.2d 356, 505 N.E.2d 922; Sherman v. Concourse Realty Corporation, 47 A.D.2d 134, 365 N.Y.S.2d 239.) It is noteworthy that in all of these cases the defendant landlord had notice of the dangerously defective locks or other security devices, as well as of the criminal activity. Thus, liability of the landlord who has a direct relationship with the tenant, even as compared with defendant locksmith, has itself been seriously limited, as a matter of public policy.

    63

    Page 216

    65

            Applying this analysis to the facts as presented to us, it seems clear that the locksmith, defendant Rem, did not undertake a duty to plaintiff Lori Einhorn when it entered into its relationship with the defendant landlord. Here we are concerned with a possible liability for an injury to a mere guest of a tenant caused by an unlawful act of a third party. Under these circumstances, to hold a locksmith responsible for the alleged consequences of an allegedly defective lock would be to enlarge the obligations of such artisans far beyond the existing law and beyond sound public policy.

    67

            The dissent argues that a trial is required to resolve the issues of liability with which we are presented. But this does not seem to be at all necessary under the circumstances herein. A locksmith is not answerable to the guest of a tenant, injured on the premises as the result of an attack perpetrated by a stranger who may have entered the building as a result of a defective lock, installed or maintained by an arrangement of the landlord with the locksmith. Accepting all of the facts claimed by the plaintiffs as being true, we follow the lead of the Court of Appeals in an analogous case, Strauss v. Belle Realty Co., 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34, and "we reject the suggestion of the dissent that there be a fact-finding hearing" (at 405, 492 N.Y.S.2d 555, 482 N.E.2d 34).

    69

            The day may well come when all victims of horrendous experiences, such as plaintiff Lori Einhorn, will be compensat either by government (see Holmes,The Common Law ) or universal insurance (Friedman, Law in a Changing Society, ch 5 [Colum U Press, 1972] ) or some other institutional device. But that day has not yet arrived. While traditional theories of liability continue to expand, unfortunately for plaintiffs neither the law of contract nor tort have been broadened sufficiently to encompass their claims herein.

    71

            Accordingly, the order of the Supreme Court, New York County (Martin Stecher, J.), entered September 3, 1986, which denied defendant Rem Discount Security Products, Inc.'s motion for summary judgment dismissing the complaint as to it, should be reversed, on the law, and summary judgment dismissing the complaint as against defendant Rem granted, without costs or disbursements. The appeal from the order of the Supreme Court, New York County (Martin Stecher, J.), entered April 8, 1987, which had denied defendant Rem's motion for renewal, is dismissed as academic.

    73

            Order, Supreme Court, New York County (Martin Stecher, J.), entered on September 3, 1986, reversed, on the law, and summary judgment dismissing the complaint as against defendant Rem granted, without costs and without disbursements, and the appeal from the order of said court, entered on April 8, 1987 is dismissed as academic.

    75

            All concur except SANDLER and KASSAL, JJ. who dissent in part in an Opinion by KASSAL, J.

    77

            KASSAL, Justice (dissenting in part).

    79

            I would grant summary judgment to defendant Rem Discount Security Products Inc. ("Rem") solely with respect to dismissing the second and third causes of action.

    81

            The second cause of action, for punitive damages, is legally deficient. It is well-settled that a claim for punitive damages does not constitute a separate cause of action. ( Green v. Fischbein, Olivieri, Rozenholc & Badillo, 119 A.D.2d 345, 351, 507 N.Y.S.2d 148; Carroll v. New York Property Insurance Underwriting Assoc., 88 A.D.2d 527, 528, 450 N.Y.S.2d 21, mot. for lv. to app. dismissed, 57 N.Y.2d 774; Bunker v. Bunker, 73 A.D.2d 530, 422 N.Y.S.2d 403). Rather, such a claim constitutes only an element of the total damages sought on the underlying cause of action. ( APS Food Systems v. Ward Foods, 70 A.D.2d 483, 421 N.Y.S.2d 223; Goldberg v. New York Times, 66 A.D.2d 718, 411 N.Y.S.2d 295; M.S.R. Assoc. v. Consolidated Mut. Ins. Co., 58 A.D.2d 858, 396 N.Y.S.2d 684).

    83

            Similarly deficient is the third cause of action by Kenneth Einhorn to recover for loss of "society, companionship and consortium

    85

    Page 217

    87

            Although this issue has not been addressed by the Court of Appeals, the Second and Fourth Departments have held that an action for loss of consortium may not be maintained unless the party seeking such damages was married to the injured person at the time the actionable conduct occurred. ( See, Briggs v. Butterfield Memorial Hospital, 104 A.D.2d 626, 479 N.Y.S.2d 758; Rademacher v. Torbensen, 257 App.Div. 91, 13 N.Y.S.2d 124) In Miller v. Davis, 107 Misc.2d 343, 433 N.Y.S.2d 974, the cause of action was dismissed, notwithstanding that the parties were to be married on the date of the accident and were actually married the next day. As was observed by the Second Department in Briggs, supra:

    89

    [I]n virtually every jurisdiction of the United States, a lawful marriage at the time the claim arises is a prerequisite to recovery for loss of services (see, e.g., Weaver v Searle & Co., 558 F Supp 720; Laws v Griep, 332 N.W.2d 339 [Iowa]; Tremblay v Carter, 390 So 2d 816 [Fla App]; Sostock v Reiss, 92 Ill App 3d 200 [47 Ill.Dec. 781, 415 N.E.2d 1094]; Angelet v Shivar, 602 SW2d 185 [Ky] ).

    91

            Accordingly, I would dismiss the second and third causes of action as legally insufficient.

    93

            I cannot, however, agree with the majority that the entire complaint against Rem must be dismissed as a matter of law. The majority premises its determination to grant total summary judgment on the grounds that plaintiffs were neither in privity of contract with Rem nor within the class of persons to whom that security company owed a duty of care.

    95

            First, I note that it has long been recognized that "the absence of privity does not foreclose recognition of a duty ...", Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402, 492 N.Y.S.2d 555, 482 N.E.2d 34, for "[t]here is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use". MacPherson v. Buick Motor Company, 217 N.Y. 382, 393, 111 N.E. 1050. Thus, I must disagree with the reasoning by which plaintiffs would be denied their day in court against Rem simply because the latter's services were performed pursuant to a contract with the co-defendant landlord.

    97

            Yet more troubling, is the majority's position with respect to the scope of Rem's duty of care. Here, it is urged that plaintiffs may not assert a claim in negligence against Rem because they did not have a special relationship with the security company which would render it obligated to prevent a third party from causing harm to plaintiff Lori Einhorn. This is not the issue. Rather, the issue is whether Rem could reasonably have perceived a risk to the tenants of the building if it performed its locksmith services negligently. As the Court of Appeals has recently reiterated:

    99

    [T]he concept of a duty of care, which is essential to the law of negligence, has meaning only when it is considered in relation to both the harm that the duty exists to prevent and the class of individuals to whom it is owed. 'The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension' that delimits the duty's scope ( Palsgraf v LIRR Company, 248 NY 339, 344 ).

    101

             Waters v. NYC Housing Authority, 69 N.Y.2d 225, 228-229, 513 N.Y.S.2d 356, 505 N.E.2d 922.

    103

            Here, Rem undertook to install, repair and/or maintain the lock on the front door of the premises where plaintiff Kenneth Einhorn, then Lori Einhorn's fiancee and now her husband, resided. As its very name, Rem Discount Security Products, Inc., denotes, Rem is in the business of providing goods and services that insure

    105

    Page 218

    107

            I further point out that acknowledging the existence of a category of persons to whom Rem owed a duty of care will not, as the majority fears, expose locksmiths to unlimited liability and contravene notions of "sound public policy". Unlike in Moch Company v. Rensselaer Water Company, 247 N.Y. 160, 159 N.E. 896, relied upon by the majority, the within plaintiffs are part of a limited and readily definable class, namely, the tenants, and their invitees, of the premises defendant has serviced for the purpose of providing security.

    109

            Once it has been determined that plaintiffs are within a category of persons to whom Rem owed a duty of care, we must turn to whether there exist issues of fact sufficient to defeat a motion for summary judgment. This "drastic remedy" is rarely granted in negligence cases. Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853. An examination of the record reveals no cause for exception here. The critical issues for the trier of facts are foreseeability and proximate cause, and it is in that regard that several factual issues should await resolution at trial. Among them are the nature and extent of the relationship between Rem and the codefendant owners of the building, the adequacy and timing of the repairs and/or installation made by Rem with respect to the front door lock, and the manner by which the assailant entered the building, including whether entry could have been gained by means other than the front door.

    111

            Accordingly, I would modify the order appealed from solely to the extent of dismissing the second and third causes of action, and otherwise affirm.

  • 5 Boyd v. Racine Currency Exchange--"The Non-Compliant Bank Teller and the Murdered Hostage"

    Does an owner’s duty to prevent harm against invitees require them to comply with criminal threats?

    2

    Page 39

    5
    306 N.E.2d 39

    8
    56 Ill.2d 95

    11
    Piney BOYD, Appellee,
    v.
    RACINE CURRENCY EXCHANGE, INC., et al., Appellants.

    14
    No. 45557.

    17
    Supreme Court of Illinois.

    20
    Nov. 30, 1973.
    Rehearing Denied Jan. 29, 1974.
    22

            [56 Ill.2d 96]

    24

    Page 40

    26

            Marshall I. Teichner, Ltd., Chicago (Edwin A. Strugala, Chicago, of counsel), for appellee.

    28

            RYAN, Justice:

    30

            Plaintiff's complaint was dismissed on motion of the defendants by the circuit court of Cook County for failure to state a cause of action. The appellate court reversed and remanded the cause to the circuit court. (8 Ill.App.3d 140, 289 N.E.2d 218.) We granted leave to appeal.

    32

            This is a wrongful death action against Racine Currency Exchange and Blanche Murphy to recover damages for the death of plaintiff's decedent during an attempted armed robbery. The facts surrounding that event, as alleged in the complaint and admitted by defendants' motion, are: The plaintiff's husband, John Boyd, was present in the Racine Currency Exchange on April 27, 1970, for the purpose of transacting business. While he was there, an armed robber entered and placed a pistol to his head and told Blanche Murphy, the teller, to give him the money or open the door or he would kill Boyd. Blanche Murphy was at that time located behind a bulletproof glass window and partition. She did not comply with the demand but instead fell to the floor. The robber then shot Boyd in the head and killed him.

    34

            Plaintiff alleges several acts of negligence by the Racine Currency Exchange and Blanche Murphy. Count I alleges that the defendants owed Boyd, a business invitee, the duty to exercise reasonable care for his safety and that they breached this duty when they refused to accede to the robber's demands. Count I also alleges that defendants acted negligently in adopting a policy, knowledge of which was deliberately withheld from their customers, according [56 Ill.2d 97] to which their money was to be protected at all costs, including the safety and the lives of the customers.

    36

            In count II the plaintiff alleges that the Currency Exchange was negligent in failing to instruct its employees regarding the course of conduct which would be necessary under the circumstances of this case to prevent exposing customers to unreasonable risks of harm. Count II further alleges that the Currency Exchange was negligent in employing a person who was incompetent to fulfill the responsibilities of her position. Negligence is also alleged in the failure to furnish guidelines of how to act in case of armed robbery, and alternatively that it was negligent in failing to disclose to its customers its policy of preserving its monies at all costs.

    38

            It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. (Hamlin's Wizard Oil Co. v. United States Express Co., 265 Ill. 156, 106 N.E. 623.) The plaintiff contends that a business proprietor has a duty to his invitees to honor criminal demands when failure to do so would subject the invitees to an unreasonable risk. It is claimed that this duty arises from the relationship between a landowner and a business invitee.

    40

            It is the general rule in Illinois and other jurisdictions that a person has no duty to anticipate the criminal acts of third parties. (Prosser, Handbook of the Law

    42

    Page 41

    44

            Also of little assistance in Sinn v. Farmers Deposit Savings Bank, 300 Pa. 85, 150 A. 163. In that case recovery for the plaintiff, who was injured when a bank robber detonated dynamite within the bank, was upheld. The plaintiff alleged that had the bank warned him that a bank robbery was in progress, as they had the opportunity to do, he could have escaped unharmed. The plaintiff's intestate in our case, however, was obviously on notice that a robbery was in progress, and plaintiff does not predicate her claim on the absence of warning.

    46

            The Restatement of Torts does not consider the specific issue before us. The Restatement does set forth the principle that a person defending himself or his property may be liable for harm to third persons if his acts create an unreasonable risk of harm to such persons. (Restatement (Second) of Torts, secs. 75 and 83.) However, these sections refer to situations in which the harm is caused directly by a person resisting, not by the criminal such as where a shot fired at a criminal hits a third person.

    48

            We are aware of only two cases which have discussed issues similar to the one with which we are faced here--whether a person injured during the resistance to a crime is entitled to recover from the person who offered the resistance. In Genovay v. Fox, 50 N.J.Super. 538, 143 A.2d 229, rev'd on other grounds, 29 N.J. 436, 149 A.2d 212, a plaintiff who was shot and wounded during the robbery of a bowling alley bar claimed that the proprietor was liable because instead of complying with the criminal demand he stalled the robber and induced resistance by those patrons present. The plaintiff was shot when several patrons attempted to disarm the bandit. The court there balanced the interest of the proprietor in resisting the robbery against the interest of the patrons in not being [56 Ill.2d 99] exposed to bodily harm and held that the complaint stated a cause of action. The court stated: 'The value of human life and of the interest of the individual in freedom from serious bodily injury weigh sufficiently heavily in the judicial scales to preclude a determination as a matter of law that they may be disregarded simply because the defendant's activity serves to frustrate the successful accomplishment of a felonious act and to save his property from loss.' (50 N.J.Super. at 558, 143 A.2d at 239--240.) The court held that under the circumstances it was for the jury to determine whether defendant's conduct was reasonable.

    50

            In Noll v. Marian, 347 Pa. 213, 32 A.2d 18, the court held that no cause of action existed. The plaintiff was present in a bank when an armed robber entered and announced 'It's a holdup. Nobody should move.' The bank teller, instead of obeying this order, dropped down out of sight. The gunman then opened fire and wounded the plaintiff. The court held that even though the plaintiff might not have been injured if the teller had stood still, the teller did not act negligently in attempting to save himself and his employer's property.

    52

            In Lance v. Senior, 36 Ill.2d 516, 224 N.E.2d 231, this court noted that foreseeability

    54

    Page 42

    56

            In the present case an analysis of those factors leads to the conclusion that no duty to accede to criminal demands should be imposed. The presence of guards and protective devices do not prevent armed robberies. The presence of armed guards would not have prevented the criminal in this case from either seizing the deceased and using him as a hostage or putting the gun to his head. Apparently nothing would have prevented the injury to the decedent except a complete acquiescence in the robber's demand, [56 Ill.2d 100] and whether acquiescence would have spared the decedent is, at best, speculative. We must also note that the demand of the criminal in this case was to give him the money or open the door. A compliance with this alternate demand would have, in turn, exposed the defendant Murphy to danger of bodily harm.

    58

            If a duty is imposed on the Currency Exchange to comply with such a demand the same would only inure to the benefit of the criminal without affording the desired degree of assurance that compliance with the demand will reduce the risk to the invitee. In fact, the consequence of such a holding may well be to encourage the use of hostages for such purposes, thereby generally increasing the risk to invitees upon business premises. If a duty to comply exists, the occupier of the premises would have little choice in determining whether to comply with the criminal demand and surrender the money or to refuse the demand and be held liable in a civil action for damages brought by or on behalf of the hostage. The existence of this dilemma and knowledge of it by those who are disposed to commit such crimes will only grant to them additional leverage to enforce their criminal demands. The only persons who will clearly benefit from the imposition of such a duty are the criminals. In this particular case the result may appear to be harsh and unjust, but, for the protection of future business invitees, we cannot afford to extend to the criminal another weapon in his arsenal.

    60

            For these reasons we hold that the defendants did not owe to the invitee Boyd a duty to comply with the demand of the criminal.

    62

            Accordingly, the judgment of the appellate court will be reversed, and the judgment of the circuit court of Cook County will be affirmed.

    64

            Appellate court reversed; circuit court affirmed.

    66

            [56 Ill.2d 101] GOLDENHERSH, Justice (dissenting):

    68

            I dissent. The majority opinion fails to take into account the principles of law clearly enunciated in Restatement (Second) of Torts, secs. 302B and 449, and on the basis of pure conjecture concludes that nothing that defendant's employee could have done would have saved the deceased from death or injury. The majority's polemic on the subject of the hazards which would be created by an application of established legal principles to this case finds little support in logic and none whatsoever in the legal authorities.

    70

            This case comes to us only on the pleadings and I agree with the appellate court that 'Whether what defendants did or did not do proximately caused the injury that befell plaintiff's decedent, whether Blanche Murphy had the time so she could, under the circumstances alleged, exercise the kind of judgment expected of a person of ordinary prudence, were questions of fact which, from all the evidence, must be decided by a trier of the facts, judge or jury.' I would affirm the judgment of the appellate court.

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