Jablonski by Pahls v. U.S.

• Decision Date: 08 August 1983
• Docket Number: No. 81-5786,81-5786
• Parties: Meghan Corinne JABLONSKI, a minor, by her Guardian ad Litem, Isobel C. PAHLS, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 391

712 F.2d 391

Meghan Corinne JABLONSKI, a minor, by her Guardian ad Litem, Isobel C. PAHLS, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 81-5786.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 6, 1982.

June 14, 1983.

As Amended Aug. 8, 1983.

William D. Keller, Hahn, Cazier & Leff, Los Angeles, Cal., for plaintiff-appellee.

James Stotter II, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT, WALLACE, and KENNEDY, Circuit Judges.

WALLACE, Circuit Judge:

Meghan Jablonski (Meghan), a minor, brought suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) & 2671-80 (the Act), for the wrongful death of her mother, Melinda Kimball. Kimball was murdered by the man she was living with, Phillip Jablonski. Meghan charged that psychiatrists at the Loma Linda Veterans Administration Hospital (the hospital) committed malpractice proximately resulting in her mother's death. The case was tried before the district judge who decided in favor of Meghan.

On appeal, the government first claims that Meghan's suit is barred by subsection 2680(h) of the Act because the suit arose out of an assault and battery. 28 U.S.C. § 2680(h). Second, it argues that the suit is barred under subsection 2680(a) of the Act because the claims arose out of the performance by federal employees of discretionary functions. Id. § 2680(a). Finally, the government contends that, under California law, no duty was owed to Meghan, that Kimball was not a foreseeable victim of Jablonski's violent tendencies, and that the alleged negligence was not the proximate cause of Kimball's death. We reject all of the government's contentions and affirm the judgment of the district court.

I

On July 7, 1978, Jablonski threatened Isobel Pahls, Kimball's mother, with a sharp object and apparently attempted to rape her. Pahls had also been the object of obscene telephone calls and other malicious acts which the police believed had been committed by Jablonski. Although Pahls did not file formal charges against Jablonski, she discussed with the police the possibility of his receiving psychiatric treatment. Shortly thereafter, Jablonski volunteered to undergo a psychiatric examination at the hospital.

The police immediately called the hospital and were informed that Jablonski would be treated by Dr. Kopiloff. Because Kopiloff was unable to come to the telephone, the policeman spoke instead with Dr. Berman, the head of psychiatric services. The policeman advised Berman of Jablonski's prior criminal record, the recent history of obscene telephone calls and malicious damage, and stated that, in his opinion, Jablonski needed to be treated on an in-patient basis. Although Berman stated that he would transmit this information to Kopiloff, he failed to do so. Kopiloff testified that had he received this information from the police, he would have involuntarily hospitalized Jablonski if possible.

On Monday, July 10, Kimball drove Jablonski to the hospital. In the interview with Jablonski and Kimball, Kopiloff learned that Jablonski had served a five year prison term for raping his wife, and that four days earlier he had attempted to rape Pahls. Jablonski informed Kopiloff that he had undergone psychiatric treatment previously, but refused to state where he had received the treatment. Kopiloff concluded that the patient was vague, noncommunicative and unwilling to share his prior medical history. He diagnosed Jablonski as an "anti-social personality" and "potentially dangerous." He recommended that Jablonski voluntarily hospitalize himself, but Jablonski refused. Kopiloff concluded that there was no emergency and that there was no basis for involuntary hospitalization. Jablonski was to return in two weeks.

In a private conference following the diagnostic interview, Kimball told Kopiloff that she felt insecure around Jablonski and was concerned about his unusual behavior. Kopiloff recommended that she leave Jablonski at least while he was being evaluated. When Kimball responded "I love him," Kopiloff did not warn her further because he believed she would not listen to him.

No attempt was made to locate Jablonski's prior medical records. Meghan's retained expert witness, Dr. Thompson, testified that under professional standards commonly practiced in the community, Kopiloff should have recognized that Jablonski was potentially very dangerous. He further testified that given the potential danger and the patient's reluctance to reveal his past medical treatment, Kopiloff should have obtained Jablonski's prior medical history at the veterans facilities in the Los Angeles and Long Beach area. He stated that these records could have been obtained by telephone without Jablonski's consent.

The hospital records of Jablonski's prior treatment revealed that in 1968 he had received extensive care at an Army hospital in El Paso. The El Paso records reported that Jablonski had a "homicidal ideation toward his wife," that on numerous occasions he had tried to kill her, that he "had probably suffered a psychotic break and the possibility of future violent behavior was a distinct probability," and that he was "demonstrating some masculine identification in beating his wife as his father did frequently to his mother." The final diagnosis concluded in part that Jablonski had a "schizophrenic reaction, undifferentiated type chronic, moderate; manifested by homicidal behavior toward his wife."

On Tuesday or Wednesday, July 11 or 12, Pahls telephoned Kopiloff and complained because Jablonski was not to return for two weeks. Kopiloff persuaded her not to call the police and agreed to see Jablonski on Friday, July 14. On Wednesday, July 12, Kimball and Meghan moved out of Jablonski's apartment and into Pahl's apartment because of warnings Kimball had received earlier that day from her priest. Kimball continued to see Jablonski, however, and drove him to the hospital for his second appointment.

On July 14, Jablonski met with both Kopiloff and Dr. Hazle, Kopiloff's supervisor. Although Jablonski volunteered that he had had frequent problems all his life with violent reactions, he was again vague as to his prior treatment and again refused a request to admit himself as an in-patient. Kopiloff concluded that Jablonski possessed an "anti-social personality with explosive features." Although Hazle believed that Jablonski was dangerous and that his case was an "emergency," both doctors concluded that there was no basis for involuntary hospitalization. Again, no effort was made to seek the prior medical records. Instead, Jablonski was scheduled for more tests and given a prescription for valium.

During Jablonski's appointment with Hazle and Kopiloff, Kimball stood in the hallway outside. Noticing that she seemed to be in distress, a third doctor, Dr. Warnell, chief of the Mental Health Clinic, invited her into his office. Kimball expressed fear for her personal safety. Warnell replied that "if she was afraid of her husband and that he didn't fit the criteria to be held in the hospital, that she could consider staying away from him." Although Warnell later relayed this information to Kopiloff and Hazle, they concluded that Jablonski was not homicidal or suicidal, and that he could not be involuntarily hospitalized. Another appointment was made for Jablonski for Monday, July 17.

On Sunday, July 16, Kimball went to Jablonski's apartment, apparently to pick up some baby diapers. Jablonski either was at the apartment at the time or arrived soon after. He then attacked and murdered her.

The district judge found that Meghan had proven several claims of malpractice against the hospital psychiatrists. The district judge's findings of malpractice for failure to record and transmit the information from the police, for failure to obtain the past medical records, and for failure adequately to warn Kimball, each of which the district court found proximately caused Kimball's death, are significant for purposes of our disposition.

II

The United States may not be sued except when it waives its sovereign immunity. Although the government generally has waived its immunity from tort claims in the Act, this waiver is limited by several exceptions. 28 U.S.C. § 2680. The government contends that Meghan's suit is barred by two of these exceptions. Id. § 2680(a), (h).

A.

The government argues first that it is immune from Meghan's suit because the claim "arises out of an assault and battery," and thus is excluded by subsection 2680(h). Subsection 2680(h) states in relevant part that the Act, as well as the jurisdiction based on it, does not apply to "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights ...."

Meghan responds that the government failed to include the subsection 2680(h) defense in the pretrial conference order, and that it cannot raise the defense for the first time on appeal. Ordinarily, the pretrial conference order takes the place of the pleadings, and a failure to include a defense in the order precludes the defendant from raising it on appeal. Fed.R.Civ.P. 16; see Donovan v. Crisostomo, 689 F.2d 869, 875 (9th Cir.1982). We have stated previously, however, that if a claim falls within one of the section 2680 exceptions, the district court lacks subject matter jurisdiction. Morris v. United States, 521 F.2d 872, 874 (9th Cir.1975); see also Nevin v. United States, 696 F.2d 1229, 1231 (9th Cir.1983). Since we are required to notice a lack of jurisdiction whether or not it is raised by the parties, see Mansfield, Coldwater & Lake Michigan Railway v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884); Fed.R.Civ.P. 12(h)(3), we must address the merits of the government's subsection...