Bauer v. Southwest Denver Mental Health Center, Inc., 82CA0906

• Decision Date: 31 January 1985
• Docket Number: No. 82CA0906,82CA0906
• Citation: 701 P.2d 114
• Parties: Barbara K. BAUER, Plaintiff-Appellant, v. SOUTHWEST DENVER MENTAL HEALTH CENTER, INC., Paul R. Polak, M.D., and Timothy Weissinger, M.D., Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 114

701 P.2d 114

Barbara K. BAUER, Plaintiff-Appellant, v. SOUTHWEST DENVER MENTAL HEALTH CENTER, INC., Paul R. Polak, M.D., and Timothy Weissinger, M.D., Defendants-Appellees.

No. 82CA0906.

Colorado Court of Appeals,

Div. III.

Jan. 31, 1985.

Rehearing Denied Feb. 28, 1985.

Certiorari Denied May 28, 1985.

Myrick & Newton, P.C., William E. Myrick, Steven E. Napper, Denver, for plaintiff-appellant.

Pryor, Carney & Johnson, P.C., Peter W. Pryor, Edward D. Bronfin, Englewood, for defendants-appellees.

METZGER, Judge.

In this malpractice and wrongful death action, plaintiff, Barbara K. Bauer, appeals the trial court's entry of summary judgment in favor of defendants, Southwest Denver Mental Health Center, Inc. (Southwest), Paul R. Polak, M.D. (Polak), and Timothy Weissinger, M.D. (Weissinger). We affirm in part and reverse in part.

Plaintiff brings this action as the surviving spouse of Jon Bauer, who was killed on September 15, 1979, when David P. DelaCruz (DelaCruz) boarded the R.T.D. bus Bauer was driving and stabbed him to death with a knife stolen moments before in a sporting goods store robbery. DelaCruz was a patient of Southwest prior to and at the time of the incident. Defendant Polak is the executive director of Southwest, and defendant Weissinger is the Medical Director of Southwest and a psychiatrist who had been treating DelaCruz.

DelaCruz was arrested in December 1978 as a result of a family dispute during which he assaulted his father and his brother. He was examined and diagnosed at Denver General Hospital as being in an acute exacerbation of a schizophrenic illness, grossly paranoid, openly hostile, violent, and dangerous to himself and others. He was certified for treatment at Southwest on January 2, 1979. Involuntary treatment continued until April 4, 1979, when voluntary treatment on an outpatient basis began. According to the allegations of the complaint, Mellaril was prescribed to alleviate the symptoms of paranoid schizophrenia; however, intake of this medication was reduced in July 1979, and then unilaterally discontinued by DelaCruz in August 1979, contrary to his treatment plan but with defendants' knowledge. During this time, DelaCruz was to attend monthly therapy sessions. He missed his July 1979 appointment but appeared briefly at Southwest in August, which was his last contact with Southwest prior to Jon Bauer's death.

After being charged with first degree murder DelaCruz was adjudicated not guilty by reason of insanity and committed to the Colorado Department of Institutions.

Plaintiff brought this action, alleging that defendants had failed to obtain a complete psychiatric history of DelaCruz, and had failed to supervise him properly, namely, by allowing him to discontinue his medication, to miss therapy appointments, and by not independently investigating his employment and home situations. She asserted that defendants' actions in regard to DelaCruz so deviated from the proper standard of psychiatric care in the community as to cause the death of Jon Bauer. As well, plaintiff sought damages based on outrageous conduct, and also requested punitive damages.

Defendants denied all material allegations of the complaint and moved for summary judgment on all issues of liability. The trial court granted defendants' motion, and this appeal followed.

I.

Plaintiff first contends that the trial court erred in holding that she had a duty to present affidavits on the issue of causation when defendants raised the issue in their motion for summary judgment but failed to provide any affidavits in support of that allegation. Citing Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978), she argues that this requirement of providing affidavits improperly shifted the burden of proof to her. We agree.

Summary judgment is appropriate only in the clearest of cases, where no doubt exists concerning any material fact. Roderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977). In considering a motion for summary judgment, the trial court must accept the non-moving party's pleadings as true unless the depositions and admissions on file, together with the affidavits, clearly disclose that there is no genuine issue as to any material fact, with any doubts being resolved in favor of the non-moving party. Abrahamsen v. Mountain States Telephone & Telegraph Co., 177 Colo. 422, 494 P.2d 1287 (1972). Norton v. Leadville Corp., 43 Colo.App. 527, 610 P.2d 1348 (1979).

The moving party bears the burden of establishing that no genuine issue of material fact exists. If the moving party meets this burden, the opposing party may, but is not required to, submit opposing affidavits. Ginter v. Palmer & Co., supra. Counsel cannot raise a genuine issue simply by means of argument; the contentions must be supported in accordance with the requirements of C.R.C.P. 56. Sullivan v. Davis, 172 Colo. 490, 474 P.2d 218 (1970).

Relying on Miller v. Van Newkirk, 628 P.2d 143 (Colo.App.1980), defendants assert that plaintiff's failure to supply affidavits on the issue of causation renders the trial court's ruling correct. Defendants' reliance is misplaced. Miller v. Van Newkirk is distinguishable.

In Miller, defendant's motion for summary judgment was accompanied by affidavits from expert physician witnesses, attesting to defendant's lack of negligence. In response, plaintiff provided no affidavits from any experts on the issue of negligence, but instead, relied on his pleadings and on affidavits of experts which did not show that any testimony on negligence would be forthcoming at trial. Thus, the trial court's summary judgment was affirmed.

Here, neither side has presented any affidavits on the causation issue. Since there was no showing by defendants of specific facts probative of a right to judgment, defendants failed to meet their burden under C.R.C.P. 56. Thus, it was unnecessary for plaintiff to provide affidavits on the causation issue. See Durnford v. City of Thornton, 29 Colo.App. 349, 483 P.2d 977 (1971).

Accordingly, the trial court was obliged to treat the allegations of plaintiff's complaint as true. Since the complaint alleged that the defendants' deviation from the requisite standard of psychiatric care in the community caused the damages complained of, a genuine issue of material fact remained to be decided. Consequently, we conclude that the trial court erred in granting summary judgment as to this issue.

II.

Plaintiff next asserts that the trial court erred in dismissing her claim that defendants' failure to utilize the procedures for emergency short-term commitment set out in § 27-10-105(1)(a), C.R.S., constituted negligence per se. We disagree.

In order for an actionable claim of negligence per se to arise, the statute in question must prohibit or require a particular act. Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64 (1935). As we stated in Sego v. Mains, 41 Colo.App. 1, 578 P.2d 1069 (1978), interpreting a statute worded in similarly permissive terms: "It is an essential element of negligence per se that the statute proscribe or prescribe specific conduct on the part of the tortfeasor, ... that is, detail whether 'particular acts shall or shall not be done' by the party charged with observing the statute."

Section 27-10-105(1)(a), C.R.S., provides in pertinent part:

"When any person appears to be mentally ill and, as a result of such mental illness, appears to be an imminent danger to others or to himself or appears to be gravely disabled, ... a professional person ... upon probable cause and with such assistance as may be required, may take the person into custody, or cause him to be taken into custody, and place him in a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation." (emphasis added)

This permissive language necessarily implies the use of judgment and discretion on the part of the professional seeking to invoke its provisions. While the statute creates a power, it does not impose a mandate. Consequently, a violation of this statute, while possibly relevant to a claim for relief in malpractice, cannot, by definition, create a claim based on negligence per se. Therefore, we conclude that the trial court correctly granted defendants' motion for summary judgment on this claim.

III.

Plaintiff next contends that the trial court erred in granting summary judgment on the issues of outrageous conduct and punitive damages. We disagree.

A.

Liability for outrageous conduct exists where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970). The trial court must determine, as a threshold matter of law, whether the defendant's alleged conduct was sufficiently heinous to create a submissible claim. Blackwell v. Del Bosco, 35 Colo.App. 399, 536 P.2d 838 (1975), aff'd 191 Colo. 344, 558 P.2d 563 (1976). If, after viewing the evidence in the light most favorable to plaintiff, the court determines that no reasonable person could conclude that the defendant's conduct was outrageous, summary judgment is...