Bishop v. SC Dept. of Mental Health

• Decision Date: 08 June 1998
• Docket Number: No. 24799.,24799.
• Citation: 502 S.E.2d 78,331 S.C. 79
• Parties: Brenda D. BISHOP, as Guardian ad Litem for Bobbi Hatley Robertson, Petitioner, v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH, Respondent.
• Court: South Carolina Supreme Court

331 S.C. 79

502 S.E.2d 78

Brenda D. BISHOP, as Guardian ad Litem for Bobbi Hatley Robertson, Petitioner, v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH, Respondent.

No. 24799.

Supreme Court of South Carolina.

Heard December 4, 1997.

Decided June 8, 1998.

Rehearing Denied July 17, 1998.

H.W. Pat Paschal, Jr., of Miller & Paschal, Greenville, for petitioner.

Ashby W. Davis, Steven A. Snyder, and Gregory A. Morton, all of Donnan, Morton, Davis & Snyder, P.A., Greenville, for respondent.

BURNETT, Justice:

This Court granted certiorari to review the Court of Appeals' opinion in Bishop v. South Carolina Department of Mental Health, 323 S.C. 158, 473 S.E.2d 814 (Ct.App.1996). We affirm as modified.

FACTS

On March 1, 1990, Petitioner Brenda Bishop (grandmother) signed an affidavit which led to the involuntary commitment of her daughter, Tammi Lee Hatley (mother), to Respondent South Carolina Department of Mental Health (Department) for mental illness. Specifically, grandmother alleged mother had made threats against Bobbi Hatley Robertson (victim), mother's three-year-old daughter. At the time, grandmother had legal custody of victim.

Mother was lawfully committed to the Patrick B. Harris Psychiatric Hospital where she was examined by a physician, observed by nurses, and interviewed by a social worker. Two designated examiners examined mother and determined she was not mentally ill. Consequently, on March 2, 1990, mother was released pursuant to an order of the probate court.

On March 3, 1990, mother appeared at the home of grandmother. Grandmother allowed mother to enter the home and grandmother, mother and victim spent several hours visiting together. Grandmother then acquiesced to mother's request to allow her to have custody of victim for a specific period of time. Thereafter, victim left with mother.

After mother returned victim to grandmother a few hours later, grandmother noticed victim had green felt tip magic markings on her arms and body, including her abdominal and vaginal areas. Victim was examined by a physician at Greenville Memorial Hospital; no evidence of penetration or other trauma was found.

Grandmother brought this action on behalf of victim against the Department for the physical abuse of victim allegedly received at the hands of mother. Specifically, grandmother alleged the Department was negligent in releasing mother, in failing to warn of her release, and in failing to properly diagnose and treat mother for those illnesses which caused her to have dangerous propensities towards victim.

The circuit court granted summary judgment in favor of the Department. The court held the Department was not civilly liable pursuant to the provisions of S.C.Code Ann. §§ 15-78-60 (Supp.1997) and XX-XX-XXX (1976) for releasing mother.¹ The court concluded the Department had no duty to warn grandmother of mother's release. The court found grandmother was well aware of mother's alleged threats at the time she permitted mother to take victim for visitation. Finally, the circuit court held any duty of the Department regarding the diagnosis and treatment of mother was owed to mother and not to third parties.

On appeal, grandmother argued the circuit court erred in granting summary judgment on victim's negligence claims against the Department based on its findings that the Department did not owe a duty to warn victim of mother's release and that the Department did not owe any duty of care to victim regarding mother's treatment. The Court of Appeals disagreed and affirmed the circuit court's grant of summary judgment. Bishop, supra.

The Court of Appeals found the evidence established mother did not make a specific threat of harm to victim while in the Department's custody and, therefore, the Department had no duty to warn of her release. The Court of Appeals noted grandmother, victim's guardian, was obviously aware of mother's release when she appeared at her home and grandmother was aware of mother's threats to harm victim, yet grandmother allowed mother to take victim from her home for an unsupervised visit. With regard to the Department's duty to properly diagnose and treat mother, the Court of Appeals held the Department owed this duty to mother and not victim. Id.

ISSUES

I. Did the Court of Appeals err in affirming the circuit court's grant of summary judgment on the basis that the Department owed no duty to warn victim of mother's release?

II. Did the Court of Appeals err in holding the Department did not owe a duty of care to victim to properly diagnose and treat mother; instead, this duty of care was only owed to mother?

DISCUSSION

Standard of Review

Summary judgment is appropriate where it is clear there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Hamiter v. Retirement Division of South Carolina Budget and Control Board, 326 S.C. 93, 484 S.E.2d 586 (1997). In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Id.

I.

Grandmother argues the Court of Appeals erred in affirming the grant of summary judgment to the Department because the Department had a common law duty to warn victim of mother's release since victim was a known potential victim of mother. Specifically, grandmother contends the Court of Appeals erred in finding because no express specific threat of harm was made by mother against victim while in the custody of the Department, the Department had no duty to warn victim. According to grandmother, the Department knew mother had made specific threats against victim; therefore, it had a duty to warn victim upon mother's release.

An essential element in a cause of action for negligence is the existence of a legal duty of care owed by the defendant to the plaintiff. Without a duty, there is no actionable negligence. Rogers v. S.C. Dep't of Parole & Community Corrections, 320 S.C. 253, 464 S.E.2d 330 (1995).

South Carolina law does not recognize a general duty to warn of the dangerous propensities of others. Rogers, supra; Sharpe v. S.C. Dep't of Mental Health, 292 S.C. 11, 354 S.E.2d 778 (Ct.App.1987), cert. dismissed, 294 S.C. 469, 366 S.E.2d 12 (1988). However, when a defendant has the ability to monitor, supervise, and control an individual's conduct, a special relationship exists between the defendant and the individual, and the defendant may have a common law duty to warn potential victims of the individual's dangerous conduct. Rogers, supra (citing Restatement (Second) of Torts §§ 315 & 319). This duty to warn arises when the individual has made a specific threat of harm directed at a specific individual. Id.

The seminal case on the liability of one treating a mentally afflicted patient for failure to warn or protect third persons threatened by a patient is Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976). In Tarasoff, the court permitted the plaintiffs to amend their complaints to state a cause of action against the therapists by asserting that the therapists in fact determined that their patient presented a serious danger of violence to the decedent, or pursuant to the standards of their profession should have so determined, but nevertheless failed to exercise reasonable care to protect decedent from that danger. The patient, a voluntary out-patient, informed his therapist that he was going to kill a girl, unnamed yet readily identifiable as the decedent, when she returned from Brazil. No one warned the decedent of her peril. Shortly after decedent returned from Brazil, the patient killed her. According to the court,

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.

Id. at 20, 551 P.2d at 340. The court, citing Restatement (Second) of Torts §§ 315-320 to support its position, stated when the defendant stands in some special relationship to the person whose conduct needs to be controlled, a duty of care may be imposed upon the defendant to protect threatened third parties from harm. The court then found a special relationship between the patient and therapists which would give rise to this duty to protect a threatened third person from harm. Id.

Here, the Department had a special relationship with mother because the Department had custody and control of mother. Thus, if the Department knew or should have known a specific threat was made by mother, the Department had a duty to warn the threatened third party of mother's release.

In our opinion the Court of Appeals' interpretation of Rogers requiring the threat to be made while in the custody of defendant is too narrow. While cases following Tarasoff have made clear that this duty is only owed when a patient specifically threatens a readily identifiable third party, none of these cases limit liability by requiring the threat to be made while under the control of or in the custody of the defendant. Rogers, supra; Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728 (1980); Cairl v. State, 323 N.W.2d 20 (Minn.1982). Instead, all that is required is the defendant be aware or should have been aware of the specific threat made by the patient to harm a specific person. See Jablonski v. United States, 712 F.2d 391 (9th Cir.1983)

(patient's previous history indicated he would direct his violence against...