Bogust v. Iverson

• Decision Date: 05 April 1960
• Citation: 102 N.W.2d 228,10 Wis.2d 129
• Parties: Raymond BOGUST et al., Appellants, v. Ralph G. IVERSON, Respondent.
• Court: Wisconsin Supreme Court

Page 228

102 N.W.2d 228

10 Wis.2d 129

Raymond BOGUST et al., Appellants, v. Ralph G. IVERSON, Respondent.

Supreme Court of Wisconsin.

April 5, 1960.

Eisenberg & Kletzke, Milwaukee, John W. Bernard, Alvin H. Eisenberg, Milwaukee, of counsel, for appellants.

Slocumb, Bundy, Carey & Solberg, Menomonie, for respondent.

Hart, Kraege, Jackman & Wightman, Madison, Henry E. Butler, Jr., Arthur B. Hanson, Emmett E. Tucker, Jr., Washington, D. C., Elisha Hanson, Washington, D. C., of counsel, amicus curiae.

MARTIN, Chief Justice.

Defendant is 'an educator by profession.' Jeannie Bogust was born May 3, 1939. At the times referred to in the complaint she was a pupil at Stout State College where defendant was employed as a full time director of student personnel services and professor of education with a Ph.D. degree. It is alleged that in such capacity the defendant was 'charged with the maintenance of a counseling and testing center for personal, vocational, educational, scholastic, or other problems, including those students torn by conflicting feelings which cause worry and social ineffectiveness.'

The complaint states that commencing in November 1957 Jeannie, as a student of the college, was under the direct guidance and supervision of the defendant; that defendant administered to her aptitude and personality tests and he was familiar with her personal, social and educational problems and her conflicting feelings, environment and social ineffectiveness; that he was well aware of her emotional disturbances, social conflicts, scholastic difficulties and personal problems during the period of November 11, 1957 through April 15, 1958; and

'* * * that although said student was constantly in need of professional guidance after April 15th, 1958, said defendant suggested termination of future interviews regarding her problems; that as a result of the failure of proper guidance by said defendant as aforesaid, she suffered psychological and emotional injuries and disturbances depriving her of her own volition and resulting in death by her own hand on May 27th, 1958.'

It is alleged:

'That said defendant negligently and carelessly failed to perform his duties as such Director in the following:

'(a) That he failed to secure or attempt to secure emergency psychiatric treatment after he was aware or should have been aware of her inability to care for the safety of herself.

'(b) That he failed at all times to advise the said parents of Jeanie Bogust or contact them concerning the true mental and emotional state of their said daughter, thus preventing them from securing proper medical care for her.

'(c) That he failed to provide proper student guidance.'

For the purposes of this decision we can assume the truth of only such allegations as are material statements of fact. Statements which are conclusions are not admitted by demurrer. Mitchell v. City of Horicon, 1953, 264 Wis. 350, 59 N.W.2d 469.

'A demurrer to a complaint admits all the facts therein well pleaded, but it does not admit erroneous conclusions drawn from such facts by the pleader even though the conclusions bear the semblance of statements of fact.' Northwestern Mut. Life Ins. Co. v. State, 1920, 173 Wis. 119, 125, 180 N.W. 138, 141.

The first question presented on appeal is whether there is a legal duty on the part of the defendant of such nature as will sustain this action. As pointed out by the trial court, before liability can attach there must be found a duty resting upon the person against whom recovery is sought and then a breach of that duty. Palmer v. Janesville Improvement Co., 1928, 195 Wis. 607, 219 N.W. 437; Miller v. Welworth Theatres, 1956, 272 Wis. 355, 75 N.W.2d 286.

Defendant is not a person qualified as a medical doctor or a specialist in mental disorders. It is alleged that he is an 'educator by profession,' a professor of education with a doctor of philosophy degree. Admitting that a teacher is not an insurer of the health, welfare and safety of his students, Grosso v. Wittemann, 1954, 266 Wis. 17, 62 N.W.2d 386, plaintiffs argue that he does have the duty to use reasonable care, citing the Grosso case and Restatement of the Law of Torts, Vol. II, sec. 320, p. 868:

'b. Helplessness of other. * * * So too, a child while in school is deprived of the protection of his parents or guardian. Therefore, the actor who takes custody of * * * a child is properly required to give him the protection which the custody or the manner in which it is taken has deprived him. * * *

'd. Duty to anticipate danger. One who has taken custody of another may not only be required to exercise reasonable care for the other's protection when he knows or has reason to know that the other is in immediate need thereof, but also to make careful preparations to enable him to give effective protection when the need arises, and to exercise reasonable vigilance to ascertain the need of giving it. * * *'

The three acts of negligence with which the defendant is charged in the complaint are ground on the theory that he had such a familiarity with and knowledge of Jeannie's problems and her 'emotional disturbances, social conflicts, scholastic difficulties' that in the exercise of reasonable intelligence and judgment he should have realized her need for psychiatric treatment and acted accordingly--in securing such treatment, in advising her parents, and in providing proper guidance.

The trial court held:

'To hold that a teacher who has had no training, education or experience in medical fields is required to recognize in a student a condition the diagnosis of which is in a specialized and technical medical field, would require a duty beyond reason.'

Plaintiffs allege defendant was charged with the maintenance of a counseling and testing center for various educational, vocational and personal problems which students of the college might have, but that fact does not qualify him as an expert in the field of medicine or psychiatry. Granting that he had some knowledge of Jeannie's emotional and other difficulties as the result of his meetings with her during a period of five months, as a teacher he cannot be charged with the same degree of care based on such knowledge as a person trained in medicine or psychiatry could exercise.

The first of negligence alleged is that the defendant failed to secure psychiatric treatment for Jeannie 'after he was aware or should have been aware of her inability to care for the safety of herself.' This clearly implies that he should have known she had suicidal tendencies. But there is no allegation of fact that would have apprised the defendant, as a reasonably prudent man, that she had such tendencies. The statement is merely a conclusion. The same comment applies to the second act of negligence alleged, that of failing to advise the parents 'thus preventing them from securing proper medical care for her.' The duty of advising her parents could arise only from facts establishing knowledge on the part of defendant of a mental or emotional state which required medical care; and no such facts are alleged.

The allegation that defendant failed to provide proper student guidance apparently refers to the fact that he 'suggested termination of future interviews regarding her problems.'

Jeannie was suffering from emotional disturbances and social conflicts before she came under defendant's guidance. Plaintiffs rely on the 'further harm' doctrine defined in Restatement of the Law of Torts, Vol. II, sec. 322, where it is stated, in part (Comment d, p. 872):

'The liability which this Section recognizes is not imposed as a penalty for the actor's original misconduct, but for a breach of a separate duty to aid and protect the other after his helpless condition caused by the actor's misconduct is or should be known.'

There is no allegation that the interviews between the defendant and Jeannie benefited her or that there was a duty on his part to continue them or that their termination caused the injury or placed her in a worse position than she was when they were begun. See Restatement of the Law of Torts, Vol. II, sec. 323(2), p. 873:

'One who gratuitously renders services to another, otherwise than by taking charge of him when helpless, is not subject to liability for discontinuing the services if he does not thereby leave the other in a worse position than he was in when the services were begun.'

Jeannie had various problems before the interviews were undertaken, but was she 'helpless' in that she was unable to look after her own safety? There is no allegation of such a fact, as pointed out above. Nor is there any allegation that she became so 'helpless' during the time the interviews were carried on or that, if she did, she exhibited such manifestations as would charge the defendant with knowledge thereof.

The allegation in point is that although the deceased was in need of professional guidance after April 15, 1958, the defendant suggested termination of the interviews and that:

'* * * as a result of the failure of...