Boulanger v. Pol, No. 72534

CourtUnited States State Supreme Court of Kansas
Writing for the CourtHOLMES
Citation258 Kan. 289,900 P.2d 823
PartiesDarrell W. BOULANGER, Appellant, v. Dr. P. Albert POL and Applewood Care Center, Inc., Appellees.
Docket NumberNo. 72534
Decision Date18 August 1995

Page 823

900 P.2d 823
258 Kan. 289
Darrell W. BOULANGER, Appellant,
v.
Dr. P. Albert POL and Applewood Care Center, Inc., Appellees.
No. 72534.
Supreme Court of Kansas.
Aug. 18, 1995.

Page 824

Syllabus by the Court

1. Rules for summary judgment are stated and applied.

2. In Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), this court recognized a cause of action in favor of a third party for the negligent release of an involuntary mental patient. The cause of action was based upon the statutory requirements of the Kansas Treatment Act for Mentally Ill Persons, K.S.A. 59-2901 et seq.

3. Statements in Durflinger that the cause of action described in syllabus p 2 was one of "medical malpractice" are disapproved.

4. The cause of action for negligent release of an involuntary mental patient recognized in Durflinger is inapplicable to, and does not create a cause of action for, the alleged negligent release of a voluntary patient.

5. As a general rule, there is no duty to control the conduct of another in order to protect a third person from harm. An exception may exist if there is a special relationship between two persons which gives one person the requisite control over the actions of the other. Restatement (Second) of Torts § 315 (1965).

6. Ordinarily, in an action based upon an alleged failure to warn there is no duty to warn when the victim is fully aware of the potential danger.

7. Under the facts of this case, no special relationship existed which would support a duty of the defendants under Restatement (Second) of Torts § 315 (1965).

W.J. Fitzpatrick, of Fitzpatrick & Bass, Independence, argued the cause and was on the brief, for appellant.

Page 825

[258 Kan. 290] Scott K. Logan, of Logan and Logan, Prairie Village, argued the cause and Kate F. Baird, of the same firm, was with him on the brief, for appellee P. Albert Pol.

Jeffrey W. Jones, of Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, argued the cause, and Thomas L. Theis, of the same firm, was with him on the brief, for appellee Applewood Care Center, Inc.

Wayne T. Stratton and David N. Harger, of Goodell, Stratton, Edmonds & Palmer, L.L.P., Topeka, were on the brief for amicus curiae Kansas Medical Society.

HOLMES, Chief Justice:

This is an action for personal injuries sustained when Darrell W. Boulanger (plaintiff/appellant) was shot by Ron Hill 10 days after Ron was discharged from an intermediate health care facility. Plaintiff appeals from the decision of the trial court granting summary judgment to Dr. P. Albert Pol and Applewood Care Center, Inc. (defendants/appellees). Plaintiff argues the defendants were negligent in releasing Ron. Additionally, plaintiff argues the defendants assumed care of a dangerous person and had a duty to warn him of Ron's discharge or to detain and commit Ron. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3017 and Kansas Supreme Court Rule 8.02 (1994 Kan.Ct.R.Annot. 46). We affirm.

The facts will be set forth in some detail. Darrell Boulanger is the uncle of Ron Hill. As a result of a brain injury sustained while a teenager, Ron has suffered from physical and mental disabilities. In the late 1980's, Ron became preoccupied with religion and believed plaintiff was the devil incarnate.

In November 1989, Ron drove to plaintiff's home and physically assaulted him. Following the incident, Ron voluntarily admitted himself to Coffeyville Regional Medical Center (CRMC) under the treatment of Dr. Cantwell. Almost two weeks later, he was discharged to his parents' care.

In February 1990, Ron was again voluntarily hospitalized at CRMC due to suicide threats. While at CRMC, Ron made no statements or threats toward plaintiff. Despite Dr. Cantwell's recommendation that Ron be placed in a structured environment, Ron [258 Kan. 291] was discharged and returned to his parents' home. Several weeks later, Ron's father asked Ron to help move furniture to plaintiff's home. After assaulting his father, Ron attempted to stab himself. Following the incident, Ron was voluntarily admitted to CRMC for the third time. While at CRMC, Ron made no statements or threats toward plaintiff. On April 5, 1990, at Dr. Cantwell's suggestion, Ron was transferred to Applewood Care Center, Inc. (Applewood). Ron's admission to Applewood was voluntary.

At the time of his discharge from CRMC, Dr. Cantwell did not believe Ron was dangerous to himself or others if he took his medication and was in a structured setting. The purpose in transferring Ron to Applewood was to provide a structured environment away from home, daily medication monitored by a psychiatrist, and training in independent living skills. The eventual plan was for Ron to go to a special facility for victims of head injuries when space became available.

Applewood is an intermediate care facility for the mentally ill, but is not a mental health treatment center. Applewood provides residents a place to live, monitored medication, training in independent living skills, and a stable and structured environment. Applewood is not equipped to deliver intensive psychotherapy and does not accept dangerous residents.

Dr. P. Albert Pol, a psychiatrist, was Applewood's medical director and Ron's primary care physician during his stay at Applewood. Dr. Pol was an independent contractor of Applewood. Dr. Pol met with Ron once per month while he was at Applewood.

While at Applewood, Ron was monitored for evidence of continuing homicidal and suicidal ideation, but did not exhibit any such behavior. Ron never indicated an intention to harm plaintiff, his father, or himself, nor did he refer to his uncle as Satan. Further, Ron's parents did not report any threats of violence to plaintiff or Ron's father when he was home for visits. Ron told his mother during one visit that he loved plaintiff and would hug and kiss him if he could come home.

Page 826

On August 10, 1990, either at the request of Ron and his parents, or upon Dr. Pol's own volition, Ron was discharged to the care of his parents. Dr. Pol was solely responsible for the discharge; Applewood[258 Kan. 292] was not involved in the discharge decision. Plaintiff's expert agreed that the nursing and professional staff of Applewood was not at any time in a position to decide that Ron needed to be committed.

Plaintiff became aware of Ron's violent tendencies after Ron attacked him in November 1989. On August 20, 1990, 10 days after Ron's discharge, plaintiff went out of town with Ron's father on business. Upon their return to the Hills' home, Ron's father invited plaintiff inside. Plaintiff was reluctant to enter because he knew Ron was back home and he wanted to avoid him. Despite his extreme reluctance, Ron's father persuaded him to enter. Ron visited with plaintiff awhile and left the room. Plaintiff became apprehensive and attempted to leave, but Ron's father insisted he stay, and a few minutes later, Ron returned with a shotgun and shot plaintiff.

Based on this incident, the State brought criminal charges against Ron for aggravated battery, and at trial a jury found him not guilty by reason of insanity. Plaintiff then brought a civil suit against numerous defendants, including CRMC and Dr. Cantwell. Plaintiff has settled with all defendants except Dr. Pol and Applewood.

Plaintiff asserted Dr. Pol and Applewood were negligent in releasing Ron. Additionally, plaintiff claimed the defendants had assumed care of a dangerous person and owed plaintiff a duty to warn of Ron's discharge and the dangers that created or, alternatively, to detain and commit Ron.

Following voluminous discovery, including at least a dozen depositions Dr. Pol and Applewood filed motions for summary judgment. The trial court granted the motions, and plaintiff has appealed. In ruling on the summary judgment motions, the trial court found the following facts and conclusions of law:

"1. This is a medical malpractice claim brought by plaintiff Darrell W. Boulanger, against Dr. Albert P. Pol [sic] and Applewood Care Center, Inc.

"2. Plaintiff Boulanger is the uncle of Ron Hill. Wilbur and Christine Hill are Ron's parents. The plaintiff was quite close to the Hills.

"3. Ron Hill, while a teenager, suffered a brain injury resulting from two separate motorcycle accidents and has had resulting physical and mental disabilities.

"4. In the middle-1980's, Ron Hill developed a delusion with respect to his uncle, plaintiff Darrell Boulanger, believing that he was Satan.

[258 Kan. 293] "5. Throughout the 1980's, plaintiff Boulanger and Ron Hill had occasional contact with no apparent difficulties in terms of physical acts, until November, 1989, when Ron Hill drove to his uncle's house and assaulted him.

"6. As a result of this altercation, Ron Hill was voluntarily hospitalized at Coffeyville Regional Medical Center under the care of Dr. Cantwell, formerly a defendant in this case.

"7. Ron Hill was subsequently dismissed to his home and was readmitted in early 1990 after making threats concerning his sister.

"8. Ron Hill was treated again at Coffeyville Regional Medical Center by Dr. Cantwell and again dismissed to his home. No statements or threats were made during this stay by Ron Hill against plaintiff.

"9. Subsequently, on March 31, 1990, Ron Hill had an altercation with his father, in which he physically assaulted the father and superficially cut his own chest with a knife.

"10. As a result of this, Ron Hill was hospitalized again at Coffeyville Regional Medical Center again under the care of Dr. Cantwell. Again, no threats were made by Ron against plaintiff.

"11. At the suggestion of Dr. Cantwell, Ron Hill was transferred to Applewood in April, 1990.

"12. Ron Hill was transferred to Applewood to allow him to be in a structured environment and to assist him with his

Page 827

activities of daily living so as to allow him to live independently.

"13. It was not intended that Ron Hill would receive psychotherapy...

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34 practice notes
  • Calwell v. Hassan, Nos. 72817
    • United States
    • Court of Appeals of Kansas
    • December 15, 1995
    ...may be predicated upon a therapist's failure to warn a victim or failure to detain based upon a special relationship. In Boulanger v. Pol, 258 Kan. 289, Syl. pp 1, 2, 900 P.2d 823 (1995), the Supreme Court reiterated its recognition of a cause of action for negligent release of an involunta......
  • Kuligoski v. Brattleboro Retreat, No. 14-396
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 16, 2016
    ...Commissioners , 289 Kan. 577, 214 P.3d 1173 (2009), which reinforced an earlier decision of the Kansas Supreme Court, Boulanger v. Pol , 258 Kan. 289, 900 P.2d 823 (1995), the court specifically rejected the Ohio Supreme Court's holding in Morgan . In Boulanger , the Kansas high court had c......
  • Adams v. Board of Sedgwick County Com'Rs, No. 99,195.
    • United States
    • United States State Supreme Court of Kansas
    • September 4, 2009
    ...next case to consider the relationship between a psychiatrist and those who were injured by a psychiatric patient. In Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995), a patient shot his uncle shortly after his release from an intermediate care facility where he had been a voluntary pati......
  • The EState Ray Belden v. Brown County, No. 104,246.
    • United States
    • Court of Appeals of Kansas
    • August 26, 2011
    ...§§ 314A, 316, 319 and 320 [1964] ); Jackson, 263 Kan. at 156–57, 947 P.2d 31 (applying Restatement [Second] § 320); Boulanger v. Pol, 258 Kan. 289, 303–08, 900 P.2d 823 (1995) (noting Restatement[46 Kan.App.2d 272] [Second] §§ 315–20 and applying § 315). The court also frequently draws on t......
  • Request a trial to view additional results
34 cases
  • Calwell v. Hassan, Nos. 72817
    • United States
    • Court of Appeals of Kansas
    • December 15, 1995
    ...may be predicated upon a therapist's failure to warn a victim or failure to detain based upon a special relationship. In Boulanger v. Pol, 258 Kan. 289, Syl. pp 1, 2, 900 P.2d 823 (1995), the Supreme Court reiterated its recognition of a cause of action for negligent release of an involunta......
  • Kuligoski v. Brattleboro Retreat, No. 14-396
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 16, 2016
    ...Commissioners , 289 Kan. 577, 214 P.3d 1173 (2009), which reinforced an earlier decision of the Kansas Supreme Court, Boulanger v. Pol , 258 Kan. 289, 900 P.2d 823 (1995), the court specifically rejected the Ohio Supreme Court's holding in Morgan . In Boulanger , the Kansas high court had c......
  • Adams v. Board of Sedgwick County Com'Rs, No. 99,195.
    • United States
    • United States State Supreme Court of Kansas
    • September 4, 2009
    ...next case to consider the relationship between a psychiatrist and those who were injured by a psychiatric patient. In Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995), a patient shot his uncle shortly after his release from an intermediate care facility where he had been a voluntary pati......
  • The EState Ray Belden v. Brown County, No. 104,246.
    • United States
    • Court of Appeals of Kansas
    • August 26, 2011
    ...§§ 314A, 316, 319 and 320 [1964] ); Jackson, 263 Kan. at 156–57, 947 P.2d 31 (applying Restatement [Second] § 320); Boulanger v. Pol, 258 Kan. 289, 303–08, 900 P.2d 823 (1995) (noting Restatement[46 Kan.App.2d 272] [Second] §§ 315–20 and applying § 315). The court also frequently draws on t......
  • Request a trial to view additional results

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