Boynton v. Burglass

• Decision Date: 24 September 1991
• Docket Number: No. 89-1409,89-1409
• Citation: 590 So.2d 446
• Parties: Wayne BOYNTON, Sr., individually, as father and next best friend of Wayne Boynton, Jr., deceased, and as personal representative and survivor of the Estate of Wayne Boynton, Jr., and Dorothy Boynton, individually, as mother, next best friend, and survivor of the Estate of Wayne Boynton, Jr., Appellants, v. Milton BURGLASS, M.D., and Milton Burglass, M.D., P.A., Appellees. 590 So.2d 446, 16 Fla. L. Week. D2499, 17 Fla. L. Week. D111
• Court: Florida District Court of Appeals

Page 446

590 So.2d 446

Wayne BOYNTON, Sr., individually, as father and next best friend of Wayne Boynton, Jr., deceased, and as personal representative and survivor of the Estate of Wayne Boynton Jr., and Dorothy Boynton, individually, as mother, next best friend, and survivor of the Estate of Wayne Boynton Jr., Appellants, v. Milton BURGLASS, M.D., and Milton Burglass, M.D., P.A. Appellees.

No. 89-1409.

590 So.2d 446, 16 Fla. L. Week. D2499, 17 Fla. L. Week. D111

District Court of Appeal of Florida Third District.

Sept. 24, 1991.

As Amended on Grant in Part of Motion for Rehearing or

Certification

Dec. 24, 1991.

Friedman & Friedman, P.A., and John S. Seligman, Coral Gables, for appellants.

Simon, Schindler & Sandberg, P.A., and Neil Rose, Miami, for appellees.

Scott Mager, Miami, for Academy of Florida Trial Lawyers, as amicus curiae.

John Hedrick, Asst. General Counsel, Tallahassee, for the Florida Dept. of Health and Rehabilitative Services, as amicus curiae.

Mathews, Osborne, McNatt & Cobb and Jack W. Shaw, Jacksonville, for Florida Defense Lawyers Ass'n, as amicus curiae.

Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, FERGUSON, JORGENSON, COPE, LEVY, GERSTEN and GODERICH, JJ.

ON REHEARING EN BANC

JORGENSON, Judge.

By this appeal we are asked to adopt the rule announced by the California Supreme Court in Tarasoff v. Regents of University of California ¹ and hold that a psychiatrist who allegedly "knows, or should know," that a patient of his presents a serious threat of violence to a third party has a duty to warn the intended victim. Because this case is of great public importance, the court, on its own motion, granted rehearing en banc. For the reasons which follow, we decline to recognize such a duty and affirm the order of the trial court dismissing plaintiffs' complaint with prejudice for failure to state a cause of action. ²

On May 13, 1986, Lawrence Blaylock shot and killed Wayne Boynton, Jr. ³ Blaylock had been an outpatient of psychiatrist Milton Burglass, M.D. Boynton's parents sued Dr. Burglass for malpractice. The complaint alleged that Dr. Burglass failed to hospitalize Blaylock, failed to warn Boynton, Boynton's family, or the police that Blaylock was violence-prone and had threatened serious harm to Boynton, and failed to prescribe the proper medications for Blaylock. ⁴ Because Dr. Burglass refused to release his patient's medical records to the plaintiffs, the complaint did not contain allegations of specific threats made by Blaylock against the victim. Instead, plaintiffs alleged simply that the psychiatrist "knew, or in the exercise of reasonable due care, should have known that prior to May 13, 1986, Lawrence Blaylock, Jr. had threatened serious harm to a specific victim, to wit: Wayne Boynton, Jr." ⁵ The complaint further alleged that, as a direct and proximate consequence of the psychiatrist's negligence, Blaylock shot and killed Boynton.

Dr. Burglass moved to dismiss the complaint for failure to state a claim for relief. The trial court granted the motion with prejudice; we affirm.

This is a case of first impression in Florida. Although other jurisdictions ⁶ have followed the lead of the California Supreme Court in the landmark decision of Tarasoff v. Regents of Univ. of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976), we reject that "enlightened" approach. ⁷

Florida courts have long been loathe to impose liability based on a defendant's failure to control the conduct of a third party. See, e.g., Bankston v. Brennan, 507 So.2d 1385 (Fla.1987) (social host not liable for serving alcoholic beverages to individual who then injures another); Paddock v. Chacko, 522 So.2d 410 (Fla. 5th DCA 1988) (psychiatrist had no duty to forcibly detain patient who later attempted to commit suicide); Vic Potamkin Chevrolet, Inc. v. Horne, 505 So.2d 560 (Fla. 3d DCA 1987) (automobile dealer not liable for buyer's negligent driving once ownership of automobile transferred to buyer), approved, 533 So.2d 261 (Fla.1988). When the duty sought to be imposed is dependent upon standards of the psychiatric profession, we are asked to embark upon a journey that "will take us from the world of reality into the wonderland of clairvoyance." Tarasoff, 551 P.2d at 354, 131 Cal.Rptr. at 34 (Mosk, J., concurring and dissenting). Psychiatry "represents the penultimate grey area ... particularly with regard to issues of foreseeability and predictability of future dangerousness." Lindabury v. Lindabury, 552 So.2d 1117, 1118 (Fla. 3d DCA 1989) (Jorgenson, J., dissenting) (citations omitted); Fischer v. Metcalf, 543 So.2d 785, 787 n. 1 (Fla. 3d DCA 1989) ("Unlike other branches of medicine in which diagnoses and treatments evolve from objective, empirical, methodological foundations, 'psychiatry is at best an inexact science, if, indeed, it is a science....' ") (citations omitted). It is against the backdrop of this uncertain and inexact science that we address the legal issues presented by this appeal.

I. The Duty to Warn

Plaintiffs contend that Dr. Burglass had a duty, under the common law, to warn Boynton (or the police, or Boynton's family) that Blaylock intended to harm him. In our view, imposing on psychiatrists ⁸ the duty that plaintiffs urge is neither reasonable nor workable and is potentially fatal to effective patient-therapist relationships.

Under the common law, a person had no duty to control the conduct of another or to warn those placed in danger by such conduct; however, an exception to that general rule can arise when there is a special relationship between the defendant and the person whose behavior needs to be controlled or the person who is a foreseeable victim of that conduct. See Fischer v. Metcalf, 543 So.2d 785, 787 n. 1 (Fla. 3d DCA 1989); Department of Health & Rehab. Servs. v. Whaley, 531 So.2d 723 (Fla. 4th DCA 1988); Garrison Retirement Home Corp. v. Hancock, 484 So.2d 1257 (Fla. 4th DCA 1985); see also Rest.2d Torts Secs. 314-320. Implicit in the creation of that exception, however, is the recognition that the person on whom the duty is to be imposed has the ability or the right to control the third party's behavior. Restatement Secs. 316-319. "Thus, in the absence of a relationship involving such control, the exception to the general rule, that there is no duty to control the conduct of a third party for the protection of others, should not be applicable." Hasenei v. United States, 541 F.Supp. 999, 1009 (D.Md.1982) (psychiatrist who had no right or ability to control voluntary outpatient's behavior could not be held liable for failure to warn patient's victim, especially where psychiatrist unable to predict identifiable danger posed by patient to any person). In Tarasoff, the California Supreme Court characterized the relationship between the psychiatrist and the patient or the intended victim of the patient by stating that "[t]here now seems to be sufficient authority to support the conclusion that by entering into a doctor-patient relationship the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the patient." Tarasoff, 131 Cal.Rptr. at 24, 551 P.2d at 344, citing Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma, 62 Cal.L.Rev. 1025, 1030 (1974). The Tarasoff court did not address the issue of the psychiatrist's control over the patient but simply opined that "[s]uch a relationship may support affirmative duties for the benefit of third persons." 131 Cal.Rptr. at 23, 551 P.2d at 343.

In this case, Blaylock was a voluntary psychiatric outpatient treated by Dr. Burglass. A federal court has described the relationship between a psychiatrist and a voluntary outpatient as lacking "sufficient elements of control necessary to bring such relationship within the rule of Sec. 315." Hasenei, 541 F.Supp. at 1009. We agree. "Once the suggestion of control is eliminated, there is nothing in the nature of the relationship between a psychiatrist and his patient to support an exception to the tort law presumption." Stone, The Tarasoff Decisions: Suing Psychotherapists to Safeguard Society, 90 Harv.L.Rev. 358, 366 (1976). The complaint nowhere alleges that Dr. Burglass had either the right or the ability to control Blaylock's behavior. Dr. Burglass, therefore, cannot be charged with the duty to control. Compare Nova Univ., Inc. v. Wagner, 491 So.2d 1116 (Fla.1986) (where institution that housed and rehabilitated children with behavioral and emotional problems had taken charge of persons likely to harm others, institution had duty to exercise reasonable care to avoid foreseeable attacks by its charges upon third persons). ⁹

The nature of the relationship between Dr. Burglass and the victim does not become any less tenuous or give rise to a more definable duty by attempting to transform the duty to control Blaylock's behavior into a duty to warn Boynton or others about Blaylock's behavior or to otherwise protect them. "The duty to warn is an expression of humanitarianism and the spirit of the Good Samaritan...." Currie v. United States, 836 F.2d 209, 213 (4th Cir.1987). The creation, by process of law, of such a duty would be no more than a recognition that "[o]ur current crowded and computerized society compels the interdependence of its members. In this risk-infested society we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal." Tarasoff, 131 Cal.Rptr. at 27, 551 P.2d at 347. By imposing such duties, courts recognize the responsibilities inherent in social living and human relations. McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500, 507 (1979). However, imposition of such a duty must be reasonable, and must give the parties on whom the duty is imposed fair notice of what is required of them. We...