Bradley v. Ray

• Decision Date: 06 June 1995
• Docket Number: No. WD,WD
• Parties: Norma BRADLEY, as next friend of Kelly Pope, a minor, Appellant, v. Joel S. RAY, PhD, and Donna Strnad, defendant ad litem and legal representative of Bruce N. Strnad, deceased, individually and as partners of partnership d/b/a Columbia Psychological Associates, Respondents. 49952.
• Court: Missouri Court of Appeals

Page 302

904 S.W.2d 302

Norma BRADLEY, as next friend of Kelly Pope, a minor, Appellant, v. Joel S. RAY, PhD, and Donna Strnad, defendant ad litem and legal representative of Bruce N. Strnad, deceased,

individually and as partners of partnership d/b/a Columbia

Psychological Associates, Respondents.

No. WD 49952.

Missouri Court of Appeals,

Western District.

June 6, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 1, 1995.

Application to Transfer Denied

Sept. 19, 1995.

Danieal H. Miller, Columbia, for appellant.

Joseph H. Mueller, St. Louis, for respondents.

Before FENNER, C.J., P.J., and ELLIS and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Plaintiff-appellant, as next friend of Kelly Pope, a minor, appeals the trial court's dismissal of the petition against defendant Joel S. Ray, Ph.D. and of Donna Strnad, defendant ad litem for Bruce N. Strnad, Ph.D. Plaintiff contends the Petition states a claim against defendants on the grounds of: (1) aiding and abetting an intentional child abuse tort; (2) common law negligence for failing to warn appropriate officials of suspected child abuse of Kelly; (3) a private cause of action and negligence per se based on violation of the Child Abuse Reporting Act, section 210.115, RSMo 1994 ¹; and (4) prima facie tort. Plaintiff also appeals the trial court's appointment of Donna Strnad, the widow of defendant Dr. Strnad, as the defendant ad litem. For the reasons set forth below, the trial court's order dismissing plaintiff's claim for breach of a common law duty to warn is reversed. The trial court's dismissal of all remaining counts, as well as its appointment of Donna Strnad as defendant ad litem, are affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, as next friend of Kelly Pope, filed this civil cause of action seeking money damages for injuries Kelly allegedly sustained as a result of prolonged abuse by her stepfather Lester Pope. The Petition alleges that Kelly was abused by Mr. Pope from 1980, when she was four years old, until 1989. Specifically, the Petition alleges that Mr. Pope sexually abused and assaulted Kelly through:

forceful attempts at anal and vaginal intercourse, forced oral sex by and upon her, sodomy, masturbation and ejaculation upon Kelly Pope and into her mouth, fondling and caressing of her to climax, single and multiple digital penetration of her vagina and rectum, forced insertion and use of a vibrator in her vagina, taking nude and sexually explicit photographs of her alone and with other children, and other acts of like nature....

Kelly's mother, Nancy Kopin, became aware of the abuse and allegedly arranged to have Dr. Joel S. Ray and Dr. Bruce N. Strnad render psychiatric services to Mr. Pope. Drs. Ray and Strnad were licensed psychologists with a private practice in Columbia, Missouri. Drs. Ray and Strnad began counseling Mr. Pope in 1988 for the abuse of Kelly, but shortly thereafter terminated the counseling.

The Petition alleges that Drs. Ray and Strnad were aware that Mr. Pope was abusing Kelly, but failed to report it to any law enforcement authorities during the counseling and upon termination of their services as required by the Child Abuse Reporting Act, section 210.115. This Act provides, in pertinent part, that:

When any ... psychologist, ... has reasonable cause to suspect that a child has been or may be subjected to abuse or neglect or observes a child being subjected to conditions or circumstances which would reasonably result in abuse or neglect, that person shall immediately report or cause a report to be made to the division....

§ 210.115. Plaintiff contends that Kelly continued to be abused by Mr. Pope as a result of defendants' failure to report the abuse.

This appeal involves the dismissal of plaintiff's cause of action against Dr. Ray and Donna Strnad, the defendant ad litem of Dr. Strnad. ² The Petition specifically alleged claims against Drs. Ray and Strnad under Count I for aiding and abetting an intentional child abuse tort, under Count III for negligent breach of common law duty to warn of abuse, under Count IV for a private cause of action and negligence per se based on the Child Abuse Reporting statute, section 210.115, and under Count V for prima facie tort.

Dr. Ray and defendant ad litem Donna Strnad filed motions to dismiss for failure to state a claim upon which relief can be granted. These motions were predicated on the absence of any duty owed to Kelly based on either section 210.115 or the common law. The motions were granted and the actions against Drs. Ray and Strnad were dismissed. Plaintiff appeals the order of dismissal.

Plaintiff also appeals the trial court's appointment of Donna Strnad, Dr. Strnad's widow, as defendant ad litem, contending the appointment was unduly prejudicial because it would raise undue sympathy for Dr. Strnad.

II. BREACH OF COMMON LAW DUTY TO WARN OF SUSPECTED CHILD ABUSE

We first address the propriety of dismissal of plaintiff's claim against defendants in Count III for negligent breach of a common law duty to warn appropriate authorities of known or suspected abuse of Kelly by her step-father. ³ A Petition seeking damages for actionable negligence must allege ultimate facts which, if proven, show the "(1) existence of a duty on the part of the defendant to protect plaintiff from injury, (2) failure of the defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure." Nappier v. Kincade, 666 S.W.2d 858, 860 (Mo.App.1984).

Whether a duty exists under the facts alleged in plaintiff's Petition is an issue of first impression in Missouri, but it has been addressed in a large number of other jurisdictions. Plaintiff requests this Court to join the vast majority of other courts to address this issue, and hold that when a psychologist or other professional knows or pursuant to the standards of the profession should have known that a patient presents a serious danger of violence to a readily identifiable victim, the psychologist has a common law duty to take such protective actions as may be reasonable under the circumstances to warn the intended victim or to communicate the existence of such danger to those likely to warn the victim, which may include notifying appropriate law enforcement authorities.

A. Recognition of a Duty to Warn in Tarasoff v. Regents of the University of California.

The seminal case imposing a duty to warn under facts similar to those alleged in plaintiff's Petition is Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976). In that case, the plaintiff was killed by a patient of the defendant therapist two months after the patient confided his intention to kill plaintiff to the therapist. No one warned the plaintiff of the patient's intention to kill her. The issue before the court was whether the therapist, after determining that his patient posed a serious threat of violence, had a duty to warn the foreseeable victim of that danger. Id., 131 Cal.Rptr. at 20, 551 P.2d at 340.

The court held that a duty to warn did exist under California common law, stating:

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.

In reaching this holding, Tarasoff stated that the most important factor in establishing a duty is foreseeability, for a "defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous." Id. at 22, 551 P.2d at 342 (citations omitted). The court then stated that, while the general rule is that liability will not be imposed where the avoidance of foreseeable harm requires the defendant to control the conduct of another person, there is an exception to this rule when the parties are in a "special relationship." Id. at 24, 551 P.2d at 344. The "special relationship" exception is stated in Restatement (Second) of Torts § 315, and applies to impose a duty to act when "the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct." Tarasoff, 131 Cal.Rptr. at 23, 551 P.2d at 343 (emphasis added). ⁴

Tarasoff found that, while there was no special relationship between plaintiff and the therapist, the special relationship between the patient and the therapist was sufficient to "support affirmative duties for the benefit of third persons." Id. In so holding, the court reasoned 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." Id. at 24, 551 P.2d at 344 (citations omitted).

In Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728 (1980), the court clarified Tarasoff by explaining that the duty recognized therein does not apply to the general public, but only arises when the intended victim is "foreseeable" and "readily identifiable." Id. at 76, 614 P.2d at 734. Thus, no affirmative duty to warn exists when a patient has made "nonspecific threats of harm directed at nonspecific victims." Id. at 77, 614 P.2d at 735.

B. A Majority of Jurisdictions Which Have Considered the Issue Have Imposed a Similar Duty.

Tarasoff has been "widely accepted (and rarely rejected) by c...