Chrite v. United States

• Decision Date: 26 May 1983
• Docket Number: Civ. No. 81-73844.
• Citation: 564 F. Supp. 341
• Parties: Warner CHRITE, Personal Representative of the Estate of Catherine Chrite, deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Michigan

564 F. Supp. 341

Warner CHRITE, Personal Representative of the Estate of Catherine Chrite, deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 81-73844.

United States District Court, E.D. Michigan, S.D.

May 26, 1983.

Jeffrey N. Shillman, Southfield, Mich., for plaintiff.

Geneva Halliday, Asst. U.S. Atty., Detroit, Mich., for defendant.

MEMORANDUM AND ORDER

COHN, District Judge.

I.

Plaintiff brings this case under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., for damages occasioned by the negligence of a Veterans Administration hospital in releasing a mental patient at the hospital by the name of Henry Oswald Smith (Smith) who six months later murdered his mother-in-law, Catherine Chrite (Chrite).

The FTCA makes the United States liable "... in the same manner and to the same extent as a private individual under like circumstances ..." 28 U.S.C. § 2674. Section 2674 lists the particular violations for which the government has consented to be sued. The government's consent to be sued is limited by the discretionary exemption, 28 U.S.C. § 2680(a), which reads:

"The provisions of this chapter ... shall not apply to —

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."

The United States has moved for summary judgment on the grounds: (1) the exemption in 28 U.S.C. § 2680(a) for discretionary functions bars plaintiff's claim; (2) there was no duty to restrain Smith beyond the period provided by Michigan law; and (3) there was no duty to warn Chrite of the dangerous propensities of Smith.

A hearing was held on March 1, 1983. On March 3, 1983, the Court entered an order denying summary judgment on the discretionary function ground¹ and took the remainder of the motion under advisement.

II.

Under Michigan's Mental Health Code, Mich.Stat.Ann. § 14.800(1) et seq., M.C. L.A. § 330.1001 et seq., the initial period of commitment is usually sixty days. See, M.S.A. §§ 14.800(472)(1), M.C.L.A. § 330.1472(1).² In fact, a hospital may be liable if it holds a person beyond the sixty day commitment order and it is later determined the individual was not a "person requiring treatment" (PRT). Matter of Wagstaff, 93 Mich.App. 755, 287 N.W.2d 339 (1979). Once the determination is made that the person committed is no longer a PRT, the hospital must seek a judicial order to restrain the patient beyond the sixty days of the original commitment. See, M.S.A. § 14.800(472)(2); § 14.800(472)(3) M.C.L.A. §§ 330.1472(2), 330.1472(3).

III.

The Michigan Supreme Court has not ruled whether, under the factual circumstances alleged in this case, there is a duty to restrain an individual beyond a sixty day commitment order or a duty to warn third persons of an individual's dangerous propensities when he or she is released from a mental institution.

"The State's highest court is the best authority on its own law. If there be no decision by that court, then federal authority must apply what they find to be the state law after giving `proper regard' to relevant rulings of other courts of the state. In this respect, it may be said to be, in effect, sitting as a state court."

Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). While the "lower courts" should be "attributed some weight ... the decision is not controlling". Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967), citing King v. Order of Travelers, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608 (1948).

"An intermediate appellate state court ... is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of a state would decide otherwise."

Estate of Bosch, supra, 387 U.S. at 465, 87 S.Ct. at 1782 citing West v. A.T. & T. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). The federal court may not be bound even by an intermediate state appellate court ruling. Estate of Bosch, supra 387 U.S. at 465, 87 S.Ct. at 1782. To give plenary consideration to a state law claim, an educated guess must be made as to what the state's highest court would decide. Ann Arbor Trust Company v. North American Company For Life and Health Insurance, 527 F.2d 526, 527 (6th Cir.1975), cert. denied, 425 U.S. 993, 96 S.Ct. 2206, 48 L.Ed.2d 818 (1976). Here the Court must determine whether the Michigan Supreme Court would hold defendant had a duty to restrain Smith beyond the sixty day commitment order or a duty to warn Chrite of Smith's dangerous propensities.

IV.

A.

There was no statutory obligation to keep Smith in custody beyond the sixty day order because it was determined that he was no longer a PRT. The most that defendant was obligated to do or could do under Michigan law was to seek an extension of the commitment order if it found Smith to be a PRT. It would then be up to a jury to decide whether or not to extend custody. See M.S.A. § 14.800(458) M.C. L.A. § 330.1458. Therefore, there appears to be no cause of action for failure to restrain Smith as such.

B.

There is a difference between warning third persons of an individual's dangerous propensities and keeping a patient in custody. Although the Michigan Supreme Court has not directly addressed the question whether there is a common law duty to warn third persons when an individual is released from a mental institution,³ there is analogous case law in Michigan and in other states to support the proposition.

The leading case establishing a duty to warn a third person when a doctor believes the patient is potentially harmful to that third person is Tarasoff v. Regents of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (Cal.1976). In Tarasoff, the patient killed a woman two months after he had confided to his psychotherapist his intention to kill her. The Supreme Court of California noted that liability attaches only when a duty is owed based on some special relationship to the dangerous person or to the potential victim. The psychotherapist-patient relationship satisfied this requirement. The court held plaintiff stated a cause of action by asserting the psychotherapist determined the patient was a threat to the victim or, pursuant to the standards of the medical profession should have so determined, but failed to exercise reasonable care to protect her from that danger.

More recently in Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728 (1980), the Supreme Court of California emphasized that Tarasoff involved a foreseeable and identifiable victim. While the court held the intended victim need not be specifically named, the victim must be "readily identifiable".

In Davis v. Dr. Yong-Oh Lhim, 124 Mich. App. 291, 335 N.W.2d 481, Docket No. 59284 (March 21, 1983), the Michigan Court of Appeals adopted the reasoning of Tarasoff and Thompson.⁴ The defendant, a staff psychiatrist at Northville State Hospital, released a patient who two months later killed his mother. The court, relying on Tarasoff, held that the psychiatrist had a duty to warn the decedent of the patient's dangerous propensities. Although the court stated that psychiatrists do not have a duty to the public at large,⁵ the court did recognize a duty to "readily identifiable" victims.

"We agree with Thompson, therefore, that a psychiatrists' duty to exercise reasonable care in protecting others foreseeably endangered by his patient extends only to potential victims who are `readily identifiable'.

... when a psychiatrist determines, or pursuant to the standard of care of his profession should determine, that his patient poses a serious danger of violence to a readily identifiable person, the psychiatrist has a duty to use reasonable care to protect that individual against such danger."⁶

Davis, supra, slip op. at 10.

Davis relies on Knight v. State of Michigan, 99 Mich.App. 226, 297 N.W.2d 889 (1980), to support its conclusion. In Knight, the court recognized that there was a duty on the part of the Michigan Department of Mental Health to warn third persons of a mental patient's known propensity to set fires. When the patient was placed on plaintiffs' farm as a therapeutic measure no disclosure was made regarding his firesetting propensities. The patient subsequently set several fires, one of which destroyed the entire contents of plaintiffs' barn. In recognizing the existence of a duty between the hospital and the plaintiffs the court relied on Restatement (Second) of Torts § 319:

"One who takes charge of a person having known propensities for danger is under a duty to exercise reasonable care to control the third person and prevent him from harming others."

Therefore, the court held the department had a duty of reasonable care to inform third persons of any limitations or destructive tendencies which were known or which became known to the hospital subsequent to the time of the patient's placement on the farm.⁷

Based on the foregoing analysis it appears that the Michigan Supreme Court would hold that defendant could be liable for failing to warn Chrite of Smith's dangerous propensities when he was released from custody.

V.

Defendant also argues that there is no allegation that Chrite was a target victim. However, it can be argued that she was readily identifiable or a target since on January 22, 1980, the date commitment was recommended by the Veterans Administration doctor, a note was written presumably in Smith's own hand which reads:

"Was Henry O. Smith Here Yesterday. He is wanted for murder Mother in Law."⁸

This written statement is similar to the evidence...