Dunkle v. Food Service East Inc.

• Decision Date: 03 December 1990
• Citation: 582 A.2d 1342,400 Pa.Super. 58
• Parties: Steven L. DUNKLE, Administrator of the Estate of Senie Dunkle Eyer, A/K/A Senie Eyer, Deceased and Steve L. Dunkle, Administrator of the Estate of Senie Dunkle Eyer, Deceased, on Behalf of Byran Eugene Eyer and Todd Travis Eyer, Minors v. FOOD SERVICE EAST INC., et al. v. Bruce TINDAL, the Pennsylvania State University, et al., Keith A. Berfield, Rubin J. Echemendia and William Hylbert. Appeal of FOOD SERVICE EAST, INC; Food Service East, Inc. T/D/B/A the Cannery Store; the Cannery Store; Dennis James Hull; Richard Paul Whitman and Anthony Robert Castellano.
• Court: Pennsylvania Superior Court

Page 1342

582 A.2d 1342

400 Pa.Super. 58

Steven L. DUNKLE, Administrator of the Estate of Senie

Dunkle Eyer, A/K/A Senie Eyer, Deceased and Steve L. Dunkle, Administrator of the Estate of Senie Dunkle Eyer, Deceased, on Behalf of Byran Eugene Eyer and Todd Travis Eyer, Minors v. FOOD SERVICE EAST INC., et al. v. Bruce TINDAL, the Pennsylvania State University, et al., Keith A. Berfield, Rubin J. Echemendia and William

Hylbert.

Appeal of FOOD SERVICE EAST, INC; Food Service East, Inc.

T/D/B/A the Cannery Store; the Cannery Store;

Dennis James Hull; Richard Paul Whitman

and Anthony Robert Castellano.

Superior Court of Pennsylvania.

Argued Oct. 11, 1990.

Filed Dec. 3, 1990.

Paul M. Puskar, Pittsburgh, for appellant.

Henry A. Goodall, Jr., State College, for Tindal, appellee.

James M. Horne, State College, for Pa. State, appellee.

Jerome E. Ornsteen, Philadelphia, for Hylbert, appellee.

R. Bruce Morrison, Norristown, for Berfield, appellee.

Before POPOVICH, HUDOCK and MONTGOMERY, JJ.

POPOVICH, Judge.

This controversial appeal involves the strangulation death of Senie Eyer. What began as a simple action in negligence against the store where Eyer was attacked has now escalated into an attempt to hold the perpetrator's treating psychologist, counselor and doctor liable in damages for failing to warn the victim of their patient's propensity towards violence. Our duty is to consider whether the trial court properly determined that the above additional defendants owed no legal duty to protect the plaintiffs' decedent from their patient's hostility.

We are cognizant of the extreme importance of this complex issue, as well as the public interest in its resolution. Indeed, whether a psychologist or other health professional owes a duty to one other than his patient, and, if so, under what circumstances, has been a question largely unexplored in our legal precedent. Nevertheless, the appeal before us is from the orders entered in the Court of Common of Pleas of Centre County granting summary judgment in favor of the additional defendants, and thus our function is limited to specific determinations. ¹ Since we find that no evidence was presented to create a genuine issue of fact as to the claims asserted against the additional defendants in this case, we must affirm the orders of the trial court.

This Court recently reiterated the correct standard of review when considering an appeal from the grant of a motion for summary judgment. In Vargo v. Hunt, --- Pa.Super. ---, 581 A.2d 625 (1990), we stated

A determination of whether the grant or denial of a motion for summary judgment is to be upheld requires an appellate court to decide whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970, 971 (1989); see also Chiricos v. Forest Lake Council Boy Scouts of America, Pa.Super. , 571 A.2d 474, 475 (1990). In making such a finding, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Furthermore, we shall not disturb the trial court's ruling unless there has been an error of law or a manifest abuse of discretion. Overly v. Kass, supra.

Id. See also Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986) ("[t]o determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. [....] Summary Judgment is appropriate only in those cases which are clear and free from doubt."); Pa.R.C.P. 1035.

With these standards in mind, we will briefly set forth the facts and procedural history of this case, as well as the issue on appeal. On March 6, 1987, the plaintiff Steve Dunkle, administrator of the estate of Senie Eyer, instituted an action for damages against the original defendants (hereinafter "the Cannery"). The plaintiffs ² alleged that the defendants were negligent in failing to maintain a safe place for business and in failing to stop Bruce Tindal from fatally choking Senie Eyer upon their premises. Eyer, Tindal's live-in girlfriend, died one week after the attack.

Prior to this incident, Tindal had been receiving psychiatric care from Dr. Hylbert. Hylbert had diagnosed Tindal as having schizophreniform disorder. At that time, Tindal was taking medication called Navane to treat his illness. In December, 1983, Hylbert instructed Tindal to discontinue regular use of the drug. After he stopped taking his medication, Tindal's behavior became "nasty" and "violent." See Appellants' brief, at 4; Appellee Hylbert's brief, at 6. As a result, Hylbert re-prescribed the Navane. As both the appellant (the Cannery) and the appellees acknowledge, "[t]here is nothing in the record to indicate that Tindal expressed any specific tendencies vis-a-vis Eyer." Id. In December, 1984, Hylbert discharged Tindal and discontinued his medication, instructing him to take Navane on an as-needed basis. Tindal was still under treatment by Keith A. Berfield, a counselor at The Pennsylvania State University.

In March, 1985, Tindal confessed to the Penn State police that he had been stealing property. The police contacted Berfield, who neither confirmed nor denied his association with Tindal. The following day, Tindal and Eyer went to the Cannery to shop. At that location, Tindal and Eyer entered the men's room and Tindal strangled Eyer, believing her to be a Russian agent.

In June, 1987, the original defendants filed a writ of summons joining the additional defendants. Thereafter, a complaint was filed against the additional defendants. Except for Hylbert and Tindal, the additional defendants filed preliminary objections, contending that the original defendants failed to state a claim upon which relief could be granted. The trial court dismissed the preliminary objections pending Tindal's deposition. The trial court stated that discovery should be effectuated before it would render a decision regarding the legal issues raised in the preceding pleadings. In particular, the trial court found that it was necessary to depose Tindal before it could determine whether Eyer was a "readily identifiable" victim of Tindal's attack. Trial court opinion, March 31, 1989. An amended complaint to join was filed subsequently. Answers were timely filed. Ultimately, discovery was completed.

In the final months of 1989, all of the additional defendants filed their respective motions for summary judgment. Specifically, the additional defendants alleged that they owed no duty to the decedent and hence, could not be held liable for her ensuing death. ³ On January 18, 1990, the trial court granted the various motions and dismissed the original defendants' complaint to join. This appeal followed.

The Cannery raises one issue for our review: Did the additional defendants owe a duty to the plaintiffs' decedent? In its summary of the argument, the Cannery asserts the following:

The trial Court erred in two respects. First, it held that a duty of a physician to a third-party, non-patient did not exist in this Commonwealth as set forth in Tarasoff v. Regents of University of California, 17 Cal.3d 425 [131 Cal.Rptr. 14], 551 P.2d 334 (1976) and adopted by this Court in Coath v. Jones, 277 Pa.Super. 479, 419 A.2d 1249 (1980). In addition, it made an error in deciding that the case in DiMarco v. Lynch Homes--Chester County, Pa.Super. , 559 A.2d 530 (1989), was not dispositive of the issues raised by this case.

Appellants' brief, at 6. We have read the record in this case. In addition, we have extensively and thoroughly researched the issue raised by the Cannery. After careful consideration, we find that the trial court properly granted summary judgment in favor of the additional defendants.

The trial court correctly concluded that the additional defendants did not owe the plaintiffs' decedent any duty at law to protect her from Tindal's violent act. Although our research has failed to provide us with Pennsylvania caselaw that is directly on point, other jurisdictions have confronted analogous issues.

In Tarasoff v. Regents of University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976), the California Supreme Court was faced with the question of whether a cause of action could exist for a psychologist's failure to warn a third party of his patient's dangerous propensities. The court concluded that in certain, very limited circumstances, the public's interest in safety must take precedence over the patient's interest in confidentiality and therefore, a psychologist may have a duty to protect identifiable, foreseeable victims from a patient's threats of violence. Id. at 439-40, 551 P.2d at 346, 131 Cal.Rptr. at 26. See also id. at 430-31, 551 P.2d at 340, 131 Cal.Rptr. at 20. Notably, in Tarasoff, the patient actually confided to his psychologist his intent to commit violent acts against a specified target, Tatiana Tarasoff, before he in fact killed her. The court stated that

[a]lthough ..., under the common law, as a general rule, one person owed no duty to control the conduct of another ..., nor to warn those endangered by such conduct ..., the courts have carved out an exception to this rule in cases in which 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....

Id. at 435, 551 P.2d at 343, 131 Cal.Rptr. at 23. See also id. at 436-38, 551 P.2d at 344-46, 131 Cal.Rptr. at 24-26 (accord). See Thompson v. County of Alameda, 27 Cal.3d 741, 749-56, 614 P.2d 728, 732-36, 167 Cal.Rptr. 70, 74-78 (1980) (accord). See Sellers v. U.S., 870 F.2d 1098, 1102-03 (6th Cir.1989) (accord).

In the instant case, it is apparent that...