Erpelding v. Lisek

• Decision Date: 27 June 2003
• Docket Number: No. 02-67.,02-67.
• Citation: 71 P.3d 754,2003 WY 80
• Parties: Christopher ERPELDING, Appellant (Plaintiff), v. Victor LISEK and Victor Lisek, P.C., Appellee (Defendants).
• Court: Wyoming Supreme Court

71 P.3d 754

2003 WY 80

Christopher ERPELDING, Appellant (Plaintiff), v. Victor LISEK and Victor Lisek, P.C., Appellee (Defendants).

No. 02-67.

Supreme Court of Wyoming.

June 27, 2003.

Bernard Q. Phelan, Cheyenne, Wyoming, Representing Appellant.

John A. Coppede and Andrea L. Richard of Rothgerber, Johnson & Lyons, LLP, Cheyenne, Wyoming, Representing Appellee. Argument by Ms. Richard.

Before HILL, C.J., and LEHMAN, KITE, and VOIGT, JJ., and SANDERSON, D.J.

SANDERSON, D.J.

[¶ 1] Appellant, Christopher Erpelding (Erpelding), has appealed from a summary judgment in favor of Appellee Victor Lisek, individually, and Victor Lisek, P.C. (Lisek). The district court found there was no genuine issue of material fact as to whether Lisek breached a duty of care owed to Erpelding, and that the statute of limitations had expired. We hold that the district court correctly concluded that Lisek breached no duty of care owed to Erpelding and affirm.

ISSUES

[¶ 2] Erpelding presents the following issues for our review:

A. Where an employee is referred to a counselor because "everyone has problems" and the counselor prescribes treatment, is there sufficient evidence of a relationship upon which a duty of care may be imposed?

B. Was the statute of limitations met?

[¶ 3] Lisek frames the issues as follows:

I. Whether [Erpelding's] causes of action for alleged professional negligence were barred by the two-year statute of limitations for the rendering of licensed professional services where [he] knew or should have known of the alleged act, error or omission nearly four (4) years before he filed his complaint?

II. Whether [Lisek] owed a duty to [Erpelding] in performing an independent mental evaluation of [him], other than to avoid causing an injury to him during the course of the evaluation itself, where [Lisek] neither counseled nor treated [Erpelding], but only evaluated [him] at the request of his employer?

FACTS

[¶ 4] The Wyoming Department of Transportation (WYDOT) employed Erpelding from 1991 to May of 1998. His tenure with WYDOT was punctuated by combative arguments and confrontations with co-workers, supervisors, and contractors working for WYDOT. As a result, Erpelding received written warnings and reprimands from his supervisors.

[¶ 5] Erpelding's supervisors sent him to Lisek, a licensed psychological counselor, to obtain an assessment of Erpelding's psychological condition and recommendations as to what the employer could do to alleviate the problems at the workplace. In all, Erpelding met with Lisek on three occasions beginning in August of 1997. At the beginning of each of these meetings Erpelding signed a "Permission for Release of Confidential Information" so that any information obtained by Lisek and any records or reports generated by him would be provided to WYDOT. After each visit, Lisek sent a report to Mr. Dover, which gave his assessment of Erpelding. Following the first visit, Lisek recommended that Erpelding receive psychological counseling and that WYDOT make a "change in work environment." Lisek's recommendation was based on interviews and psychological tests known as the Minnesota Multiaxial Inventory. As a result, Erpelding went to the Veterans Administration in Sheridan for psychological counseling.

[¶ 6] Erpelding continued to have confrontations with his co-workers. In April of 1998, Erpelding's immediate supervisor again sent him to Lisek for the second assessment and Lisek sent a report of the second evaluation to WYDOT. Lisek's report characterized Erpelding's personality patterns as outside of "societal and acceptable performance norms" which would cause him to continue to have difficulties in getting along with his coworkers and supervisors. Lisek recommended that WYDOT place Erpelding in a highly structured and highly restricted work environment which would minimize his interaction with co-workers. In June of 1998, WYDOT terminated Erpelding citing his disruptive, hostile and combative behavior in the workplace and claiming that there were no available assignments "which were highly restrictive, highly structured and in a setting where the duties assigned would not require consistent interaction with his co-workers."

[¶ 7] Erpelding successfully appealed his dismissal because WYDOT's rules did not permit WYDOT to utilize the opinion of licensed professional counselors in determining whether an employee was medically ineligible for employment. He was reinstated to his employment in May of 1999.

[¶ 8] WYDOT sent Erpelding to Lisek for a third assessment in June of 1999. WYDOT had, in the interim, changed its personnel rules to allow licensed professional counselors to conduct examinations and make recommendations to WYDOT. Erpelding objected to going to Lisek again, but ultimately relented and attended. Following Lisek's third report, Erpelding was again dismissed on June 30, 1999. Another appeal followed and the hearing examiner again reversed WYDOT's decision to dismiss Erpelding, and WYDOT appealed. While the appeal was pending, Erpelding sued WYDOT alleging his dismissal violated the Americans With Disabilities Act. WYDOT settled, resulting in a monetary settlement and dismissal of Erpelding's suit against WYDOT and WYDOT's appeal.

[¶ 9] Erpelding then focused his attention on Lisek and brought a malpractice suit against him on March 7, 2001. Following discovery, Lisek moved for summary judgment on the basis that Erpelding's claims were time barred by the statute of limitations and because there was no counselor/patient relationship between the two. Concluding there was no counselor/patient relationship between them and therefore no duty owed to Erpelding as a matter of law, and that the claims were barred under the two-year statute of limitations, the district court granted summary judgment to Lisek.

DISCUSSION

A. Standard of Review

[1, 2] [¶ 10] Summary judgment is proper, even in negligence cases, when there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. When we review a motion for summary judgment, we view the record on appeal in the light most favorable to the party opposing the motion and accept all favorable inferences that can be drawn from the record in favor of that party.

Valance v. VI-Doug, Inc., 2002 WY 113 ¶ 7, 50 P.3d 697, ¶ 7 (Wyo.2002). We have often stated:

Summary judgments are not favored in negligence actions and are subject to exacting scrutiny. However, even in a negligence action, summary judgment may be appropriate, especially if a plaintiff cannot establish existence of a duty on the part of the defendant.

Valance, ¶ 7 (quoting Duncan v. Town of Jackson, 903 P.2d 548, 551 (Wyo.1995)).

[¶ 11] The elements of a negligence action are: (1) The defendant owed a duty to the plaintiff to conform to a specified standard of care; (2) The defendant breached a duty of care to the plaintiff; (3) The breach of the duty proximately caused the injury to the plaintiff; and (4) The injury sustained by the plaintiff is compensable by money damages. Valance, ¶ 8.

B. Duty

[¶ 12] This case presents an issue of first impression in Wyoming: Whether a professional counselor who is hired by the employer to perform a psychological evaluation on an employee for the benefit of the employer has a duty of care to the employee?

[¶ 13] "Without duty, negligence is not actionable. The existence of duty is a question of law, making an absence of duty the surest route to summary judgment in negligence actions." Daily v. Bone, 906 P.2d 1039, 1043 (Wyo.1995) (citing MacKrell v. Bell H2S Safety, 795 P.2d 776, 779 (Wyo. 1990); Tidwell v. HOM, Inc., 896 P.2d 1322, 1325 (Wyo.1995)).

[¶ 14] Duty focuses on the relationship of individuals and imposes on one an obligation for the benefit of the other. "A duty exists where, `upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other—or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant.' PROSSER AND KEETON ON TORTS § 37 at 236 (5th ed.1984)." Duncan v. Afton, Inc., 991 P.2d 739, 742 (Wyo.1999). Conversely, if no such relationship exists, then an obligation for the benefit of another is not imposed.

[¶ 15] In a malpractice action, a physician/patient relationship is normally required to establish a duty to act for the patient's benefit. Roybal v. Bell, 778 P.2d 108, 109 (Wyo.1989); Vassos v. Roussalis, 658 P.2d 1284, 1287 (Wyo.1983). This analysis of a physician/patient relationship applies equally to mental health professionals. Hafner v. Beck, 185 Ariz. 389, 916 P.2d 1105, 1107 (App. Div. 2 1995). However, since Gates v. Richardson, 719 P.2d 193 (Wyo. 1986), we have refused to be constrained by the "privity" test as the sole determinant of whether a duty exists.

[¶ 16] Erpelding contends that the district court erroneously limited itself to a privity analysis when it found that Lisek owed him no duty of care because a counselor/patient relationship did not exist. He argues that courts should apply the balancing test most recently utilized by this Court in Duncan, 991 P.2d at 739.

[¶ 17] Lisek relies on the reasoning contained in Hafner, 916 P.2d at 1108 and Martinez v. Lewis, 969 P.2d 213 (Colo.1998). Hafner held there was no duty because there was no physician/patient relationship, in other words, no privity. However, Martinez rejected the privity analysis and utilized a balancing of pertinent factors test to determine whether a physician, who conducted an independent medical examination for an insurer, had a duty to the patient.¹ The court in Martinez held that while the absence of a physician/patient relationship is not dispositive as to the existence of a duty, under the factors considered, the physician in that case did not owe Martinez a duty of care.

[¶ 18] Since G...