Jacoves v. United Merchandising Corp.

• Decision Date: 31 August 1992
• Docket Number: B054005,Nos. B052163,s. B052163
• Citation: 11 Cal.Rptr.2d 468,9 Cal.App.4th 88
• Court: California Court of Appeals
• Parties: Ira JACOVES et al., Plaintiffs and Appellants, v. UNITED MERCHANDISING CORPORATION et al., Defendants and Respondents.

Page 468

11 Cal.Rptr.2d 468

9 Cal.App.4th 88

Ira JACOVES et al., Plaintiffs and Appellants, v. UNITED MERCHANDISING CORPORATION et al., Defendants and Respondents.

Nos. B052163, B054005.

Court of Appeal, Second District, Division 5, California.

Aug. 31, 1992.

Review Denied Nov. 25, 1992.

David M. Harney, Los Angeles, Thomas Kallay, Stuart B. Esner and Grant Marylander, Santa Monica, for plaintiffs and appellants.

Fonda & Garrard, Peter M. Fonda, Los Angeles, Greines, Martin, Stein & Richland, Kent L. Richland, Feris M. Greenberger, Roxanne Huddeston, Stone & Hiles and

Laurie Rittenberg, Beverly Hills, for defendants and respondents.

GRIGNON, Associate Justice.

This case arises from the suicide death of twenty-year old Jonathan Jacoves. Jonathan is survived by his parents Ira and Jeanne Jacoves, who are plaintiffs and appellants in this action. The Jacoveses appeal from a summary judgment in favor of defendant and respondent Van Nuys Hospital (the "Hospital"). In their action against the Hospital for wrongful death and negligent infliction of emotional distress, the Jacoveses alleged that the Hospital, through its agents and employees, negligently cared for, treated and discharged Jonathan. We reverse the summary judgment in favor of the Hospital. The Jacoveses also appeal from a judgment on the pleadings in favor of defendant and respondent United Merchandising Corporation doing business as Big 5 Sporting Goods ("Big 5"). In their action against Big 5 for wrongful death and negligent infliction of emotional distress, the Jacoveses alleged that Big 5 negligently sold Jonathan the rifle with which he committed suicide. We affirm the judgment on the pleadings in favor of Big 5.

PROCEDURAL BACKGROUND

The Jacoveses filed a first amended complaint against the Hospital, Big 5 and others who are not parties to this appeal for wrongful death and negligent infliction of emotional distress. The Hospital demurred to the complaint, asserting that the Jacoveses failed to state a cause of action against it for negligent infliction of emotional distress because it owed no duty to the Jacoveses. The trial court overruled the demurrer. The Hospital petitioned this court for a writ of mandate, requesting that the order overruling the demurrer be vacated. The petition was granted and the order overruling the demurrer was vacated by Division One of this court. The trial court was ordered to sustain the demurrer with leave to amend. (Van Nuys Psychiatric Hospital v. Superior Court (June 29, 1987) B026202 [nonpub. opn.].) The Jacoveses filed a second amended complaint. The Hospital answered the complaint.

Big 5 filed a motion for judgment on the pleadings which was granted. The Jacoveses' complaint against Big 5 was dismissed in its entirety with prejudice. The Jacoveses appeal from the judgment on the pleadings.

The Hospital filed a motion for summary judgment or, in the alternative, summary adjudication of issues. The motion for summary judgment was granted and the alternative motion for summary adjudication of issues was denied. The Jacoveses appeal from the summary judgment.

On our own motion, we have consolidated the appeal from the judgment on the pleadings (B052163) and the appeal from the summary judgment (B054005).

DISCUSSION

I THE HOSPITAL'S MOTION FOR SUMMARY JUDGMENT

A. The Allegations of the Second Amended Complaint

On March 26, 1985, Jonathan tried to commit suicide by overdosing on nonprescription medication. ¹ Jonathan was admitted to the Beverly Hills Medical Center, ² where he was diagnosed as actively suicidal and schizophrenic. Two days later, on March 28, 1985, Jonathan was discharged from the Beverly Hills Medical Center on condition that the Jacoveses transfer him to a psychiatric facility. The treating psychologist recommended that Jonathan be admitted to the Hospital under the care of Lee Bloom, M.D., a psychiatrist, and the Jacoveses agreed.

On the same day he was discharged from the Beverly Hills Medical Center, the Jacoveses, Jonathan's sole providers of support, care and treatment, contracted with the Hospital for Jonathan to become a psychiatric patient under Dr. Bloom's care. The Jacoveses and Jonathan were required by the Hospital to sign a contract of admission which consisted of two forms: (1) the "Van Nuys Psychiatric Hospital Request for Voluntary Admission and Authorization for Treatment" (the "Request for Admission") signed on March 28, 1985 by Jonathan as "Patient," Jeanne Jacoves as "Responsible Relative" and Dr. Bloom as the certified attending physician; ³ and (2) a "Van Nuys Psychiatric Hospital Conditions of Admission" signed on March 28, 1985 by Jonathan as "Patient" and Ira Jacoves as the "Financially Responsible Party (Insurance Policyholder)." Neither form specified that Jonathan would be admitted into any particular unit of the Hospital.

The Hospital's Request for Admission form released both the Hospital and Dr. Bloom from liability for possible injury to Jonathan which might result from his freedom of action while in the Hospital. The Hospital's Conditions of Admission form contained a release of both the Hospital and Dr. Bloom from liability for injuries to Jonathan resulting from any approved off-ground privileges. It also contained a grant of permission for the Hospital to perform all services and treatments prescribed by Dr. Bloom and a provision that "additional charges will be billed separately by [Dr. Bloom]."

Although there was a provision for the signature of the "Patient's Agent or Representative" on the Conditions of Admission form, neither of the Jacoveses signed the document in that capacity. Jonathan signed both forms "as patient and the party to be admitted as a condition of admission, and in order to evidence the fact that he was of legal age, and was aware of his admission to, and treatment by, [the Hospital]." The Jacoveses participated in the admission process, consented to and authorized Jonathan's admission and were the direct and intended beneficiaries of the contract, "authorizing and consenting to said treatment in order to implicate their own parental interests, abate their concerns, and to promote their own well-being, as well as that of their son."

Jonathan was diagnosed as having a "major depressive disorder, recurrent in a schizoid paranoid personality with suicidal potential and ideation." The Jacoveses were active instrumentalities in the treatment of Jonathan. They participated in group therapy with Jonathan and were intended to personally benefit from their participation. They received information concerning Jonathan's treatment and status "to ensure their contemporaneous awareness and ongoing treatment of [Jonathan]." On April 9, 1985, at the direction and request of Dr. Bloom, the Jacoveses entered into a contract with Jonathan, "in which he promised not to fulfill his suicide threats and attempts; ... [the] agreement was entered into as part of [Jonathan's] treatment for the express and intended benefit of the [Jacoveses]." ⁴ Jonathan agreed to formally contract with his parents not to harm himself for four months upon discharge from the Hospital to his parents' home.

On April 11, 1985, fifteen days after he was admitted, Jonathan was discharged from the Hospital based in part on his agreement with the Jacoveses that he would not commit suicide. Shortly before he was discharged, Jonathan told Penny Biroc, a Hospital psychiatric aide, he had agreed to contract with his parents not to commit suicide, and he hoped he meant it, but doubted it. Biroc recorded that conversation in Jonathan's chart but did not inform Jeanne Jacoves of the statement when Biroc delivered Jonathan to her. Dr. Bloom negligently discharged Jonathan, in view of the recorded statement in Jonathan's medical chart that Jonathan's thoughts were still suicidal.

Subsequent to Jonathan's discharge, Dr. Bloom saw Jonathan on April 18, 1985. Dr. Bloom negligently concluded that Jonathan was not suicidal. On April 22, 1985, eleven days after his discharge from the Hospital, Jonathan purchased a rifle at Big 5 and committed suicide by means of a self-inflicted gunshot wound.

B. Motion for Summary Judgment

In its motion for summary judgment, the Hospital contended that it owed no duty to the Jacoveses, or to Jonathan once Jonathan was discharged from the Hospital; it had no duty to inform and was not negligent in failing to inform the Jacoveses or Jonathan's doctors of Jonathan's comments to Biroc on the day of his discharge; and Dr. Bloom was not the Hospital's agent or employee. The Hospital additionally argued that Jonathan's post-discharge visits with Drs. Bloom and Peck, as well as the Jacoveses' post-discharge observation of Jonathan, were superseding causes of Jonathan's suicide. The Hospital further argued that Jonathan's purchase of the rifle constituted a superseding cause of his suicide. The motion was based on undisputed facts in the second amended complaint, the unpublished writ opinion, ⁵ the Jacoveses' responses to requests for admissions, Jonathan's medical records and the depositions of Dr. Peck, the Jacoveses and Dr. Bloom.

C. The Hospital's Separate Statement of Undisputed Facts

Jonathan was first seen by his treating psychologist, Michael Peck, Ph.D., on December 13, 1984. On March 26, 1985, Jonathan attempted to commit suicide and was transported to Beverly Hills Medical Center, where he remained until March 28, 1985. Dr. Peck recommended that Jonathan continue his hospitalization under the care of psychiatrist Lee Bloom, M.D., at Coldwater Canyon Hospital, where Dr. Bloom had admitting privileges. The Jacoveses had confidence in Dr. Peck and desired to follow his recommendation. Since there were no beds available at Coldwater Canyon Hospital, Jonathan was admitted to the Hospital, where Dr. Bloom also had admitting privileges. The Jacoveses chose the Hospital because Dr. Bloom was on staff there. Dr. Bloom maintained staff privileges...