King v. Durham County Mental Health Developmental Disabilities and Substance Abuse Authority

• Decision Date: 18 January 1994
• Docket Number: No. 9214SC1337,9214SC1337
• Citation: 439 S.E.2d 771,113 N.C.App. 341
• Parties: Nesbit A. KING, Jr., As Administrator of the Estate of His Deceased Wife, Sherri Sparrow King, Plaintiff, v. DURHAM COUNTY MENTAL HEALTH DEVELOPMENTAL DISABILITIES AND SUBSTANCE ABUSE AUTHORITY, Lutheran Family Services in the Carolinas, Mohammed Thompson, Carlos Nichols, and Durham Community Guidance Clinic for Children and Youth, Inc., Defendants.
• Court: North Carolina Court of Appeals

Page 771

439 S.E.2d 771

113 N.C.App. 341

Nesbit A. KING, Jr., As Administrator of the Estate of His Deceased Wife, Sherri Sparrow King, Plaintiff, v. DURHAM COUNTY MENTAL HEALTH DEVELOPMENTAL DISABILITIES AND SUBSTANCE ABUSE AUTHORITY, Lutheran Family Services in the

Carolinas, Mohammed Thompson, Carlos Nichols, and Durham

Community Guidance Clinic for Children and Youth, Inc., Defendants.

No. 9214SC1337.

Court of Appeals of North Carolina.

Jan. 18, 1994.

Patton, Boggs & Blow by Kenneth J. Gumbiner and Julie A. Davis, Greensboro, for plaintiff-appellant.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Timothy P. Lehan, Raleigh, for defendant-appellee Durham County Mental Health Developmental Disabilities and Substance Abuse Authority.

Cranfill, Sumner & Hartzog by H. Lee Evans, Jr. and Kari Lynn Russwurm, Raleigh, for defendant-appellee Lutheran Family Services.

Faison & Fletcher by O. William Faison and Selina S. Nomeir, Durham, for defendant-appellee Durham Community Guidance Clinic for Children and Youth, Inc.

GREENE, Judge.

Nesbit A. King, Jr. (plaintiff), as Administrator of the Estate of his deceased wife, Sherri Sparrow King, appeals from the dismissal of his complaint filed in the superior court against Durham County Mental Health Developmental Disabilities and Substance Abuse Authority (Durham Mental Health), Lutheran Family Services in the Carolinas (Lutheran Services), and Durham Community Guidance Clinic for Children and Youth, Inc. (Guidance Clinic). The plaintiff's action against Mohammed Thompson (Thompson) and Carlos Nichols (Nichols) has not been dismissed.

The complaint alleged that on 27 February 1990, Sherri Sparrow King was shot to death by Thompson and Nichols in the course of a robbery of a convenience store located in Person County. Thompson, who was seventeen years old at the time of the murder, had a history of drug abuse and violent crime and, after his certification as a Willie M. class member in the spring of 1988, had been transferred from a state training school to Triangle House in Durham County. Triangle House, operated by Lutheran Services under contract with Durham Mental Health, was a "high management facility" which provided residential treatment to Willie M. class members. A Willie M. class member is a minor "having serious emotional, mental or neurological handicaps accompanied by violent or assaultive behavior." Durham Mental Health, which had waived its governmental immunity by purchasing liability insurance, coordinated the administration of services to Willie M. class members in Durham County and was responsible for providing secure facilities. Lutheran Services was responsible for providing evaluation and treatment to the residents of Triangle House and providing facilities "equipped to prevent residents from escaping and posing a threat to the community." Guidance Clinic contracted with Durham Mental Health to provide psychological testing, evaluation, and treatment to the residents of Triangle House. In January 1990, Thompson was transferred from Triangle House to a drug rehabilitation center. "Before completing treatment ... he returned to Triangle House, still with a drug dependence problem. Upon his return, Thompson was required to stay at the facility at all times in order to prevent his continued abuse of drugs. The possibility of his escape posed a clear and present danger to the general public." After his return to Triangle House, neither Durham Mental Health, Guidance Clinic, nor Lutheran Services initiated any evaluations of Thompson to determine the risk to the community. In mid-January 1990, Thompson left Triangle House through a door left unlocked "in violation of the facility's rules." In violation of regulations, Lutheran Services, Durham Mental Health, and Guidance Clinic failed to inform the police that Thompson had left Triangle House and failed to return Thompson to the facility.

The complaint also alleges that the defendants' failure to evaluate Thompson, the failure to provide a secure facility, and the failure to seek his return after he left Triangle House was "gross negligence" and that because of Thompson's history of drug abuse, violence, and other unlawful activity, it was reasonably foreseeable that his escape could lead to armed robbery and murder.

Durham Mental Health and Lutheran Services moved to dismiss the complaint on the bases of Rules 12(b)(1) and 12(b)(6). Guidance Clinic moved to dismiss on the basis of Rule 12(b)(6). At the hearing on the motions various documents were presented to the trial court including the following: (1) a performance audit report, dated March 1991, from the Office of the State Auditor which reveals that the State of North Carolina entered into a federal court consent decree in 1980 agreeing that the Department of Human Resources and the Department of Public Instruction would provide Willie M. class members with "the medical treatment, education, training and care which was suited to each child's individual needs." "In lieu of developing a new system of services throughout the State, the [State of North Carolina] chose to use local independent area mental health programs and educational agencies to provide the needed services to class members." A complete system of services was mandated, "ranging from a highly restrictive treatment environment (such as a locked residential facility or a high management group home) to the least restrictive setting (such as independent apartment living and outpatient treatment services)"; (2) a report, dated October 1990, and titled "The Willie M. Program" prepared by the North Carolina Department of Human Resources and the North Carolina Department of Public Instruction which reveals that although the Willie M. Program operation must "conform to state regulations, state supervision, and must meet the standards defined by the state," its operation is the ultimate responsibility of the local mental health boards; (3) a Mental Health Study Commission report, dated 28 February 1991, which states that the "[u]ltimate responsibility for serving Willie M. class members has been fixed at the state level. The State has designated the local mental health program as the lead agency for ensuring that its obligations to class members are met"; (4) a document entitled "Criteria for Certification as a Class Member" which states that to meet the behavioral criteria for certification as a Willie M. child, there must be evidence of one of the following:

[a] physical attacks against other persons, with or without weapons

[b] physical attacks against property, including burning

[c] physical attacks against animals

[d] self abusive or injurious behavior, including suicide attempts

[e] threatened attack with a deadly weapon

[f] forcible sexual attacks;

(5) a section from the Willie M. Manual which describes a high management home as one providing "treatment in a highly structured community residential setting to children with moderate to severe behavior problems, mental retardation, or other handicaps." "These group homes are not locked, but they do have 24-hour awake staff, and security precautions are taken"; (6) a portion of the second set of stipulations entered into in the federal Willie M. case, which in relevant part states that each Willie M. child is to be provided with the least restrictive living condition appropriate for that child. "Among the factors to be considered in determining the least restrictive living conditions ... are the need to minimize the possibility of harm to the individual and society"; and (7) a document entitled "The Willie M. Lawsuit," prepared by the North Carolina Department of Human Resources and dated "Fall, 1988." This document states in part that the plan of treatment for each Willie M. certified child "should ... respond to the [federal] court's mandate to ensure the safety of the community." This document further states that although the State is "obligated to provide appropriate services to all members of the [Willie M.] class[,] ... [it is] accepted that there may be times when the [State] will be unable to fulfill [its] obligations to some class members." For example, when the "parent or non-agency guardian, or the child himself, refuses for the certified Willie M. class member to receive services or participate in services called for in the child's Individual Habilitation Plan."

The trial court determined that the complaint against Guidance Clinic presented an "insurmountable bar to recovery" and dismissed this complaint pursuant to Rule 12(b)(6). The trial court determined that it "lacked subject matter jurisdiction over the dispute" and dismissed, pursuant to Rule 12(b)(1), the complaint against Durham Mental Health and...