Lipari v. Sears, Roebuck & Co.

• Decision Date: 17 July 1980
• Docket Number: Civ. No. 77-0-458.
• Citation: 497 F. Supp. 185
• Parties: Ruth Ann LIPARI, and the Bank of Elkhorn, Special Co-Administrators of the Estate of Dennis F. Lipari, Deceased, and Ruth Ann Lipari, Individually, Plaintiffs, v. SEARS, ROEBUCK & CO., a New York Corporation, and United States of America, Defendants. SEARS, ROEBUCK & CO., a New York Corporation, Defendant and Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant.
• Court: U.S. District Court — District of Nebraska

497 F. Supp. 185

Ruth Ann LIPARI, and the Bank of Elkhorn, Special Co-Administrators of the Estate of Dennis F. Lipari, Deceased, and Ruth Ann Lipari, Individually, Plaintiffs, v. SEARS, ROEBUCK & CO., a New York Corporation, and United States of America, Defendants.

SEARS, ROEBUCK & CO., a New York Corporation, Defendant and Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant.

Civ. No. 77-0-458.

United States District Court, D. Nebraska.

July 17, 1980.

COPYRIGHT MATERIAL OMITTED

William T. Ginsburg, Omaha, Neb., for plaintiff.

Frank H. Kulig, Omaha, Neb., for defendant and third-party plaintiff, Sears, Roebuck & Co.

Robert F. Kokrda, Asst. U. S. Atty., D. Neb., Omaha, Neb., for defendant and third-party defendant, U. S.

MEMORANDUM

DENNEY, District Judge.

This matter comes before the Court upon the motion of the United States to dismiss or for summary judgment Filing # 102.

In September of 1977, Ulysses L. Cribbs, Jr., purchased a shotgun from a Sears store located in Bellevue, Nebraska. Prior to purchasing this gun, Mr. Cribbs had been committed to a mental institution, and had been receiving psychiatric care from the Veterans Administration V.A.. Shortly after purchasing the gun, Mr. Cribbs resumed participation in psychiatric day care treatment at the V.A. This treatment lasted from September 23, 1977, until October 17, 1977, when Mr. Cribbs removed himself from this treatment, against the advice of his doctors. On November 26, 1977, Mr. Cribbs entered an Omaha night club and fired a shotgun into a crowded dining room, killing Dennis F. Lipari and seriously wounding his wife, Ruth Ann Lipari.

The instant case is a part of the litigation arising out of this shooting incident. This action was originally brought against Sears, Roebuck & Company by Ruth Ann Lipari and the Bank of Elkhorn, co-administrators of Dennis F. Lipari's estate, to recover damages for the wrongful death of Lipari. Ruth Ann Lipari also seeks to recover damages for her own personal injuries. The plaintiffs allege that Lipari's death and Mrs. Lipari's personal injuries were caused by the negligence of Sears in selling a gun to one whom Sears knew or should have known had been adjudged mentally defective or had been committed to a mental institution.

Sears has filed a third-party complaint against the United States. This third-party complaint is brought under the Federal Tort Claims Act. It alleges that the United States may be liable to Sears under the doctrines of contribution and indemnity for any damages which Sears may be required to pay the plaintiffs. Specifically, Sears alleges that the V.A.'s treatment of Mr. Cribbs was negligent because the V.A. knew or should have known that Mr. Cribbs was dangerous to himself and others, and because the V.A., despite this knowledge, failed "to take those steps, and to initiate those measures and procedures customarily taken or initiated for the care and treatment of mentally ill and dangerous persons by mental health professionals practicing in the community." This negligence on the part of the V.A. is alleged to be the proximate cause of Dennis Lipari's death and of Ruth Lipari's injuries.

Subsequent to the filing of Sears' third-party complaint, the plaintiffs filed a second complaint herein naming the United States as a defendant. This complaint is brought under the Federal Tort Claims Act and contains essentially the same allegations as the third-party complaint. The plaintiffs, however, allege that the V.A. was negligent in failing to detain Mr. Cribbs or in failing to initiate civil commitment proceedings against him.

In response to these complaints, the United States has filed a motion to dismiss or, in the alternative, for summary judgment. Since this motion involves primarily legal questions addressed to the sufficiency of the complaints' allegations, the Court will treat the motion of the United States as strictly a motion to dismiss.¹ To the extent that the United States seeks a summary judgment based on documents other than the pleadings, the Court is of the opinion that such matters should be resolved only after the factual record is fully developed at trial. See McLain v. Meier, 612 F.2d 349, 356 (8th Cir. 1979).

Essentially, the motion of the United States raises three issues: (1) whether the complaints state a cause of action against the United States for the V.A.'s negligent treatment of Mr. Cribbs; (2) whether the parties' claims against the United States are barred by the discretionary function exception to the Federal Tort Claims Act; and (3) whether the third-party complaint properly alleges a claim for indemnity or contribution under Nebraska law. Each party has submitted extensive written argument addressing these issues. After careful consideration of these arguments, the Court is of the opinion that the United States' motion to dismiss must be denied.

Failure to State Cause of Action

Under the Federal Tort Claims Act, the United States is liable for the torts of its employees only to the extent that a private person would be liable to the claimant under the law of the place where the tortious acts or omissions occurred. See 28 U.S.C. §§ 1346(b), 2674. The incidents involved in the instant action all occurred in Nebraska. This Court must therefore determine whether Nebraska law would impose a duty on a psychotherapist to take reasonable precautions to protect potential victims of his patient, when the psychotherapist knows or should know that his patient presents a danger to others.

Unfortunately, the Nebraska Supreme Court has never addressed the issue of a therapist's duty to third persons. It therefore becomes the duty of this Court to ascertain what rule of law the Nebraska Supreme Court would adopt in this situation. In making this determination, the Court will consider any Nebraska authority dealing with issues analogous to those raised in this case. The Court will also consider the case law of other jurisdictions, to the extent that it suggests the rule of law which the Nebraska Supreme Court would be likely to adopt. See Hoesing v. Sears, Roebuck & Co., 484 F.Supp. 478, 478-79 (D.Neb.1980).

An essential element in any negligence action is the existence of a legal duty which the defendant owes to the plaintiff. Daniels v. Andersen, 195 Neb. 95, 98, 237 N.W.2d 397, 400 (1975). Under the common law, a person had no duty to prevent a third party from causing physical injury to another. A number of courts, however, have recognized an exception to this general rule. Under this exception, a person has a duty to control the conduct of a third person and thereby to prevent physical harm to another if

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts § 315 (1965). See, e. g., Seibel v. City & County of Honolulu, Haw., 602 P.2d 532, 536 (1979). Since there is clearly no relationship between the V.A. and the persons injured by Mr. Cribbs, the Court will limit its analysis to a discussion of the relationship between Mr. Cribbs and his doctors at the V.A.

Under the Restatement approach, the psychotherapist-patient relationship has been found to be a sufficient basis for imposing an affirmative duty on the therapist for the benefit of third persons. Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976); McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500 (1979). Although the cases recognizing this duty are from jurisdictions other than Nebraska, this Court may be guided by these decisions since they provide a "just and reasoned" analysis of the issues raised in the instant case. See Seedkem v. Safranek, 466 F.Supp. 340, 343 (D.Neb.1979). The Court will therefore discuss these decisions in some detail.

In Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976), the plaintiffs' complaint alleged that the defendant therapists had a duty to warn their daughter of the danger posed to her by one of the therapist's patients.² The California Supreme Court's analysis of whether the complaint stated a cause of action began with recognition of the general rule that one person owes no duty to control the acts of another. However, the court then adopted the Restatement's special relationship exception to this rule. Applying this exception to the facts before it, the court held that the relationship between the patient and her therapist was sufficient to support the imposition of an affirmative duty on the defendant for the benefit of third persons. Id. at 435, 551 P.2d at 343, 131 Cal.Rptr. at 23. This duty existed even though the defendant therapists did not stand in a special relationship to both the injured party and the person whose conduct created the risk. Id. at 436, 551 P.2d at 344, 131 Cal.Rptr. at 24.

In support of recognition of this duty, the court noted that in other settings, courts had found doctors and hospitals responsible for the behavior of their patients. Among the cases cited by the Tarasoff court were decisions in which the courts had recognized that a mental hospital may be liable for the negligent release of dangerous patients. Id. at 436 n.7, 551 P.2d at 343 n.7, 344, 131 Cal.Rptr. at 23 n.7, and in which the courts had held that a doctor was liable for his negligence to those contracting a contagious disease from his patient. Id. at 436, 551 P.2d at 344, 131 Cal.Rptr. at 24.

In McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500 (1979), the New Jersey Superior Court was faced with the issue of whether a psychiatrist had a duty to warn a potential victim of one of his patients of the danger posed by that patient.³ The McIntosh court adopted the Restatement rule that a defendant has...