Little v. All Phoenix South Community Mental Health Center, Inc.

Citation186 Ariz. 97,919 P.2d 1368
Decision Date26 December 1995
Docket NumberNo. 2,CA-CV,2
PartiesBarbara LITTLE, by and for herself and as guardian and natural mother of Howard Watterson, a minor, Plaintiff/Appellant, v. ALL PHOENIX SOUTH COMMUNITY MENTAL HEALTH CENTER, INC., an Arizona corporation; Human Dynamics, a business entity, Defendants/Appellees. 95-0256.
CourtCourt of Appeals of Arizona


Plaintiff/appellant Barbara Little (plaintiff) appeals from the trial court's directed verdict entered in favor of defendants/appellees (defendants) All Phoenix South Community Mental Health Center, Inc. (Phoenix South) and Human Dynamics Institute (HDI) at the close of plaintiff's case-in-chief during a jury trial. For the reasons stated below, we reverse and remand.


The facts, viewed in a light most favorable to plaintiff, are as follows. Plaintiff married Dennis Little in 1988. Dennis first showed signs of mental imbalance in March 1989. In April, he set their house on fire and was charged with arson. After his release from jail, plaintiff took him to St. Luke's Hospital emergency room on May 9, 1989, for a psychiatric evaluation. Dennis told a psychiatric nurse there that he had thoughts of committing suicide and homicide, and that he had thought of killing plaintiff and his father. Dennis was admitted into the psychiatric intensive care unit and discharged from the hospital two days later for insurance reasons.

The Littles' insurance carrier had a contract with HDI to establish mental health treatment plans. Phoenix South, a mental health care/substance abuse treatment center which ran a variety of programs in the Phoenix area, operated HDI, a program that primarily delivered behavioral health care services. On May 11, counselor Jody Johnson of HDI performed a crisis assessment of Dennis, noting that, "Client appears at risk of hurting himself or his wife, has made threats to that effect during the last few days, by his own admission & according to his wife." Dennis was then admitted to the East Valley Camelback Hospital, where he remained until May 29, 1989.

On May 30 and July 10, Dennis was seen by counselors at Family Dimensions, another division of Phoenix South. On May 30, a Family Dimensions psychiatrist noted that Dennis "was abusive to wife." Family Dimensions' July 10 note indicated that Dennis "fights with wife." Although Dennis was supposed to continue with the counseling sessions after that, he did not do so. In late July 1989, Dennis assaulted plaintiff and was arrested. During the first week of August, he left the state with the couple's infant daughter, but was apprehended in Texas and extradited to Arizona. He was jailed until September 29, when he entered another treatment program, Teen Challenge. Dennis left that program on October 3 and sought help from plaintiff, who allowed him to stay with her if he renewed treatment with HDI.

Dennis called HDI and was assessed there, again by Jody Johnson, on October 4, 1989. At that time he expressed a need and desire for in-patient hospitalization because he "just didn't think things was going right" and "was afraid [he] might hurt [plaintiff]." Dennis knew that if he stayed around too long, he would end up hurting plaintiff or she would hurt him, and he told Ms. Johnson that he "was having these stupid thoughts and [felt] like things was going wrong." Dennis described the "stupid thoughts" as "when you are depressed and ... not working, you know, you think about all kinds of stuff, armed robbery, murder, arson [and] ... suicide." Dennis had "a lot of those" thoughts about harming plaintiff. The thoughts were more serious than in April, when he set fire to the house. Dennis told Ms. Johnson "that suicide thoughts was coming back and I was not on my medication ... [a]nd I'd kind of like, you know, to talk to somebody about it."

HDI's October assessment noted that Dennis "demonstrated obsessive & paranoid thinking re: his wife, but he recognized the inappropriateness of those ideations. He expressed passive suicidal ideations in terms of helplessness & hopelessness, but denied any current intent or plan to harm himself." Instead of hospitalizing Dennis, HDI placed him in the "Respite" program, a structured care treatment program in which patients received room and board supervised by a trained staff. There was no evidence that the Respite staff was furnished with any written documentation concerning Dennis, such as his prior hospital records or crisis assessments. The program did not provide psychiatrists or psychologists, and Respite staff was specifically instructed to provide no "counseling, therapy, advising, consulting." Rather, their function was to serve as a "companion."

On October 5, 1989, Dennis left his Respite apartment and went to plaintiff's home. He became angry after she refused to have unprotected sexual relations with him. Plaintiff described what happened then:

I came out of the restroom, and he was sitting on the bed, just sitting at the end of the bed looking down or something. And I went over to sit down on the bed to put my shoes on and happened to glance down on the floor, and there's this butcher knife laying on the floor next to the bed.... I thought he was going to murder me.... I picked up the knife. And the first thing I did was I started praying out loud.... and the next thing I did was I said: What is this knife doing here? And then he broke down and started crying. And said: Oh, I was going to kill myself.

Plaintiff took Dennis back to the Respite program, where she told a staff member there about the above incident, and that she feared that Dennis "was going to either hurt himself or both of us." The staff member specifically asked Dennis about a knife. Plaintiff told another HDI employee that she was afraid and that Dennis needed therapy but had received none in the Respite program.

On the evening of October 6, Dennis picked plaintiff up from work and the children from the babysitter, and they all returned home. As plaintiff changed out of her work clothes and planned to take Dennis back to Respite, he entered the bedroom, stabbed her several times with a kitchen knife and then fled from the house. Due to multiple stab wounds and a collapsed lung caused by the incident, plaintiff was hospitalized for six days and off work for two months. Both she and her minor son, who was in the home at the time of the assault, required psychological counseling to deal with the incident.

In her complaint, filed on behalf of herself and her son, plaintiff alleged that Phoenix South and HDI owed a duty, not only to Dennis but also to them, "to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the same profession" in Arizona. Plaintiff further alleged that Phoenix South and HDI breached their duty of care by, inter alia, "negligently and carelessly refus[ing] to hospitalize Dennis Little although he was clearly a danger to himself and others."

The case was tried to a jury. At the close of plaintiff's case-in-chief, defendants moved for a directed verdict, contending that plaintiff had failed to present sufficient evidence to establish a claim under A.R.S. § 36-517.02, which provides in pertinent part as follows:

A. There shall be no cause of action against a mental health provider nor shall legal liability be imposed for breaching a duty to prevent harm to a person caused by a patient, unless both of the following occur:

1. The patient has communicated to the mental health provider an explicit threat of imminent serious physical harm or death to a clearly identified or identifiable victim or victims, and the patient has the apparent intent and ability to carry out such threat.

2. The mental health provider fails to take reasonable precautions.

Defendants further contended that the statute provided the exclusive basis of liability in this case. In granting the directed verdict for defendants, the trial court noted that "reasonable minds can't differ that there was not an explicit threat conveyed or communicated to the [defendants] by the patient, either directly or indirectly." The court further determined that § 36-517.02 did not "abrogate" the cause of action and therefore is constitutional, noting that "the legislature can basically define this standard of care or actually define the duty to nonpatients because there are a lot of considerations." This appeal followed.


A motion for directed verdict admits the truth of all competent evidence introduced by the party opposing the motion, and all reasonable inferences to be drawn therefrom. Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 543, 789 P.2d 1040, 1044 (1990). "A directed verdict is proper if reasonable minds could not differ on the inferences or conclusions that could be drawn from the evidence, and the party for whom it is granted is entitled to judgment as a matter of law." Rourk v. State, 170 Ariz. 6, 9, 821 P.2d 273, 276 (App.1991). On appeal, we review de novo the trial court's grant of a directed verdict, examining the evidence in the light most favorable to the party against whom the verdict was entered. Shuck v. Texaco Ref. & Mktg., Inc., 178 Ariz. 295, 297, 872 P.2d 1247, 1249 (App.1994). We also review de novo statutory interpretation issues and constitutional claims because they involve questions of law. Norquip Rental Corp. v. Sky Steel Erectors, Inc., 175 Ariz. 199, 202, 854 P.2d 1185, 1188 (App.1993).

1. Background

In Hamman v. County of Maricopa, 161 Ariz. 58, 775 P.2d 1122 (1989), our supreme court first addressed a...

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