Matt v. Burrell, Inc.

• Decision Date: 03 February 1995
• Docket Number: No. 18983,18983
• Parties: Paul Joseph MATT and Leah Rene Matt, b/n/f Paul Joseph Matt, Plaintiffs-Appellants, v. BURRELL, INC., Paul Goodwin, Al Clement, and Dr. Gordon McAfee, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 796

892 S.W.2d 796

Paul Joseph MATT and Leah Rene Matt, b/n/f Paul Joseph Matt Plaintiffs-Appellants, v. BURRELL, INC., Paul Goodwin, Al Clement, and Dr. Gordon McAfee, Defendants-Respondents.

No. 18983.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 3, 1995.

Bob Bruer, Bruer & Wooddell, P.C., Springfield, for appellants.

Kenneth W. Bean and Joseph R. Hillebrand, Sandberg, Phoenix & Von Gontard, P.C., St. Louis, for defendant-respondent McAfee.

Glenn A. Burkart, Mann, Walter, Burkart, Weathers & Walter, L.C., Springfield, for respondents Burrell, Inc., Paul Goodwin and Al Clement.

FLANIGAN, Judge.

On August 26, 1994, this court issued an opinion in this cause. On October 27, 1994, by order of the Supreme Court of Missouri, this cause was transferred to that court. On January 24, 1995, the Supreme Court entered an order retransferring the cause to this court. The original opinion of this court, which follows, is now readopted and reissued.

This is an action for the wrongful death of Mary Lynn Matt, who died on December 20, 1990, as a result of a vehicular collision which occurred the previous day. Plaintiffs are her surviving husband and child. Count I of the petition sought recovery against defendants Burrell, Inc. ("Burrell"), Paul Goodwin, Al Clement, and Dr. Gordon McAfee. Count II sought recovery against LeAnn Olshavsky, the driver of the vehicle with which decedent's vehicle collided. The trial court dismissed Count I, on motion of the defendants, on the ground that it failed to state a claim upon which relief can be granted. Pursuant to Rule 74.01, ¹ the trial court made its ruling with respect to Count I appealable on the express determination that there is no just reason for delay. Plaintiffs appeal.

Plaintiffs' first point is that Count I stated a claim for relief, and the trial court erred in ruling otherwise, because: (a) a special relationship of patient/mental health care providers existed between defendants and LeAnn Olshavsky which imposed a duty upon defendants to use reasonable care in controlling the conduct of LeAnn Olshavsky toward third persons such as Mary Lynn Matt; (b) defendants had "taken charge" of LeAnn Olshavsky, whom they knew or should have known to be likely to cause bodily harm to others if not controlled, thus, they had a duty to exercise reasonable care to control the conduct of LeAnn Olshavsky to prevent her from doing such harm; (c) "Under traditional tort principles a calculus of policy considerations dictates that a duty of reasonable care exists here."

For the reasons which follow, this court holds that the trial court's order of dismissal was proper and that plaintiffs' first point has no merit.

When a petition is attacked by motion to dismiss for failure to state a claim, the mere conclusions of the pleader are not admitted. The facts alleged, however, are taken to be true and the pleader is entitled to all inferences fairly deducible therefrom. If such facts and inferences, viewed most favorably from plaintiff's standpoint, show any ground for relief, the petition should not be dismissed. A petition is sufficient when its allegations invoke principles of substantive law which may entitle plaintiff to relief or when it appears that plaintiff may be able to prove a set of facts which would entitle him to relief on his claim. The ruling on a motion to dismiss is ordinarily confined to the face of the petition, which must be given a liberal construction. Boyd v. Lane, 869 S.W.2d 305, 306 (Mo.App.1994).

Count I alleged that decedent died as a direct result of a collision which occurred on December 19, 1990, when defendant Olshavsky "drove her vehicle into decedent's lane, colliding head-on with decedent's vehicle." Count I also alleged the matters set forth in the following eleven paragraphs:

Burrell is a community psychiatric rehabilitation center, providing comprehensive mental health services. Olshavsky was a patient of Burrell. Defendants Goodwin and Clement are psychiatric social workers who provided mental health services and treatment to Olshavsky and did so within the course and scope of their employment by Burrell. Defendant McAfee is a medical doctor specializing in the care of psychiatric patients. McAfee provided medical care and mental health services and treatment to Olshavsky during the course and scope of his employment by Burrell. "[A]lternatively, McAfee was a private physician rendering care and treatment to Olshavsky."

Olshavsky had been a patient of Burrell since May 1989, and the relationship continued through December 19, 1990. Olshavsky had 15 prior hospitalizations for mental illness, and she had made repeated attempts at suicide. Defendants knew of this history.

On December 19, 1990, Olshavsky "presented herself" to Burrell at its facility and was seen there by Goodwin and Clement. Olshavsky was mentally ill, depressed and suicidal. Her condition was reported to McAfee while she was there. Olshavsky stated that she was going to leave the Burrell facility and kill herself by wrecking her car. The four defendants knew her stated intent and knew she was a danger to herself and others if she were permitted to leave the Burrell facility. Defendants failed to stop her departure from the facility.

Burrell had taken charge of Olshavsky on and prior to December 19, 1990, in that Burrell had continuously diagnosed and treated Olshavsky since May 30, 1989. Burrell participated in Olshavsky's involuntary detention in August 1990, and early December 1990.

Burrell developed on an ongoing basis a "Critical Intervention Plan" in the event Olshavsky became a danger to herself or others. The plan included an involuntary 96-hour hold of Olshavsky should the need arise. The plan was in effect on December 19, 1990, and a copy is attached as Exhibit F.

Because of the foregoing circumstances, Burrell and its employees had a duty to restrain Olshavsky on December 19, 1990.

Burrell was negligent in failing to prevent Olshavsky from leaving the facility, in failing to diagnose and treat Olshavsky's mental illness, and in failing "to timely call the police or other authority to restrain Olshavsky."

Goodwin and Clement were negligent in failing to restrain and prevent Olshavsky from leaving the facility and in failing to call the police to restrain Olshavsky.

McAfee was negligent in failing to have Olshavsky restrained or prevented from leaving the facility, in failing to call the police to restrain Olshavsky, in failing to treat Olshavsky and in abandoning the care of Olshavsky, and "in discharging Olshavsky from the Marian Center, a facility for the mentally ill, on December 18, 1990, following a psychotic suicide attempt."

Goodwin was designated a mental health professional by Burrell. McAfee was designated a mental health professional by another health center located in Springfield, Missouri. Both were approved as mental health professionals by the Missouri Department of Mental Health for the period covering December 19, 1990. Burrell's own "Operational Guidelines" "for events as existed here on December 19, 1990," permitted the use of restraint of Olshavsky by its staff.

Decedent's death was the direct and proximate result of defendant's negligence, and plaintiffs were thereby damaged.

Decisions in other jurisdictions are in conflict on whether a duty of care is owed by a mental health facility or medical practitioner to an individual member of the general public, injured by a mentally ill person, for a decision to release the mentally ill person from confinement.

Out-state cases lending support, in varying degrees, to plaintiffs' argument that Count I states a claim for relief include the following: Semler v. Psychiatric Institute of Washington, D.C., 538 F.2d 121 (4th Cir.1976); Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185 (D.Neb.1980); Tarasoff v. Regents of University of California, 551 P.2d 334 (Ca. banc 1976); Perreira v. State, 768 P.2d 1198 (Colo.1989); Bradley Center, Inc. v. Wessner, 250 Ga. 199, 296 S.E.2d 693 (1982); Estate of Mathes v. Ireland, 419 N.E.2d 782 (Ind.App.1981); Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983); Leverett v. State, 61 Ohio App.2d 35, 399 N.E.2d 106 (1978); and Petersen v. State, 100 Wash.2d 421, 671 P.2d 230 (1983).

Out-state cases lending support, in varying degrees, to defendants' argument that Count I does not state a claim for relief include the following: Currie v. U.S., 836 F.2d 209 (4th Cir.1987); Brady v. Hopper, 751 F.2d 329 (10th Cir.1984); Hasenei v. United States, 541 F.Supp. 999 (D.Md.1982); Soutear v. United States, 646 F.Supp. 524 (E.D.Mich.1986); Leedy v. Hartnett, 510 F.Supp. 1125 (M.D.Pa.1981); Morton v. Prescott, 564 So.2d 913 (Ala.1990); Thompson v. County of Alameda, Cal., 614 P.2d 728 (Ca. banc 1980); Leonard v. State, 491 N.W.2d 508 (Iowa 1992); Cairl v. State, 323 N.W.2d 20 (Minn.1982); and Jarrett v. Wills, 235 Or. 51, 383 P.2d 995 (1963).

The principal Missouri case on which defendants rely to support the order of dismissal is Sherrill v. Wilson, 653 S.W.2d 661 (Mo. banc 1983). There plaintiff brought a wrongful death action against the state of Missouri and various hospital officials and physicians. A mental patient, one Corley, had been committed to a state hospital by court order. After being released on a two-day pass, Corley killed plaintiff's decedent. The petition alleged that the defendants were "grossly negligent" in releasing Corley on a pass when they knew of his severe mental illness and dangerous proclivities, and in failing to recapture him after he had overstayed his pass. The trial court held that the petition did not state a claim for relief, and this ruling was affirmed.

The court mentioned several statutes contained in Chapter 632, V.A.M.S., which became effective January 2, 1979, which was after the death occurred. The court pointed out it was not called upon "to interpret or to apply the new statutes." The court...