Nally v. Grace Community Church of the Valley

• Decision Date: 16 September 1987
• Citation: 240 Cal.Rptr. 215,194 Cal.App.3d 1147
• Parties: Previously published at 194 Cal.App.3d 1147 194 Cal.App.3d 1147 Walter J. NALLY and Maria Nally, Plaintiffs and Appellants, v. GRACE COMMUNITY CHURCH OF THE VALLEY, a Non-Profit Corporation; John F. MacArthur, L. Duane Rea, Richard A. Thomson, Jr., and Lynn Cory, Defendants and Respondents. B015721.
• Court: California Court of Appeals Court of Appeals

Page 215

240 Cal.Rptr. 215

Previously published at 194 Cal.App.3d 1147

194 Cal.App.3d 1147

Walter J. NALLY and Maria Nally, Plaintiffs and Appellants, v. GRACE COMMUNITY CHURCH OF THE VALLEY, a Non-Profit Corporation; John F. MacArthur, L. Duane Rea, Richard A. Thomson, Jr., and Lynn Cory, Defendants and Respondents.

B015721.

Court of Appeal, Second District, Division 7, California.

Sept. 16, 1987.

As Modified on Denial of Rehearing Oct. 16, 1987.

Review Granted Jan. 21, 1988.

Edward Barker, Los Angeles, for plaintiffs and appellants.

Cooksey, Coleman & Howard and David R. Cooksey, Santa Ana, Samuel E. Ericsson and Michael A. Paulsen, for defendants and respondents.

JOHNSON, Associate Justice.

This is the second time around in the appellate courts for this case. The first opinion generated a veritable fire storm of controversy in the nation's law reviews. (See, e.g., the authorities collected in fn. 3, p. 224, infra.) They called it the seminal case in a new cause of action most frequently labeled "clergy malpractice." This court, however, does not view the causes of action discussed in our opinion to involve "clergy malpractice." Instead we see them more accurately characterized as "negligent failure to prevent suicide" and "intentional or reckless infliction of emotional injury causing suicide"--which negligence and intentional or reckless acts happen to have been committed by church-affiliated counselors. In our view this case has little or nothing to say about the liability of clergymen for the negligent performance of their ordinary ministerial duties or even their counseling duties except when they enter into a counseling relationship with suicidal individuals.

In this case we reverse the trial court's nonsuit of the negligence and outrageous conduct allegations against Grace Community Church (Church) and several of its pastoral counselors. We construe the negligence allegations to charge inter alia that the Church's counselors negligently failed to refer this mentally disturbed suicidal youth to those authorized and best suited to prevent an imminent suicide. We find established principles of California law impose a duty of due care on those who undertake a counseling relationship with mentally disturbed suicidal individuals, whether those counselors are affiliated with a religious institution or not. For those counselors not authorized to prescribe medication or initiate involuntary hospitalization the standard of care may require them, in appropriate cases, to refer counselees to those who possess these powers to prevent an imminent suicide. A reasonable juror could have found from the available evidence that the counselors in the instant case failed to satisfy this standard of care. We then hold the First Amendment does not immunize the Church's counselors from liability for failing to meet this standard of care. Accordingly, the trial court erred in granting nonsuit as to the allegations of negligent failure to refer a suicidal individual to those authorized and suited to prevent an imminent suicide.

At an earlier stage of these proceedings another Court of Appeal construed the "outrageous conduct" count to state a cause of action for intentional or reckless infliction of emotional distress on the suicidal youth which led to his death. We defer to this prior appellate opinion under the law of the case doctrine. We then hold the trial court erred in excluding audio tapes the Nally I court had found to raise a triable issue whether the counselors indeed had intentionally or recklessly encouraged this suicidal youth to commit suicide. Including this audio tape in the assessment and construing the evidence most favorably to appellants we conclude a reasonable juror could have found the counselors acted recklessly in a way which encouraged this suicide. The Nally I court already held the First Amendment does not create immunity shielding these church-affiliated counselors from liability for intentionally or recklessly encouraging a suicidal individual to take his life. Accordingly, we reverse the trial court's nonsuit of this count, too.

FACTS AND PROCEEDINGS BELOW

This case arises out of a profound human tragedy--the suicide of a healthy, intelligent young man with a promising future. Kenneth Nally graduated second in his class from high school and was a star baseball player. He finished college and was contemplating law school. But while still in his late teens Kenneth had developed a mental illness. This illness worsened and eventually led this young man to kill himself with a shotgun at the age of 24.

This case also involves a large, well-established church. As many as 10,000 people attend Grace Community Church on a given Sunday. In addition to religious services, the Church also conducts a very active counseling program, having had close to 30 counselors in 1979. Kenneth Nally Duane Rea was employed at Grace Community Church as a counselor. In this capacity he counseled people with severe emotional problems, including people who were very depressed and who expressed suicidal thoughts. The counseling is essentially biblical, the witness holding the belief the Bible holds answers to emotional problems. He counseled Kenneth from January 1978 to April 1978. Kenneth was distraught and cried from time to time. He said he could not cope. Mr. Rea has not had any graduate or undergraduate training in psychology and holds no license in any of the mental health professions. He considers himself gifted at counseling, qualifying this statement by saying only God can know.

first came to the Church about 1974. He became a friend of defendant Cory who was a pastor in the college department of the Church in 1976, 1977 and 1978. Defendant Cory testified he had no formal counseling sessions with Kenneth but knew the boy was depressed. He recommended to Kenneth he take counseling from defendants Thomson and Rea. According to Cory's testimony, he did not recommend Kenneth see a psychiatrist or psychologist although nothing in Mr. Cory's religious belief or the theology of Grace Community Church would say it is wrong to do so. When Kenneth was hospitalized (three weeks or so before his death) from a suicide attempt, Mr. Cory visited him and overheard him tell defendant MacArthur he (Kenneth) was sorry he had not been successful in the suicide attempt. He did not convey this information to any doctors or to Kenneth's family.

Mr. Rea also testified that while Kenneth was in the hospital following his suicide attempt, he told the youth it was his legal duty to see the hospital psychologist before he could be discharged. Aside from this occasion, Mr. Rea never recommended Kenneth see a psychologist or psychiatrist. Nor did he recommend to Kenneth he consult with anyone else, with two exceptions. At one time Rea asked Kenneth to consult with Mrs. Rea about his girlfriend. He also counseled Kenneth he should get help from God. When Mr. Rea visited Kenneth at the hospital, Kenneth stated if he had an opportunity when he was released he would try suicide again. Mr. Rea did not tell this to the Nally family, nor the doctors. He stated to do so would be like going to a fire, seeing firemen there and calling the fire department. (Other evidence at the trial indicated Kenneth never expressed similar sentiments about his intent to commit suicide to his parents or to any of the doctors or anyone else.)

Kenneth also was in a counseling relationship with defendant Thomson. Mr. Thomson was a pastor at the Church. He had one course in psychology in college. He studied biblical or pastoral counseling at a seminary. He considers Bible study gave him a very good background to help people with their problems. He has read books on secular psychology as opposed to Christian psychology. The Church would try to help anyone with emotional problems if they came in. He believes the Bible gives the root answer to why emotional or psychiatric problems exist. If there are physical manifestations such as a brain tumor, then it is important to have a medical doctor involved. It is his conviction that to settle for an answer from secular psychiatry or psychology is to settle for less than God's goal. Thomson counseled people with severe problems and those with suicidal ideation. He talked with Kenneth about suicide. He thought a biblical counselor could help Kenneth and did everything he could to give biblical help. He met with Kenneth three times in all, beginning a month before the suicide attempt which put Kenneth in the hospital. He did not tell Kenneth's father that Kenneth contemplated suicide. His second and third sessions with Kenneth were after the hospitalization.

According to his testimony, Defendant Thomson sees nothing wrong with having a medical doctor prescribe medication for depression, but would not refer someone to a psychiatrist, generally, unless he believed the psychiatrist had a "world view" or was "coming from the viewpoint consistent with the scripture." Because Mr. Thomson has Defendant MacArthur was the pastor-teacher of Grace Community Church. It is his name on the marquee in front of the Church building. He never had a counseling relationship with Kenneth prior to visiting him at the hospital after Kenneth's suicide attempt. At the hospital Kenneth said he was sorry he had not succeeded in taking his life. After hospitalization Kenneth stayed in Mr. MacArthur's home for some days. Mr. MacArthur was of the view Kenneth was deeply depressed and his depression was beyond Mr. MacArthur's capabilities to deal with. According to Pastor MacArthur's testimony, he encouraged Kenneth to see the doctors he had seen in the hospital. Pastor MacArthur also testified nothing in the Church's religion makes it theologically improper for Kenneth to have seen a psychologist or psychiatrist. The witness stressed to Kenneth he should fulfill his obligation and see the doctors at the hospital whom the witness thought were...